Grube v. Lilienthal

The opinion of the Court was delivered by Mr. Justice Gary. The facts of this case are fully set [450] out in the decree of his Honor, the Circuit Judge, which will be reported. 1 The first two exceptions of Mrs. Ann Emily Eilienthal will be considered together, and are as fullows: “1. Because his Honor erred in holding that the defendant, Ann Emily Eilienthal, the wife of the said J. Fred. Eilienthal, had no right to have her inchoate right of dower in the premises covered by the mortgages herein ascertained and protected in the net surplus proceeds of sale of said premises. 2. Because his Honor should have held that the defendant, Ann Emily Eilienthal, was entitled to have her inchoate right of dower in the surplus proceeds of sale of said mortgaged premises, ascertained and protected under the order of the Court.” The question raised by these exceptions has not heretofore been decided in this State. In Park on Dower, star page 192, the following language is used: “It was for a long time doubted by great lawyers, whether before the death of the husband, there were any means by which the wife’s inchoate title of dower might be voluntarily extinguished. It was thought that as she had no right of action until the death of the husband, she had nothing to part with till then, and could not be barred even by fine. But it is now clearly established that the title of dower, although inchoate till the death of the husband, yet being an interest attached on the lands, from the instant of the concurrence of marriage and seisin, is extinguished by those modes by which a married woman may relinquish any other legal interest; and even so long since as the time of Eord Coke, we are told that ‘no question was made, but that if the husband and wife levy a fine, the wife is barred of her dower, for the intermarriage and seisin are the fundamental causes of dower, and the death of the husband but an execution thereof’ ” (italics ours). In our State, this inchoate right of dower may be relinquished by a contract with the wife during coverture — Smith v. Oglesby, 33 S. C., 194 — by a renunciation under the statute, or by a sale of the land [451] during coverture, under a paramount claim. If the land is sold during coverture- to satisfy a lien existing. at the time of the marriage, or a lien for the purchase money, when the land was purchased by the husband during coverture, or a lien upon which the wife has renounced her dower, the purchaser gets a title to the land free from all claims of dower, even although the paramount lien might have been very small in amount, as compared with the value of the land. Why does the purchaser take the title stripped of the wife’s right of dower? It is because the “concurrence of marriage and seisin” is broken during the coverture by the sale under a paramount claim, as to which the wife is in privity of estate with her husband. If the land is sold during coverture to satisfy a mortgage (other than for the purchase money) executed by the husband during coverture, upon which the wife had not renounced her dower, the seisin would not be broken as to her, because she would not be in privity of estate with her husband. But, as was said by this Court, in Miller v. Bank, 49 S. C., 437: “If the title of the husband is complete, and during coverture he executes a mortgage on the land upon which the wife renounces her dower, and the mortgage is foreclosed during coverture, she by her own act did that which as effectually deprives her of the right to claim dower as if the mortgage had been executed for the purchase money of the land, or had been a subsisting lien at the time of marriage. In all these cases, the rights of the purchaser are paramount to the wife’s claim of dower. When the wife renounces dower in the land, she by her own act places herself in privity of estate with her husband.” The wife, by her renunciation of dower upon the mortgage, contributed to the destruction of the seisin, and thereby destroyed her right of dower. As the wife, by her act of renunciation, assisted in bringing about a change of seisin, by which her right of dower was destroyed, and by which the surplus proceeds of sale became the property of the husband, the Court had no more authority for impressing a trust upon the surplus proceeds [452] of sale than it had to impress a trust upon any other personal property of the husband. The right of dower was completely extinguished and destroyed when the seisin, during coverture, was broken by the aid of the wife, and the Court had no power to transfer the right to the surplus proceeds of sale. The master who was reversed by the Circuit Judge upon this question relied upon the cases of Keith v. Trapier, Bail. Eq., 63; Tibbetts v. Langley, 12 S. C., 476; Wilson v. McConnell, 9 Rich Eq., 512; Henagan v. Harllee, 10 Rich. Eq., 285, and Keckley v. Keckley, 2 Hill Ch., 250. But in none of these cases was there a destruction of the seisin during coverture by the aid of the wife. Apart, however, from the foregoing reasons for overruling the exceptions, there are decisions in this State that could not have been rendered, if Mrs. Lilienthal’s claim is valid. Section 143 of the Code provides that “The Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them' to be brought in” (italics ours). In the case of Miller v. Bank, supra, the Court says: “In cases where the rights of the wife are in privity with those of her husband in the land, and the land is sold under a judgment of foreclosure during coverture, the wife is not a necessary party to foreclosure proceedings, and after the death of the husband, has no right to claim dower in the land.” From this it necessarily follows that the wife during coverture has not such an interest as the.Court is empowered to protect. The third exception of this appellant is as follows: 3. “Because his Honor erred in holding that it would be impracticable to ascertain and protect the inchoate right of dower of this defendant.” After what has been said in considering the other exceptions, the question presented by this exception becomes purely speculative. We may say, however, that if the doctrine for which the appellant contends [453] was sustained, it would complicate and embarass the transfer of property throughout the country, and lead to endless litigation. 2 The exceptions of Thomas Pinckney, jr., assignee, &c., are as follows: 1. “Because his Honor erred in holding that Thomas Pinckney, jr., the assignee of J. Fred. Lilienthal, took the property of his assignor subject to the equity of the second mortgage of J. Fred. Lilienthal to the German-American Trust and Savings Bank, which said mortgage bears date May 2d, 1895, but was not recorded until June 19th, 1896, the day after the deed of assignment from J. Fred. Lilienthal to Thomas Pinckney, jr. 2. Because his Honor should have held that said mortgage to the German-American Trust and Savings Bank not having been recorded prior to the date of the deed of assignment from J. Fred. Lilienthal to Thomas Pinckney, jr., his assignee, and the said assignee having no notice thereof, that Thomas Pinckney, jr., as assignee, took the said property free from the lien of the said mortgage. 3. Because his Honor erred in holding that the mortgage held by the German-American Trust and Savings Bank must be satisfied before the assignee could receive any portion of the proceeds of the sale of the mortgaged premises.” The authorities cited by the master show that these exceptions could not be sustained. It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.