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the wife was not a party; 2. If so, whether the same rule would apply where the husband, though made a party to the proceedings for partition, had previously conveyed his undi. vided interest to a third person who was also made a party; 3. Whether the circuit judge erred in finding as matter of fact that William H. Carey died testate; 4. If not, whether the former court of equity had the power to sell lands of a testator for partition amongst those entitled thereto; and if 80, whether the inchoate right of dower of the wife of one of the tenants in common would be barred by such sale under a proceeding to which she was not a party.
As to the first question, we are of opinion that while the wife of one of several tenants in common bas an inchoate right of dower in her husband's portion of the real estate heid in common, yet such right is subordinate to the paramount right of the other tenants in common to have partition of the common property in any of the modes by which such partition may be lawfully made. Hence if a sale for partition becomes necessary, the wife's inchoate right of dower in the land is barred, even though she is not a party to the proceedings for partition; and the purchaser at such sale takes his title disencumbered of such subordinate right of dower. As is said in 1 Washburn on Real Property (3d ed., bk. 1, c. 7, sec. 2, par. 10, p. 185): “The wife of a tenant in common holds her inchoate right of dower so completely subject to the incidents of such an estate that she not only takes her dower out of such part only of the common estate as shall have been set (off) to her husband in partition, but if, by law, the entire estate should be sold in order to effect a partition, she loses by such sale all claim to the land, although no party to such proceedings." Whether, in such a case, some provision should be made for the protection of the wife's inchoate right of dower, in the event it should afterwards become absolute out of the husband's share of the proceeds of the sale, is not a matter now before us, and will not, therefore, be considered.
So far as our experience extends, this rule has always been recognized in this state, and we are not informed that it was ever before questioned. The reason of this rule is this: The right of the other co-tenants to demand partition being paramount to the inchoate right of dower in the wife of any one of the co-tenants, whenever the paramount right is exercised, the subordinate right cannot properly be allowed to interfere with or abridge the full enjoyment of the paramount right. Inas
much as the inchoate right of dower springs out of and is necessarily dependent upon the concurrence of marriage and seisin of the husband during coverture, it must necessarily depend upon and be qualified by the nature of such seisin. If, therefore, the nature of the husband's seisin be such as will not support the claim of dower, -as, for example, the husband be seised as trustee, - it is competent for the defendant in dower to show such defect in seisin as a defense to the claim of dower. See what is said in Whitmire v. Wright, 22 S. C. 451, 53 Am. Rep. 724, commenting on the case of Gayle v. Price, 5 Rich. 525.
So, also, the husband's seisin may be shown to be subject to the lien of a purchase-money mortgage, and therefore not of such a character as will be sufficient to support the claim of dower as against such paramount right: Crafts v. Crafts, 2 McCord, 54. And the same doctrine applies where the inchoate right of dower is subordinate to the lien of a judgment recovered before the marriage: Jones v. Miller, 17 S. C. 380. Again, the rule is well settled that while a judgment against one of several tenants in common is a lien upon the undivided interest of such tenant in common, under which such undivided interest may be levied on and sold, yet such encumbrance is subordinate to the paramount right of the other tenants in common to demand partition; and if a sale of the undivided property is made for that purpose, the purchaser takes his title freed and discharged from such subordinate encumbrance on the share of the judgment debtor, and the creditor is remitted to his debtor's share of the proceeds of the sale, even though the judgment creditor is not a party to the proceedings for partition: Keckeley v. Moore, 2 Strob. Eq. 21; Riley v. Gaines, 14 S. C. 454; Ketchin v. Patrick, 32 S. C. 443. See also Shiell v. Sloan, 22 S. C. 157.
Now, while these are cases of liens or charges upon the common property, or rather upon the interests of one or more of the tenants in common, and while the inchoate right of dower may not, properly speaking, be a lien, yet the principle upon which they rest is applicable here, to wit, that the enforcement of a paramount right must not be interfered with or abridged by persons holding subordinate rights, whatever be their character. Hence, as the inchoate right of dower arises out of and is dependent upon the nature of the husband's seisin, such inchoate right must necessarily be affected with any infirmities of such seisin, and be qualified by any
paramount right subject to which it has been acquired; and where, as in this case, the husband's seisin was qualified by and subject to the paramount right of the other co-tenants to demand partition, the plaintiff's inchoate right of dower, growing out of and dependent upon such seisin, was subject to the same qualification. When, therefore, the seişin of the husband was divested by the exercise of the paramount right of the other co-tenants to demand partition, the inchoate right of dower was likewise destroyed, so far, at least, as the land was concerned, and the plaintiff was no more a necessary party for that purpose than is a judgment creditor of one of several tenants in common in case of a sale of the common property for partition: Keckeley v. Moore, 2 Strob. Eg. 21; where, as pointed out in the circuit decree, the point here involved, though not discussed, was practically decided.
The second question involves an inquiry as to the effect of the sale by Alfred Holley to Wise Holley of his undivided one half of the common property prior to the institution of the proceedings for partition, under which the land was sold to John Holley. It seems to us that the conveyance to Wise Holley placed him in the shoes of Alfred Holley, invested him with the same seisin, subject to the same qualifications, with which his grantor, Alfred Holley, had previously been invested, and made him a tenant in common with the other joint owners of the land. When, therefore, such seisin was divested by the sale for partition, the effect, so far as any subordinate right dependent upon such seisin was concerned, was the same as if the title and such seisin had remained in Alfred Holley. When the basis upon which the subordinate right of dower rested was destroyed by the exercise of a right paramount to the inchoate right of dower, such right necessarily fell with it, and could not be asserted against one claiming under a right paramount to it. We are therefore unable to see how the conveyance by Alfred Holley to Wise Holley could affect the question which we are called upon to determine.
The view taken by the circuit judge, that by reason of such sale the plaintiff's inchoate right of dower was not sufficiently represented in the proceedings for partition, does not seem to us to be sound, for we do not think it is a question of representation at all. If Alfred Holley had never sold and conveyed his undivided interest to Wise Holley, we would not be disposed to hold that the plaintiff's inchoate right of dower was barred by the sale for partition, because though she was not a party to the partition proceedings, yet her interest was represented therein by her husband, who was a party. On the contrary, our view is, that such inchoate right of dower was defeated by the exercise of a right paramount to it; practically, that such inchoate right of dower in her husband's share of the common property was contingent upon the nonexercise of the paramount right to demand partition by a sale of the common property; but when such paramount right was exercised, the contingency upon which such subordinate inchoate right of dower rested could never happen, and hence it could never afterwards become absolute. Indeed, it would be anomalous to hold that the purchaser at a sale made under the exercise of a paramount right should take his title subject to one claiming under a subordinate right. Under this view we do not see how it is possible that the transfer by Alfred Holley of his interest to Wise Holley prior to the proceedings for partition can affect the question; nor do we see any necessity for making the plaintiff a party to the partition proceedings, for she then had no such interest in the property sought to be partitioned as rendered her a necessary party, in any sense of those terms, and since the sale she never could have any such interest.
The third question, under the view which we shall take of the fourth, becomes wholly unimportant, and as it is a mere question of fact, will not be considered.
The fourth question has been so fully and satisfactorily discussed by the circuit judge in his decree (which should be incorporated in the report of this case), that we find it very difficult to add anything to what is there so well said. It is there shown that the power of the former court of equity to order a sale of land for partition, owned by several tenants in common, either as distributees of an intestate's estate, or otherwise, is not derived from or dependent upon the provisions of the act of 1791, but existed and was exercised long before the passage of that act, - an instance of which will be found in the case of Dinckle v. Timrod, 1 Desaus. Eq. 109, decided in 1784, seven years before the passage of the act of 1791. This was expressly decided in the case of Pell v. Ball, 1 Rich. Eq. 361, and the doctrine was recognized in the subsequent cases of Steedman v. Weeks, 2 Strob. Eq. 145, 49 Am. Dec. 660, and Gibson v. Marshall, 5 Rich. Eq. 254. While, therefore, it may be true that the court of common pleas, deriving its power, in this respect only, from the act of 1791, can only order a sale for partition in cases of intestacy, as has been held in the cases of Crompton v. Ulmer, 2 Nott & McC. 429, Spann ads. Blocker, 2 Nott & McC. 593, and Barns v. Branch, 3 McCord, 19, yet these decisions cannot affect, and do not purport to question, the long-established, and as we may say the universally recognized, powers of the court of equity in this respect, under which, as is said by Harper, C., in Pell v. Ball, 1 Rich. Eq. 361: "Titles have accrued and money has been paid and invested; thus involving, perhaps, the titles of a large portion of the property of the country.” We would not feel at liberty, at this late day, to disturb or even question what may be called a rule of property so long establshed, even if we entertained much graver doubts than we do of the authority of the rule.
We concur, therefore, in the conclusion reached by the cir. cuit judge as to this matter, that the power of the former court of equity to order a sale for partition is not confined to cases of intestacy, and that the inchoate right of dower of the wife of one of the several tenants in common is defeated by such a sale, even though such wife be not a party to the proceedings for partition. But as we differ with the circuit judge as to the effect of the transfer of Alfred Holley's interest to Wise Holley, as we have herein before indicated, the judgments below must be reversed.
The judgment of this court is, that the judgment of the circuit court in each of the cases stated in the title be reversed, and that the complaints therein be dismissed.
DOWER – WHETHER EXTINGUISHED BY PARTITION - SALE AGAINST Hus.
A sale of lands in partition proceedings is a judicial sale, and such sale of a husband's interest in land, in a proceeding to which he is a party, extinguishes the wife's right of dower therein, although she was not made a party to the proceeding: Williams v. Wescott, 77 Iowa, 332; 14 Am. St. Rep. 287; Lee v. Lindell, 22 Mo. 202; 64 Am. Dec. 262, and note; Weaver v. Gregg, 6 Ohio St. 547; 67 Am. Dec. 355, and note. See also Verry v. Robinson, 25 Ind. 14; 87 Am. Dec. 346, and note.
EQUITY – JURISDICTION – PARTITION. — Courts of equity have exclusive jurisdiction of suits for the partition of personal property, even though the complainant's title is denied by the defendant: Godfrey v. White, 60 Mich. 443; 1 Am. St. Rep. 637, and note. Contra, see Gudgell v. Mead, 8 Mo. 53; 40 Am. Dec. 120, and note. A court of equity will decree partition of lands, if it is in possession of the co-tenants: Weeks v. Weeks, 5 Ired. Eq. 111; 47 Am. Deo. 358. Seo Steedman v. Weeks, 2 Strob. Eq. 145; 49 Am. Deo. 660.