| S.C. | Jan 5, 1886
The opinioil of the court was delivered by
Joseph Williamson departed this life in 1883, seized and possessed of a tract of land containing 3331-acres. In some way net explained the land was afterwards bought by the wife of the defendant, W. B. Gasque, and they w'ent into the possession. The wife died, leaving the land in possession of W. E. Gasque, which was admitted to be subject to the lien of a mortgage. The plaintiff, Emily Williamson, widow of Joseph Williamson, petitioned the Probate Court for dower in the said premises, making W. E. Gasque, who ivas in possession, the defendant.' The probate judge issued a writ for the admeasurement of the dower. The commissioners made return, assessing in lieu of dower in the land, the sum of $85, with interest thereon from May 2, 1883. The return was confirmed, and the said amount ordered to be paid by W. E. Gasque, as well as the costs of the case, $55.50.
Afterwards, the judgment and costs not being paid, the probate judge ordered as follows: “Whereas the commissioners, to whom a writ for the admeasurement of dower in the case was directed, made their return, which by order of this court was confirmed, and by the same the defendant was required to pay the petitioner herein the sum of $85, Avith interest, &c.; and Avhereas the defendant, W. E. Gasque, has failed and neglected to pay the sum so assessed in lieu of doAver, and the costs taxed as aforesaid ; now, therefore, it is ordered that the lands mentioned in the petition and Avrit be sold on Monday, March 2, 1885, or on some convenient salesday thereafter, before the court house door at Marion in said State, within the legal sale hours, for cash, after due advertisement. Ordered further, that out of the proceeds of sale the sum of eighty-five dollars, with interest thereon, &c., together with the costs of sale, be paid to the parties entitled thereto, &c. Ordered further, that any surplus remaining after the payment of the said sum and costs, be paid to the legal oAvner or OAvners of the said lands, who shall apply for and establish his or her rights to the same.”
From this judgment of the Probate Court the defendant, Gasque, appealed to the Court of Common Pleas, and Judge Hudson reversed the judgment and set aside the order directing
“1. Because his honor erred in holding that the payment of the assessment of the commissioners could only be enforced by judgment and execution.
“2. Because his honor erred in holding that a judgment for damages in an action for dower, or for a sum of money assessed in lieu of dower, is not a specific lien upon the land, and to be preferred to older liens.
“3. Because his honor erred in holding that the order of the judge of probate was irregular and void.
“4. Because his honor erred in holding that if the payment of the sum of money assessed for dower could not be enforced by judgment and execution against the property of the defendant, the only remedy for the demandant would be to renew her demand for the admeasurement of dower in and out of the land, which she might do indefinitely, under the forms of law, without securing her dower.”
It is true that dower at common law is a right of the widow to have the use for life of one-third of the lands of which her husband was seized during the coverture. This light is in the land itself wherever it may be found; but our statute upon the subject has enlarged somewhat the manner of enforcing it, by providing that, “when the same [land] cannot, in the opinion of a majority of the commissioners, be fairly arid equally divided without manifest disadvantage, then they, or a majority of them, shall assess a sum of money to be paid to the widow in lieu of her dower, by the heir at law or such other person or persons who may be in possession of said land,” &c. Gfen. Stat., § 2288. As dower proper is an interest in the land itself, it would seem that “the sum assessed in lieu of dower” should also adhere to the land, and accordingly it has been held that, when the claim is set up against the estate of the deceased husband, the assessment, in marshalling the assets, must be considered in the nature of a
But we do not think it necessarily follows that the assessment constitutes a specific lien upon the land, which may be enforced by selling it, where the land has been alienated, and the claim is made against one in possession, who is neither heir nor devisee of the deceased husband, and who may have placed encumbrances upon the land before the assessment was made or even the right of dower had accrued. The statute authorizing the assessment as a substitute for dower certainly does not expressly give it any such specific lien, nor indeed any special means for its enforcement; but, on the contrary, simply characterizes it as “a sum of money to be paid to the widow in lieu of her dower.” We know of no principle which would allow the court to supplement the act by giving the assessment any higher force than that which arises from its being reduced to judgment against the person who happens to be in possession of the land. The act seems to assume that the sum of money assessed would be “paid to the widow in lieu of her dower,” and until that is done the substitute contemplated has not been given or accepted, and the right to dower, not having been extinguished, still exists. As was said in the case of Bauskett v. Smith, 2 Rich., 167: “In any view the assessment is to be in lieu of dower. That is, when it is paid it is in discharge of the claim of dower. There may be cases in which the' heir at law or purchaser, being insolvent, could not .pay the sum assessed. In such case the widow would have a clear right to fall back on her absolute right in the land, which can neither be defeated by the alienation of the husband nor by the insolvency of the purchaser. She would have the option to take the per
The judgment of this court is that the judgment of the Circuit Court be affirmed.