Tibbetts ex rel. Melton v. Langley Manufacturing Co.

The opinion of the court was delivered by Haskell, A. J. This is a proceeding for the allotment of dower, commenced in the Court of Probate, carried up by appeal to the Circuit Court and thence brought by appeal to this court. — 479 — The facts are very fully set forth in the decree rendered by the Circuit judge. Several important questions are presented in the appeal from that decision. This court, however, is impressed by the preliminary question, upon the determination of which the consideration of several of the other questions depends. We will thus state it: The prima fade right of the demandant is established. That is to say, the marriage, the legal seizin of the husband during coverture, his death, and that the wife had not relinquished her right of dower in the land, are facts not disputed. But the defendants by way of defence allege as matters of fact that the husband, within a short time, a few weeks, after the execution and delivery to him of a deed of conveyance of the land, executed a mortgage thereon to secure payment of a part of the purchase money; that this mortgage was executed in pursuance of an agreement entered into before the purchase of the land by the mortgagor and of force at that time; that the mortgage was foreclosed in the lifetime of the mortgagor, the husband, and that they derive through the purchaser at the foreclosure sale. They claim as conclusions of law that such a mortgage for the purchase money is by virtue of the agreement part of the res gestee, and is#a right superior to that of dower; and that foreclosure having been had in the lifetime of the husband-the land was sold freed and discharged from all right of dower. The facts as above stated are sustained by the findings of the court below. The chief aim, therefore, of the decree by the Circuit judge is to reach the conclusions of law flowing from such facts. The fact, however, which must underlie the entire defence' is the existence of the “ agreement ” at the time of the sale and as part of the transaction. We are of opinion that there is no proof in the record of the existence of such an agreement as against the widow. The defendants offered in evidence nothing but the recitals made in the mortgage executed nearly a month after the legal estate had vested in the husband. The wife was not a party to the mortgage deed. The question is, whether; such recitals made subsequent to the time when the wife’s j inchoate right of dower has attached to the land are admissible' in evidence against her demanding her dower. The mortgage — 480 — was executed to third persons who were not directly parties to the transaction, and there is not a tittle of other evidence to prove the agreement or to connect it with the transaction. It cannot, then, as in the case of Dutart v. Chovin, Riley 170, be “ receivable under the idea of res gesta?,” but must rest solely upon the credit given to statements made by the mortgagor, in which view, as conceded in Dutart v. Chovin, “ it must according to the rule be clearly inadmissible.” But the conclusion reached by the Circuit judge rests upon the ground' that the wife is “ in privity of estate ” with her husband, and “ is estopped as his privy from denying the efficacy of his solemn admission under' seal respecting the agreement with his sureties, and is fully committed to the consequences which in the regard of equity resulted from that admission.” It would be difficult to state the general rules on this subject in language more concise or accurate than that found in Green-leaf on Evidence, as follows: “In regard to recitals in deeds, the general rule is that • all parties to a deed are bound by the recitals therein which operate as an estoppel working on the interest in the land, if it be a deed of conveyance, and binding both parties and privies; privies in blood, privies in estate and privies in law.” Vol. I, § 23. “ The term privity denotes mutual or successive relationship to the same rights of property. -* * * The ground upon which admissions bind those in privity with the party making them is, that they are identified in interest, and of course the rule extends no further than this identity.” Id., § 189. Can the widow claiming dower be said in this sense to be in privity of estate with her husband ? If she cannot, the evidence is mere hearsay and inadmissible. The inchoate right of dower is said by Mr. Scribner (Vol. II, p. 8,) to be “ a substantial right, possessing in contemplation of law the attributes of property, and to be estimated and valued as such.” And in Cunningham v. Shannon, 4 Rich. Eq. 135, it is defined to be “a right attaching by implication of law, which although it may never be called into effect, * * * yet from the moment that the fact of marriage and of seizin have concurred, .is so fixed on the land as to become a title paramount to — 481 — that of any other person claiming under the husband by a subsequent act. Park on Dow. 256. The estate to which the right of dower attaches comes through the husband, but the right by which it attaches comes through the law. • Thus the wife is in privity of estate with her husband quoad his derivation of estate; that is to say, until the right of dower attaches; but when the right has attached, her interest is independent of him, and is against him. The privity ceases on the^ concurrence of marriage and seizin. That her right is adverse to her husband would perhaps be an awkward expression, for it cannot be set up against him, because it does not consummate until his death; but that it is against his interest and affects his estate is manifest, for it is good against his heir or his alienee, and the assertion of the right constitutes a breach of a covenant of warranty for quiet enjoyment. Lewis v. Lewis, 5 Rich. 12. The wife’s right attaches to the estate which was in the husband at the concurrence of marriage and seizin, and in questions to determine that estate she is in privity with him as to all transactions antecedent, but not so as to any subsequent, for the I husband and wife are no longer identified in interest. In Gaunt v. Wainman, 3 Bing. N. C. 69, an action for dower, it was argued that the tenant was estopped by the deed under which he claimed title to dispute the nature of the title conferred by that deed. Tindall, C. J., says: “As between the parties to that deed there may be an estoppel, but. you set it up against [the wife] a stranger to the deed.” In Foster v. Dwinel, 49 Me. 44, in commenting on the above, it is said by Kent, J.: “The ground of this decision seems to be that the wife or widow is not a party or privy to the conveyance. Her claim is by a title paramount and distinct, and therefore she is not estopped.” And again: “We have seen that a widow cannot be defeated of her dower by any declarations or recitals of her husband.” The case of Gayle v. Price, 5 Rich. L. 525, is not in conflict with this principle. The title under which the defendant held, and he did not attempt to set up any other, was the title on which the widow relied, and the estoppel was reciprocal. But in this case the title under which the defendants claim is the equity arising from an agreement which depends for proof upon a declaration or recital — 482 — subsequent to the deed of conveyance under which the widow ' sets up her demand. The defendants are not estopped from fproving such agreement, but there is no estoppel against the widow, as would be if, for instance, such recitals were in a deed indented, to which her husband was a party, and by which he. derived title. No cases directly in point were cited, and we have found none in our own reports, and but little in the text-books, bearing directly on the point in question, but so far as decisions of other courts have been found, they entirely sustain the view already expressed. It is true that the case of Pledger v. Ellerbe, 6 Rich. 266, was to some extent relied on, not by the Circuit judge on this point, but by the counsel for the defendants. We do not, however, consider it as at all sustaining the position attributed to it, and will consider it presently in another connection. In the leading case of Greene v. Greene, 1 Ohio 244, though the rule of evidence is not in question, the law as to the effect of such agreements is thus expressed: “ If it be considered as real estate) it was acquired subject to a condition or agreement that qualified the estate of the husband, and the wife when there is an agreement, unless it were executed after her right attached, would be bound thereby, so as to exclude her right of dower.” We would remark incidentally that that is really all that is decided in Pledger v. Ellerbe, supra. See, also, on that subject Stoppelbein v. Shulte, 1 Hill 200; State v. Laval, 4 McC. 336, and Wilson v. McConnell, 9 Rich. Eq. 500, showing the effect of the act of 1791, and the change which has occurred since the decision in Bogie v. Rutledge, 1 Bay 312, and Verree v. Verree, 2 Brev. 211, doing away with that idea of instantaneous seizin in the mortgagee which left to the widow only an equitable right, and substituting in its stead the principle that a mortgage for the purchase money, or an agreement to that effect, simultaneous or connected with the purchase, is part of the res gestee and to that extent qualifies the legal seizin of the husband and subordinates the wife’s right to the lien thus fixed upon the land. But to return: The recitals in the mortgage unquestionably are, as against the husband and those claiming under him, evidence of an agreement, but being subsequent to the time when the — 483 — wife’s right attached, she is not thereby bound, for as against her f they do not constitute evidence that the agreement was prior to! -or constituted a part of the transaction of purchase. "When the right of dower has consummated it is a right fixed upon the land, but that right relates back to the time when it originally attached; or, as already said, the inchoate right itself “is so fixed on the land as to become a title paramount to that of any other person claiming under the husband by a subsequent act.” Such right is protected by the same rules of evidence as otherl rights of property. Thus when dower has attached and the| right has become independent of the husband “nothing that hej could” (thereafter) “say would be evidence against his wife;j her claim is not through him, but in her own right, and altogether independent of him.” Smith v. Scudder, 11 Sergt. & Rawls 325. That was not a case for dower, but states the rule which we think is applicable. In Doe v. Webber, 1 Ad. & El. 733, 28 Eng. C. L. 191, where a party had by a voluntary settlement after marriage conveyed away his interest in an estate and afterwards executed a mortgage of the same estate; it was held, that declarations, implied or expressed, of the mortgagor made after he had parted with his interest by the settlement were not admissible evidence on behalf of the mortgagee (after the death of the mortgagor) to show that money had actually been advanced upon the mortgage. The views of the judges were various, but the reason is thus pointedly expressed by Taunton, J.: “I am of opinion that he (the husband) having parted with his interest by the settlement was not competent to cut down that settlement by his declarations afterwards made. It is not for us to decide what would have been the effect of the evidence if admitted.” It is difficult to perceive any difference in principle between that case and one in which by reason of the marriage and seizin the interest has passed out of the husband by operation of law. He is a party to it by virtue of the marriage, and as much affected as if the interest had gone out of him by a settlement. It would be even more startling if, by the admission of his subsequent declarations as evidence, he could “ cut down ” so highly favored legal right. In Pinner v. Pinner, Barbee’s L. — 484 — 475, the question fairly arises. The proceeding was by the widow of Wm. Pinner for dower. The other side produced a deed from the husband dated thirteen years before his intermarriage with the petitioner, and by a subscribing witness proved a delivery of the deed a short time before the husband’s death, and his declaration that the deed had been delivered many years before. Held that this declaration was no evidence of any previous delivery as against the petitioner. The court, per Nash, Chief Justice, says: “The only testimony upon which the defendant, Nancy, relied to show that the deed was delivered at the time it bore date was the declaration of William Pinner, which was incompetent on that point. The declarations of Pinner before Lanning as to the acknowledgment of the deed were competent as showing a present delivery, for it was part of the res gestee then taking place, but it was no evidence of what had taken place at any time before. The plaintiff did not claim under him but wider the law, and he was endeavoring to deprive her of her rights. So far, then, the declarations of Pinner were incompetent to give the deed an operation before his then acknowledgment.” In Darush v. Brown, 8 Ohio 412, a proceeding for dower, it was held that admissions in a deed of release executed by the (husband after he had become seized of the land, could not be taken in evidence as against the widow. The court says: “ A deed of release from Stearns to the Browns, in which he admits that he purchased the lands in trust for the Browns with their property and as their agent, has also been introduced. To the incompetency of this testimony the counsel for complainants objects and insists that such admissions, made either by parol or by deed, cannot operate to defeat a widow of her dower, and of this opinion are the court. It is true that the right of the widow to dower is derived from the husband, and in a certain sense she may be said to claim' under him. But in some respects her interests are adverse to his. By the marriage and seizin of the husband she acquires an interest in the land of which he cannot divest her. He cannot do it by deed of conveyance, and it would be strange if he could by parol declarations. Declarations made by the husband while contracting for the land or at the — 485 — time of purchase may with propriety be proven; but declarations made subsequently must be excluded.” The meaning is that if the trust had been proven the right of f dower would never have attached, and that it might have been ’ proven by declarations of the husband, which constituted a part - of the original res gestee, or by other evidence, but not by subsequent declarations of the husband, which, if admissible in evidence, would thus enable him at any time to deprive his wife ' of dower. That the mortgage deed was admissible in evidence is unquestionable, and it proved that the recital had been made, but not the fact which the recital alleges. Regarding it, therefore, as settled that the wife, as respects her) dower, is not in privity with her husband in any transactions! subsequent to the concurrence of marriage and seizin, to which she is not a party, the general rule of evidence must govern, andj on that the current of authorities is unbroken. Sims v. Saunders, Harper 374; Newman v. Milbourne, 1 Hill Ch. 10; Smith v. Asbell, 2 Strob. 141; Ruff v. Thomas, 2 Spears 601; Land v. Lee, 2 Rich. 168; Kittles v. Kittles, 4 Rich. 422; Renwick v. Renwick, 9 Rich. 50; Raiford v. French, 11 Rich. 370; Adams v. Lathan, 14 Rich. Eq. 304. The declarations must be made prior to the res gestee or be part thereof; and as to what constitutes part of the res gestee it is said in Haynes v. Rutter, 24 Pick. 242, and approved in Adams v. Lathan, supra: “ If a declaration is in itself a fact in the transaction, or is made by a party while doing an act, and serves to explain it, it is to be received in evidence as a part of the res gestee. But a recital of past transactions is not admissible, although it may have some relation to the act which the person may be doing at the time when he makes the declaration.” Greenl. vol. I., § 110. Stress is laid upon the effect of the foreclosure. “ Judgments and decrees of courts of competent jurisdiction directly on the point in controversy are admissible in evidence not only between the parties, but all persons standing in the relation of privies in blood, in estate or in law. And I understand by privy one whose interest has been legally represented at the trial.” McMillan v. Brown, 2 Hill Ch. 457. — 486 — The wife was in no sense a party to the proceeding for foreclosure ; nor, according to the views already expressed, can it be-said that her interest was “legally represented at the trial.” The “ relationship as to the same rights of property ” — between the husband and the widow demanding dower, and the identity of their interest — cease at the moment that the right of dower attaches, for the interest of the wife is thenceforth freed, is independent of that of the husband and is adverse to it. That the-foreclosure was had in the Court of Common Pleas in the exercise of its power under the act of 1791, thus becomes an immaterial question; the conclusion would be the same had the proceedings been in the Court of Equity in the exercise of its comprehensive jurisdiction. The case of Pledger v. Ellerbe—already referred to — does not aid the defendants, for the circumstances are essentially different. The act of the husband which there worked the estoppel was-admitted to have been a part of the res gestee. The instrument called a mortgage was given by the husband to the vendor at the time of the sale to secure the purchase money, and whether or-not duly attested, was at least an agreement, and was part of the-transaction by which the seizin was acquired. That fact was-admitted. Whatever the husband did, in the transaction of purchase, affecting the seizin, was binding on the wife, for her right of dower attached to the seizin thus qualified or encumbered. His agreement could have been specifically enforced in equity,, and the wife would have been bound, for the decree would have determined a fact in the res gestee by which the seizin came to the husband, and to that extent she is in privity with him-.. None the less is she bound when by the husband’s assent to foreclosure he admits what would have compelled specific performance, and thus merely dispenses with unnecessary circuity of action. Such acquiescence on the part of the husband is not an act or declaration, subsequent to the seizin, affecting the right to-dower, but is an act on his part solely affecting a proceeding at law or in equity, arising from an act in the res gestee, on which her right depends, and which right could have been in nowise changed or altered by the difference in the mode of procedure.. We, therefore, entirely concur in the conclusion reached in — 487 — Pledger v. Ellerbe, and deem it in no sense in conflict with the views entertained in this case. For the reasons above stated it follows that the widow's right of dower, was not affected by the mortgage, and that she is therefore entitled to dower in all the land in question. As to the other points raised by this appeal we are satisfied with the conclusions reached by the Circuit judge for the reasons which he has given, and we deem it unnecessary to add anything to what he has said. Since the case has been pending in this court the demandant has died, and, by an order of this court, J. D. Tibbetts, as her administrator, has been made a party, without prejudice to any right of the defendants arising from the death of the demandant. It is now contended that as dower is but a life-estate, and there has been no decree for an account of the rents and profits, and no appeal from the decree on account of such omission, the proceeding is necessarily at an. end. We think it is clear, from• the decision rendered in Keith v. Trapier, Bail. Eq. 63, and the authorities therein cited, that where the widow has made her demand of dower, but dies before her right has been established, equity will decree an account for rents and profits in favor of her personal representative. But in this case the Circuit judge affirmed the decree of the Court of Probate, which not only established the widow’s claim of dower, but gave leave to apply for the necessary orders to carry the decree into effect. Under that decree we see no reason why the widow, or her administrator after her death, might not apply for an account of the rents and profits, which, in this case, will be represented by the interest on the value of the dower assessed in accordance with law. Gen. Stat. 530, § 7. The important question so thoroughly discussed by the Circuit judge does not, under the view which we have taken, arise in this case, and therefore has not been considered. The judgment must be modified in accordance with the views herein expressed, and the case is remanded for such further proceedings as may be necessary. Decree modified. Willard, C. J., and McIver, A. J.; concurred.