Day v. Solomon

Brown, C. J. Was the widow entitled to dower out of the land which the husband had agreed to sell during his lifetime? The record shows that the deceased had executed and delivered a bond for titles to the plantation in Macon county to N. W. Massey. The price agreed on was $40,000 00. No part of' the purchase-money had been paid when Mr. Day died.. ,Part of it has’been'paid since, and part remains unpaid. The widow is entitled to dower out of all the lands of which the husband was seized and possessed at the time of' his death : Revised Code, section 1753. Seisin is the possession of an estate of freehold. Seisin was used in contradistinction to that precarious kind of possession by which. [34] tenants in villenage held their lauds, which was considered to be the possession of their lords in'whom the freehold continued: 2 Bouv. L. Dic., 503. In the United States a conveyance by deed, executed and acknowledged, and properly recorded according to law, and the descent cast upon the heir, is, in general, considered as a seisin in deed without entry; and a grant by letters patent from the commonwealth has the same effect: 4 Mass. R., 546; 7 Masp. R., 494; 15 Mass. R., 214; 1 Munf. R., 170. The recording of a deed-is equivalent to livery of seisin: 1 Mass. R., 546. A seisin in law of the husband will be as effectual as a seisin in deed, to render the wife dowable: 2 Black. Com., 131. The law deems evéry person to be in legal seisin and possession of the land to which he has perfect and complete title, and this seisin and possession is co-extensive with his right, and continues till he is ousted thereof by an actual possession by another under a elaim of right. This may be considered a settled principle of the common law, and has been recoguized and adopted by the Supreme Court of the United States. 20 Ga., 324. It follows, therefore, that the widow is dowable of all the( lands to which the husband had a complete and perfect title at the time' of his death, whether he was in the actual possession, or some ohe else, holding in subordination to his title, actually occupied the premises at the time of his death. In conformity to this rule it was held by this Court in 10 Georgia, 321, that the widow is entitled to dower in the wild' and uncultivated lands of which' her husband -was seized at the time of his death. Was Mr. Day seized and possessed of the plantation in Macon, county in the sensé in which these terms are used by the statute, at the time of his death? We have already seen that the owner, who has a perfect and complete title to the land, which is held in subordination to his title, is seized and possessed of it. It is not denied that Mr. Day had the legal title to the land when he made the agreement to sell to Massey. Did that sale divest his legal title ? Clearly not. Day had given bond for titles when the purchase-money was paid, and at the, time of' his death the pur [35] chase-money was all clue and unpaid,’and no deed had been executed to Massey. In this state of the case the perfect legal title remained in Day, and Massey held the land in subordination to Day’s legal title. The same rule applies to the smaller plantation. A vendee entering into possession of land, under a bond for titles, does not hold adversely against the vendor until the purchase-money is paid. In such case the possession of the vendee is not only consistent with the title of the vendor, but the very bond which the occupier relies on as color of title recognizes paramount title in the vendor. 17 Ga., 600. Again, this Court held at the last term in the case of McHan vs. Stansell, 39 th Georgia, Reports, 197, that: If the obligee, in a bond for titles to land, fail to pay the purchase-money according to the agreement, no demand or notice to quit is necessary to give the obligor a right of entry or action. And why not ? Simply because the obligor has a perfect legal title to the land. If so, it follows that the widow, in case of his death, has a right to dower out of it. It is insisted in the argument that the obligee, by paying up the purchase-money after it is due, has a right to require the obligor to make him a title.' If so, this right can not defeat the widow’s right to her dower. No lien created by the husband in his lifetime, though assented to by the wife, shall, in any manner, interfere with her right of dower: Revised Code, section 1759. The husband cannot, by a mortgage, for instance, in his lifetime interfere with the right of his yddow to dower. And he can no more bar it by a contract to sell the land which has not been consummated by passing the legal title out of himself into the vendee. If the obligee in this bond should pay up the balance of the purchase-money, and' demand a title from the executor, within such time, and under such circumstances as to entitle him to relief, he must either take the land subject to the widow’s dower, and look to the estate of her husband for the damage which he may sustain by that encumbrance, or he must refuse to take the land so encumbered, and proceed against the estate for full damages, in which case the land [36] would still be the property of the estate subject to the widow’s dower. This is a proceeding to recover money in lieu of dower under our statute, which can only be done with the consent of the executor and the approval of the Ordinary. Revised Code, sec. 1761. Judgment reversed.