McPhaul v. McPhaul

Beck, P. J. (After stating the foregoing-facts.) The decision in the case of Harris v. Powers, 129 Ga. 74 (58 S. E. 1038, 12 Ann. Cas. 475), and the cases which are there cited, quoted from and discussed, render unnecessary any lengthy discussion of the controlling issue in the case at bar. The opinion in Hams v. Powers contains a lengthy and elaborate discussion of the main issue here involved, and a mere repetition of that discussion would be without profit. But the following lays down a doctrine directly applicable to the issues in this case, and for that reason we make the following quotation from the decision referred to: "Whatever may be the justice or injustice of the English rule as to dower in an equity of redemption, or what is analogous to it under our system, it was enacted by the legislature of this State, on February 25, 1784, that the common law of England, of force prior to May 14, 1776, should be of force in this State. Cobb’s Digest, 721; Pol. Code, § 1, par. 3; Prince’s Digest, 570. Thus then, so far as the common-law rule is applicable to the present situation, it must remain of force until changed by legislation. Dnder the common law, dower attached to all of the lands and tenements of which the husband was seized in fee simple or fee tail at any time during the coverture, and of which any issue which the wife might have had might by possibility have been heir. Dnder the law of this State, ' dower is the right of a wife to an estate for life in one third of the lands,, according to valuation, including the dwelling-house (which is not to be valued unless in a town or city), of which the husband was seized and possessed at the time of his death, or to which the husband obtained title in right of his wife.’ Civil Code, § 4687. . . But it will be noticed that to entitle a widow to dower the husband must have died seized and possessed. Except as modified by statute, and with a possible exception in 10 Ga.- infra, the word 'seized’ has always been treated as referring to a legal title, or certainly a perfect equity, equivalent thereto, relatively to applications for dower. "In Chapman v. Schroeder, 10 Ga. 321, dower was recognized [491] as a legal claim. It was indeed there held that a widow was dowable of wild and uncultivated lands, whether in England she would have been so or not, owing to the situation and circumstances of our people, as well as by reason of implications from certain laws. In Bowen v. Collins, 15 Ga. 100, it was held that a purchaser of land who held under a bond for title, with part of the purchase-money paid at the time of his death, was not seized and possessed of the land within the meaning of the law. It was said, that, whatever might be the meaning of the word ‘seizin/ it included in it this ingredient: ‘A title which is complete/ See also Clements v. Bostwick, 38 Ga. 1; Day v. Solomon, 40 Ga. 32; Kinnebrew v. McWhorter, 61 Ga. 33; Raley v. Ross, 59 Ga. 862; Hill v. Hill, 81 Ga. 516 (2) [8 S. E. 879]; Pirkle v. Equitable Mortgage Co., 99 Ga. 524 [28 S. E. 34] (the ruling that the clause inserted in the conveyance involved in that case made it a mortgage has since been reversed in Pitts v. Maier, 115 Ga. 281, 285 [41 S. E. 570]); Ferris v. Van Ingen, 110 Ga. 102, 115 [35 S. E. 347].” The application of this doctrine to the facts of the present case required the judgment of the court below which is complained of, unless a construction of the act of October 8, 1885, relating to the assignment of dower in lands partly paid for (now embraced in section 5248 of our Civil Code), in accordance with the views presented by counsel for plaintiff in error, takes the present case out of the operation of the rule stated in the quotation made above. Code section 5248 reads as follows: “Dower may be assigned in lands held under deed, bond for titles, or other instrument in writing having like effect, where a portion of the purchase-money has been paid, but the estate in dower shall be liable for the unpaid purchase-money where the vendee held under bond for titles or other instrument having the same effect, or under deed where contemporaneously with the execution of the deed the vendee encumbered the ' land with a mortgage for the purchase-money.” Counsel for plaintiff in error insists that the provision of the statute quoted, covers any case involving facts similar to those here involved. But it can not be made to do so, unless it is done by an extension of the provisions of this statute. This statute covers merely the instances enumerated therein, and provides for the assignment of dower in lands “held under deed, bond for title, or other instru [492] ment in writing having a like effect, where a portion of the purchase-money has been paid.” The plain meaning of this statute is that in a case where one desirous of acquiring other lands has contracted for the purchase thereof and has taken a bond for title for the conveyance of those lands to himself, his wife, where part of the purchase-money has been paid, may have dower assigned to her out of such lands. That is not the present case. The present case is one of the conveyance by the owner of lands to secure a debt and the taking of a bond for title for the reconveyance upon the payment of that debt. To hold that a case like this falls within the provision of Code section 5248 would be adding to and widening the terms of that statute, which a court is not authoried to do. It is clear that but for the terms of the law embraced in section 5248 of the Code the wife would have no claim of a right of dower in the lots of land in controversy; and as she does not bring herself within the provisions of that statute, her claims can not be upheld. The court properly refused to allow the return of the commissioners assigning dower in tile lots of land referred to, and properly refused the prayer of the applicant that she be permitted to pay off the encumbrances on these lots of land and be subrogated to the rights of the holder under these encumbrances, as well as her prayer that she be permitted to pay off the encumbrances upon the lots of land Nos. 184 and 139, these being the two lots embraced in the deed to the trustees named in the agreed statement of facts. There is no ruling in any of the cases cited in the dissenting opinion that is contrary to this, though there are intimations based upon a supposed state of facts. While we have not taken up separately the exceptions to the judgment made by the plaintiff in error and dealt with them individually, the rulings made above cover them in principle. Judgment affirmed. All the Justices concur, except Fish, G. J., and Atkinson, J., dissenting. Fisi-i, C. J. Where the grantor in a security deed, holding a bond for reconveyance on payment of the secured debt, died in possession of the land conveyed in such deed, having paid a portion of the debt so secured, and leaving a solvent estate, his widow, upon making a valid tender to the legal representative of the estate of a sum of money sufficient to pay the balance of the [493] secured debt, principal and interest, was entitled to dower in the land so conveyed. And this would entitle her to a reversal in part of the judgment of which complaint is made. See Kinnebrew v. McWhorter, 61 Ga. 33; Harman v. Strange, 62 Ga. 168; Harris v. Powers, 129 Ga. 74 (quoted supra); Spence v. Mathis, 137 Ga. 514 (73 S. E. 739). The case as above set forth falls within the provisions of the Civil Code (1910), § 5248, which declares: “Dower may be assigned in lands held under deed, bond for titles, or other instrument in writing having like effect, where a portion of the purchase-money has been paid, but the estate in dower shall be liable for the unpaid purchase-money where the vendee held under bond for titles or other instrument having the same effect, or under deed where contemporaneously with the execution of the deed the vendee encumbered the land with a mortgage for the purchase-money.” The grantor in the ease stated being in possession, holding a bond from the grantee in the security deed to reconvey to him upon the payment of the secured debt, the bond to reconvey is “an instrument in •writing having like effect” as a bond for title held by a purchaser o'f land; and where the grantor in the security deed has paid a portion of the secured debt, the case stands like that where the purchaser of land holding a bond for title had paid a portion of the purchase-money, for the reason that the payment by the'grantor in the security deed of a portion of the secured debt, to the end that when the balance thereof should bo paid he' would be entitled to a reconveyance of the land, is in the nature and character of a payment of a portion of the purchase-money in order to regain his land, and brings the case within the scope of the Code section quoted. ÁtTcinson, J., concurs in the dissent.