Trustees of Poor v. Pratt

Mason, J'., delivered tire opinion of this court. This is an action at law, for dower, instituted by the appellee. The prominent and controlling question of the case is, whether a sale of real estate, under an execution upon a judgment rendered against a party prior to his marriage, would defeat the claim of his widow to dower? This question is conclusively settled, upon authority, in the affirmative.

Kent, in his Commentaries, 4th Vol., page 50, thus states the law: “As a general principle, it may be observed that the wife’s dower is liable to be defeated by every subsisting claim or encumbrance, in law or equity, existing before the inception of the title, and which would have defeated the husband’s seisin.” The same doctrine is more broadly affirmed in the case of Greene vs. Greene, 1 Ohio Rep., 542. In speaking of the widow’s right to dower, Judge Sherman says: “Her estate is but part of his, is derived from him, and must be subject to all incumbrances existing against it at the time of the marriage, or the acquisition by the husband.” The same doclrine is announced in the case of Scott vs. Howard, 3 Barb. Rep., 319 , and also in our own chancery court, in the case of Mantz vs. Buchanan, 1 Md. Ch. Dee., 202, as well as a number of other well ad judged cases. ¹² But the soundness of this doctrine seems not to be denied by the appellee’s counsel, but it is contended, that such a defence cannot be resorted to in an action at law, but is only availing in equity, if it can be relied on at all.

We tliink the contrary is settled by the General Court of this State, in the case of Lane vs. Gover, 3 Har. & McH., 394. That was a case, like the present, at law, and the court permitted a sale under a lien subsisting prior to marriage, to defeat the claim of the widow to dower, and the mere circumstance that the lien bound the land in the lifetime of the husband’s ancestor, does not affect the principle, as the appellee’s counsel supposes, that such a defence would be availing at law. It is further contended, that the defence relied upon in this case is not availing, because the lien of the judgment upon which= the sale was based has either been waived or defeated, by proceedings had upon it subsequent to its rendition; or that the sale by the sheriff was irregular and illegal, and therefore conferred no title upon the purchaser. It is contended, in the first place, by the appellee’s counsel, that the arrest of the defendant in the judgment, under a ca. sa. issued thereon, prior to the marriage, either amounted, in law, to a satisfaction of the judgment, or waived or suspended the lien thereof, so as to allow the dower to attach upon the lands.

The contrary principle has been adopted in this State, as well as by the Supreme Court of the United States, in the case of Tayloe vs. Thomson, 5 Peters, 357 . In that case the court say: “The greatest effect, which the law gives to a commitment on a ca. sa., is a suspension of other remedies on the judgment during its continuance.” It is not said that the lien is suspended, but, on the contrary, the court expressly say that-the plaintiff’s “remedies are cumulative and successive, which he may pursue until he reaches that point at which the law declares his debt satisfied. A ca. sa. executed does not extinguish it. If the defendant escape or is discharged by operation of law, the judgment retains its lien and may be' enforced on his property:”