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:” again, “it retains its lien until the plaintiff has done or consented to some act which amounts in law to payment,” [13] And also in the case of Ford vs. Gwinn, 3 Har. & John., 496, a sci. fa. was issued to revive a judgment, to which the terro-tenant pleaded,-that the defendant had been arrested on a ca. sa. and had escaped, and that judgment had been rendered against, the sheriff, to which the plaintiff demurred, and the demurrer was sustained. And more recently the same principle lias been recognised in Lawson vs. Snyder, 1 Md. Rep., 71. The record in the case now before us shows, that to the last ca. sa. issued upon the judgment the entry made on the docket was “not called by consent.” This entry avoids the presumption of satisfaction which might otherwise result from the mere arrest of the party upon ca. sa. See also the Act of 1789, ch. 42. We are therefore of the opinion, that the proceedings upon the ca. sa. neither suspended the lien of the judgment so as to allow the dower to attach, nor does it afford a legal presumption of the satisfaction of the judgment. We do not understand the appellee’s counsel to urge that the title of the appellants was not good as against Pratt, the defendant in the judgment, and against his heirs, notwithstanding the supposed irregularity of the proceedings. Having allowed the proper time to pass at which these objections should have been made, they cannot afterwards be permitted collaterally to raise the same questions. But as the wife was not privy to the proceeding, and having at the time only an inchoate, contingent right in the property, it is supposed she could have made no objection to the irregularity of the proceedings, and that therefore she should not be precluded from making them now:. Whether this be true or not in every case, it is not necessary for us now to decide. The objection sought now to be set up to the sale is, that the property, consisting of two tracts of land, not contiguous, were sold in mass, instead of separately, and the objection is made upon the authority of the case of Nesbitt vs. Dallam, 7 Gill & John, 494. Whether this be a good objection or not, it is one that cannot be taken advantage of by the wife of the judgment defendant in a proceeding like the present. Objections to the irregularity of a sheriff’s sale rest upon the [14] ground, that the parties interested were, or may have been, prejudiced by such irregularity. An objection to a sale upon such ground does not propose to defeat the lien of the judgment, but merely to vacate the sale under it. If this had been done at the proper time, and a resale ordered, how can we assume, as we would be required to do in order to sustain a proceeding like the present, that from a fair and regular sale of one of the tracts there would have been realized sufficient to have paid the debt, or, even if we could so assume, we should be required further to assume that the tract which could thus have been sold for enough to satisfy the execution, Would have been that tract called “Pickering,” instead of the other called “Ruthburgh,” out of which latter tract the plaintiff now seeks to recover her dower? These difficulties, it will readily be seen, clearly show, that if the wife could have any standing in a court of justice to call in question the regularity of this sale, she can have no such standing in a proceeding like the present. Judgment reversed, but no procedendo.