Slaughter v. Culpepper

McCay, Judge. Were this Court authorized to determine the question made in this record, upon its conceptions of what ought to be the law, we should not hesitate to decide for the defendant in error. It is manifestly unjust, that the widow of the vender of land, should have her dower in it until the purchase-money is paid. And yet, both in England and in this State, if the title has passed to the vendee, the rule is well established that the right of dower attaches, even to the exclusion of the vendor’s lien. And this, after solemn argument, was the decision of this Court, in the case of Clements vs. Bostwick, 38 Georgia Reports, 1. That the vendor does not, reduce his lien to writing, in the shape of a mortgage, but suffers it to rest upon the right given him by the law, can make no difference as to the justice of the case. It is just as inequitable to give the wife dower in land that is not paid for, and which has resting upon it the vendor’s equitable mortgage, as to give her dower in land which has resting upon it a formal mortgage, put into writing for the purchase-money. But it is not for Courts to set up their notions of justice, against the legislative will. Our statute, Code, section 1753, expressly provides that the wife shall have dower in all lands of which her husband died seized. And section 1759, provides that no lien created by the husband during his lifetime [321] shall, in any manner, interfere with the wife’s right of dower. The only question that oan be asked, at the death of the husband, is, was he seized and possessed of the land? Was the title in him ? If so, the wife, by the positive provisions of the statute, is entitled to dower. No lien created by the husband can interfere. In England, and in most of the States, it is held that, if a deed and a mortgage for the purchase-money are executed colemporaneously, no such seizin of the land passes to the husband, as makes the wife endow-able. See 1 Scribner on Dower, and the cases cited. But it will be found that these cases all turn on the well settled rule, that, at law, a mortgage is a title — that the seizin is in the mortgagee — and it follows that, as the seizin of the husband is only transitory in the case put, the right of dower does not attach. It is admitted, that if the title be in the husband, but for a day, the seizin is complete, and the right of dower attaches. The English cases turn wholly upon the^tcchnical legal proposition that a mortgage is a title and not, at law, a mere lien. Our Code, section 1944, declares expressly the contrary. It says a mortgage in this State is only a lien, and conveys no title. The argument is irresistible that, as a mortgage, in Georgia, conveys no title, the English doctrine that the right of dower does not attach because the seizin of the husband is only transitory, caunot have, in this State, any force. The rule that the wife’s dower yields to a mortgage for the purchase-money made colemporaneously with the deed, dependent, as it is, solely upon the technical rule that a mortgage is a title, wholly fails in this State when, by the express statute, this character of a mortgage is directly repudiated, and the contrary declared to be the law. Some of the American cases deny the right of dower, not only on the idea that the mortgage is a title, but upon the further ground that there is an equity in favor of the vendor which overrides the right of the wife. (Though, in this State, the vendor’s lien is abolished. Code, 1978.) Indeed, it would seem that [322] the Courts have felt that the mere technical idea of a mortgage being a title was an unsatisfactory ground to put it upon. And they have, many of them, made it turn upon the idea that the mortgage being for the purchase-money, the vendee took the land with the incumbrance upon it. These cases recognise the right of the wife to dower, but they declare the dower subject to the mortgage, as it would be to any other lien upon it lawfully when the husband got his title. This is, without doubt, a more satisfactory ground to rest upon than the English idea of a want of seizin in the husband; since, in fad, even in England, a mortgage is not a title, whatever it may be in theory. But, our Code will not allow us even to deny the dovver on this idea. True, the mortgage is a lien, which went upon the laud at the moment the title was acquired, and in a very true sense it may be said that the husband took the land with the lien upon it. For this reason, our Court, in Scott, Carhart & Company vs. Warren & Spicer, 21 Georgia, 408, decided that a mortgage for the purchase-money, executed cotemporaneously with the deed, had a preference to judgments then existing against the vendee. And, were there nothing in our law on the subject of dower, except the simple statement that the wife is entitled to dower in all lauds of which her husband died seized, we should be inclined to hold that the wife took subject to the mortgage, as she would to any other incumbrance on the land existing at the time the title of the husband accrued-But section 1759 of the Code provides that no lien created by the husband shall in any manner interfere with the dower. Was this mortgage lien created by the husband ? Without doubt it was. How, then, can we give it, in any manner, preference to the dower? What right have we to add an exception to the statute; especially when it contains such positive language, how can we give a preference ? If we say that the husband may, by creating a lien for the purchase-money cotemporaneously with the deed, do we not, at least, inone case, allow a lien created by the husband in some manner to interfere with the wife’s right of dower ? [323] If men will be careless enough to convey title to lands, with the purchase-money unpaid, they take the risk, not only having the land sold, but in Georgia, they have no lien, and even if they take a lien in writing, they stand, as do other persons who take liens: they yield to the wife’s right of dower. AVe do not think the definition of “dower,” in the Code, was intended to change the rights of the parties. By the words, “seized and possessed,” is simply meant, “ has the title.” Any other construction would deprive the wife of dower in wild lands. The title to these lands was, at his death, in Slaughter, and his mere obligation to another to make a title, on certain conditions which have not been performed, does not, in our opinion, alter the wife’s right. AVIiat equitable rights might arise in a case where a portion of the condition was performed, we do not decide, as there is no such fact in this case. Judgment reversed. Wajrnek, Judge, concurred, but delivered no opinion.