2 Ind. 58 | Ind. | 1850
This was an application, by bili in chancery, for dower in lands of David Cummins, deceased, made in the Jefferson Circuit Court, by Ann D. Cummins, his widow.
The proceeding was against Jesse Whitehead, a pur
The marriage of Mrs. Cummins with her deceased husband, David, from which originates her claim to dower, took place on the 20th day of July, 1841. At that time said David was indebted about 20,000 dollars; for about 10,000 dollars of which there were mortgages by, and judgments against, him, which were liens on the lands out of which his widow is now asking dower. Subsequently, additional judgments were obtained against him, which were also liens on the lands. On the 23d of July, 1844, being after the marriage, he conveyed, his wife not joining in the deed, said lands to J. D. F. Lanier and O. S. Pitcher, in trust, for the payment of his debts. In August following he died. Before his death, there were eight executions against him in the hands of the sheriff of Jefferson county, issued upon judgments above mentioned, and a part of which were formally levied on the lands in question. There were, likewise, judgments upon which executions had not issued. The executions in the hands of the sheriff amounted, in the aggregate, to over 5,000 dollars, and two of them, at least, were upon judgments older than the marriage; but one of these two, having been issued after Cummins's death, was void. The State v. Michaels, 8 Blackf. 436. On the 26th of October next following Cummins's death, the sheriff, having previously advertised, proceeded to offer all of said lands for sale under executions so held by him. The attorney of Mrs. Cummins, being present and having the control of the valid execution which overreached the marriage, and the only valid one in the sheriff’s hands so doing, forbade a sale upon it. One of the trustees to whom the property had been conveyed as above mentioned for the payment of the debts; the executor of the last will of Cummins; Mr. Marshall, the attorney of his widow; Mr. Bright, who owned from 8 to 10,000 dollars of the liens; and Whitehead, who became the purchaser, were present at and before the sale. Immediately preceding its commencement, it was publicly announced by the trustee
The argument upon which her claim is based and was allowed in the Court below, is, that the sheriff’s sale
If the premises of her argument are true, her conclusion is correct. They may be true in point of form, but are they really so in substance? The sheriff’s sale was upon executions on judgments younger than the marriage, and the prior incumbrances were in form paid by the trustees of Cummins’s estate; but whose money was it equitably, in point of fact, that paid those older incumbrances ? How shall the transactions at the sale be regarded? We put out of the question the deed of the trustees made, subsequently to the sale, to Whitehead. It amounted to nothing. It conveyed nothing, for the reason that it could convey nothing. The sale by the sheriff was upon judgments that overreached the trust-deed, and divested the trustees of title. None remained, after that sale, in them. Their deed, therefore, could be no consideration for any purchase-money. How are the bid of Whitehead, his payment of the money to the trustees, and their application of it to the satisfaction of the older liens, to be viewed ? Had Whitehead, knowing there were incumbrances to the amount of 10,000 dollars upon the property, older than the judgments upon which he was purchasing, bid 7,600 dollars instead of 17,600, paid the 7,600 to the sheriff, received his deed, and then proceeded to the clerk’s office with his remaining 10,000 dollars, and discharged the anterior incumbrances, there would have been no doubts as to whose money paid off those incumbrances. It would have been Whitehead’s. Instead of such a course, however, as Whitehead is about to buy the property, the trustees say to him, in lieu of bidding 7,600 dollars, and paying 10,000 additional into the clerk’s office, bid 17,600 dollars, pay the money to us, and we will pay it into the clerk’s office in discharge of the same incumbrances to which you would apply it, and the transaction shall not affect the question of dower, but leave it the same as though you paid the money into the
Such being the case, could Whitehead be subrogated to those elder mortgage and judgment-creditors, or regarded as their equitable assignee, so as to compel the widow of Mr. Cummins to contribute to the payment of said incumbrances or take a proportionally less amount of dower ? If he could, we think, considering the price he paid for the property in question, and the circumstances under which he made the purchase, that justice demands that he should; for though it is said that dower is to be favored, it is not meant, we think, that it should be so at the expense of others’ palpable rights.
Piad those prior incumbrances been all mortgages, there would have been no difficulty in the case. The widow would have been compelled to contribute, or submit to an abatement of dower; 4 Kent, 46. — R. S. ss. 89, 91, p. 429; and this, without the purchaser’s procuring an assignment of the mortgages. Cass v. Martin, 6 N. Pl. 25. — Popkin v. Bumslead, 8 Mass. 491. — Gleason v. Dyke, 22 Pick. 390. And see Swain v. Perrine, 5 John. Ch. R. 482. But a part of those prior incumbrances were mortgages, and, as to them, therefore, the widow should redeem. The mortgages to Bright and Hubbard, and to Hillis, were anterior in date to the marriage, and a large sum was due upon them.
Now, where is the difference in principle between a judgment and a mortgage? One is a general, the other a specific lien; but both are equally liens; both, when existing at the marriage, overreach the dower-right; both are equally debts to be paid out of the estate of the per
This leads us to the inquiry, what was the extent of the right of dower, in this case ? It is not one difficult to de
By a clause in Cummins's will, he gives to his wife a certain lot of ground, then held in trust for her by O. S. Pitcher. It is contended by Whitehead's counsel that, in electing to take dower, the widow was bound to relinquish this lot to the estate which she did not do. We do not think she was required to do so. It appears that this lot was conveyed to Pitcher, in trust for her, by a third person, not by Cummins. He does not appear to have ever had any interest in the lot. The will, as to that, conveyed nothing. Her title to it is not under the will.
It is said that the executor of Cummins's will should have applied the personal assets to the redemption of the real estate for the benefit of the widow. In Gibson v. Crehore, 5 Pick. 146, it is held that the executor of an insolvent estate should not so apply the personal assets.
The decree is reversed with costs. Cause remanded, with instructions to assign dower in accordance with this opinion, &c.