Rowland v. Prather

Irving, J., delivered the opinion of the Court. Upon a bill filed for the partition of Samuel L. Prather’sreal estate among his heirs-at law, a decree was passed in August, 1856, adjudging the land impartible, directing a sale for the purpose of partition, and appointing a trustee to make the sale. More than two years after decree passed, Samuel Gideon Prather, one of the co-parceners, and one of the parties to the suit, was married to theappellee. The sale had not then been made, and was not made until December, 1862; and before that sale was. made, Samuel Gideon Prather died, leaving his wife, the appellee, surviving him.

The sale was made, reported to- and ratified by the Court. The purchaser paid all the-purchase money, and it was distributed among the parties claiming to be entitled to it. The portion of the ²³⁷ appellee’s husband, upon the interlocutory petition of his creditors, to which the appellee was' made a party, as administratrix of her husband, was distributed according to «the prayer of the interlocutory petition among the creditors of Samuel Gideon Prather, and the balance of his' share was divided among his brothers and sisters surviving him, as he had no children. Ho allowance was made the appellee out of said fund for her dower, and no application was made in that case for such allowance ; hut by independent hill against the appellant, who purchased the land the appellee seeks to have dower assigned to her according to the interest of her husband in the land sold.

The Circuit Court decreed in her favor, and our inquiry, on this appeal, is simply this: Did the decree for sale, for the purpose of partition, which passed before the marriage of the appellee with her husband, who was one of the co-parceners and one of the parties to the suit, and who died before the sale, bar the appellee from claiming dower from the purchaser ? The solution of this question involves inquiry into the character of the appellee’s rights which vested in her by the marriage, and also into the extent and operation of the decree as respects her rights. The rule in dower which the common law has given us is, that “ a woman shall he endowed of all the lands of which her husband was seized during the coverture, which any issue of hers by him could inherit.” The kind of seizin which is meant in this definition of dower, is not necessarily an actual seizin, or corporal seizin ; hut it is a seizin in law, which implies and involves the right to an immediate corporal seizin. 1 Washburn on Real Property, (4th Edition,) 215. Dower, until it is assigned, is a mere right.

It requires actual assignment for corporal possession, to raise it into an estate. The right to its assignment is not transferable, so that the assignee may compel its assignment to him for actual possession. After it is assigned, it will pass by conveyance as other estates. 1 Washburn ²³⁸ Beal Property, secs. 349, 350; 2 Scribner, 26. Dower, therefore, is the right to the possession in severalty of a certain portion of the husband’s lands for life, under the circumstances, covered by the foregoing definition ; and^it is to secure that enjoyment in specie this appellee is seeking ; and unless the decree for partition in the case mentioned so concluded the rights of the several parties, or so changed the respective powers of the several tenants in common over the land decreed to be sold as to bar her rights, which, whatever they are, accrued after decree had passed, her claim must be allowed.

All authorities agree that the wife acquires no new freehold, hut that Tier seizin is but a continuation of her husband’s seizin. 1 Bishop’s Law of Married Women, 355; Emerson vs. Harris, 6 Metcalf, 477-8. The general rule is, that the wife’s dower is liable to he defeated by every subsisting claim, or encumbrance in law or in equity, existing before the inception of her right, and which would have defeated the husband’s seizin. 1 Scribner on Dower, 564; 4 Kent, 50, and Bishop on Married Women, 282. If therefore, the decree for sale devested or defeated in any way the husband’s right to a several corporal seizin, the case falls 'under the general rule. The Court below places its ruling wholly on the ground that the conversion from realty into personalty, was not effected by the decree, and therefore as the widow o'f one of the tenants in common, she was entitled to dower notwithstanding the marriage was after the decree.

With this reasoning we cannot concur. It does not follow that because the conversion from realty into personalty was not completed by the decree, the rights of the appellee were not affected by it. If that view be sound, then the marriage of the appellee with one of the tenants in common at any moment before the sale was made, or at any moment after the sale, and before its final ratification by the Court, if her husband died also before the ratification, would interject new rights as against the ²³⁹ purchaser, no matter how ignorant the trustee or purchaser might have heen of such action of one of the parties; for the conversion is not consummate until the final ratification of the sale by the Court. If because the conversion is not completed, the dower in this case is not defeated in the hands of the purchaser, then it follows that if the purchaser had bpught for cash and paid it, and the ratification of the sale from any cause was delayed, and before ratification one of the parties had married and died, leaving his widow surviving, the purchaser would have heen subjected to dower, unless the proceedings were suspended, the sale set aside, and the widow was regularly brought in, and a new sale made ; and if perchance the marriage was not discovered till after ratification, he could not escape dower.

This cannot he. Sound doctrine and policy can involve no such awkward and unjust results. The view we take of it does injustice to pobody, and protects every one. The decree was an adjudication that the land was not divisible so that it might he enjoyed by the several parties, in several parcels, and a determination that the land must he sold for the purposes of partition between the parties.

By it, the Court “ virtually took possession of the land,” to use the language of Chancellor Bland in Williams’ Case, ( 3 Bland, 215 ,) “for the purpose of equally dividing the proceeds of sale among the parceners.” We,cannot concur in the view expressed by the Chancellor, that “ the title was vested in the Court,” for the purpose of distribution. Technically speaking, there was no vesting of title in the Court; but from the date of the decree, the land was under the power of the Court, for the purpose of the sale decreed to he made. The Chancellor illustrates by a case where waste was being committed, and the trustee appointed to make the sale, hut who had not yet sold, applied for injunction to stay the waste; the Court issued the injunction to stay the commission of the waste. ²⁴⁰ The decree bound all the parties to the suit, and all their privies by representation or in estate. After the decree the husband could never have possessed his share of the land in severalty without in some way getting rid of the Court’s decision, by reversal, rescission, or some effective agreement between .the parties, doing away with the necessity of executing the decree.

He could, do no act which would operate as a livery of seizin, with the right to take actual possession in severalty. Although the estate of the husband was not taken away, his powers over it were somewhat restricted by the decree. For the purpose of descent and distribution of the proceeds of sale it still retained its character as real estate. His interest would still have passed by deed, but the alienee would have taken subject to ¿the decree.

His heirs, to whom his interest descended, were bound, as he was, by the decision that the land was indivisible, and after his death they could not have assigned dower to the widow. Their right to the actual possession in severalty of their father’s share was cut off by the decree, so that the widow could not receive from them assignment of dower in land. The father’s share in land being unascertainable, there was no way of giving her the third of it to possess No doubt she acquired rights which would have been recognized, and ought to have been recognized, had she sought an assignment of part of the proceeds of sale® In equity, she would have been entitled to her portion in lieu of dower, as the proceeds represented land, in which, because of the decree, and only because of it, she could not obtain her dower in land. Had she been married before the decree, and been made a party to the proceeding, the sale of the land clear of her dower would have been decreed under the Act of 1839, chapter 23, (which gives section 33 to Article 16 of the Code,) and she would have been allowed a portion in money in lieu of her dower.

In Warren vs. Twilley, 10 Md., 51 , Judge Eccleston, speaking for this Court, ²⁴¹ says, it is by no means clear that, prior to the Act of 1839 a decree for