Temperance House v. Fowle

Strahan, C. J. No question as to the sufficiency of the pleadings was made by either party in the court below or in this court, and therefore they will not be further noticed. It is conceded by the stipulation on file that R. M. Montgomery died seized of the land in controversy; that at the time of his death the plaintiff was his wife, and that he died intestate. The plaintiff is, therefore, entitled to dower in said lands unless some of the matters alleged in the answer defeat it. A suit between these same parties was before this court involving the same real property, and is reported in 20 Or. 163. In that case the plaintiff sought to recover her dower, and the defense was a deed made by her to her then husband, R. M. Montgomery, in his lifetime, and we held that the statutes of this state enabling husband and wife to contract with each other did not extend to or include estates or interests growing out of the marriage relation; so that the effect of that deed, which is here pleaded and offered in evidence, may be dismissed without further remark. The next defense relied upon is that the defendant purchased said real estate at a sale made by the administrator of R. M. Montgomery, deceased, by order of the county court of Benton county, for the payment of the debts of said deceased. No doubt it is competent for the legislature to provide that at such sales the widow’s dower shall also [308] pass to the purchaser, and that she may receive in money such proportion of the proceeds of the sale as would adequately represent her interest in the land; but it has not done so in this state, and therefore authorities under statutes differing from our own on that subject could have no application. The construction of our statute authorizing sales by administrators to pay debts of the deceased, has been, ever since its enactment, that such sales did not affect the widow’s dower. Nor does an execution sale of the husband’s lands, whether made while he is living or after his death, transfer to the purchaser the wife’s dower, whether inchoate or otherwise. The defendant’s next contention is, that under the particular facts of this case the plaintiff is estopped from claiming her dower. The facts relied upon to create the estoppel are fully set out in the defendant’s answer, but we think they are entirely insufficient. It may be conceded, and no doubt is true, that the defendant acted in the most perfect good faith. There is nothing shown indicating bad faith on either side. The defendant was chargeable with notice of what the statutes contain and of the nature of the title he would acquire at such sale. In addition to this, the rule of caveat emptor applies to all judicial sales in this state. It was the defendant’s privilege and his duty to investigate the title before the sale, and for that purpose to employ such assistance as he might deem necessary; but he did not resort to the usual methods to ascertain the state of the title. An unlearned woman unacquainted with the forms of conveyancing or the methods of business, could not be regarded as a safe guide or source of information from whom the true state of the title could be learned. It will be noticed that the defendant did not ask the plaintiff at either of the conversations he had with her whether she had or claimed any interest in the land as dower or otherwise. What she told him was that the title was good. That statement was literally true, [309] and it is n it equivalent to the statement that she had no dower in the land, and that if he would purchase at the sale he would acquire a fee simple title free from all incumbrances. It does not any where appear that the defendant relied upon the statements or representations of the plaintiff, and was thereby induced to make the-purchase. What the defendant did rely upon was that he ascertained that the plaintiff was represented by counsel learned in the law, and that said sale was conducted under the direction of the county court. These facts induced the defendant to believe that everything was and would be conducted in the utmost good faith and fairness. The principles of the law of estoppel, sought to be applied to this case, are too elementary to require anything more than a reference. (2 Herman, Estoppel, § 960.) But the defendant contends that, inasmuch as there was a mortgage on the land at the time of the sale by the administrator for about one thousand eight hundred dollars and interest, and that a part of the purchase money paid by the defendant to the administrator was used by him to pay off the mortgage, the defendant ought to be subrogated to the rights of the mortgagee. If that were so, it is not perceived how it could be available as a defense in this case. The code expressly authorizes lien holders to be made defendants in partition suits except those who have liens by judgment or decree. (Code, § 425.) But on what ground can the defendant claim to be subrogated? He was not a party interested in the property affected by the mortgage, and did not in fact pay off the mortgage. What he did was to pay to the administrator conducting the sale the amount of his bid, and the administrator applied the money, or so much as was necessary, in payment of the mortgage. Subrogation, as a matter of right, independently of agreement, takes place only for the benefit of insurers, or of one who, being himself a creditor, has satisfied the lien of a prior creditor; or for the benefit of a [310] purchaser who has extinguished an incumbrance upon the estate which he has purchased; or of a codbligor or surety who has paid the debt which ought, in whole or in part, to have been met by another; or of an heir who has paid the debts of the succession; or of one who has paid his own debt, the burden of which has for a valuable consideration been assumed by another. (Sheldon, Subr. § 3.) The facts of this case do not bring it within this authority, or any adjudged case we have been able to find. When a purchaser extinguishes an incumbrance upon an estate which he has purchased, he may be subrogated; but the defendant did not purchase the plaintiff’s dower. It was not sold nor could it be sold in that proceeding. It was the estate of the intestate which was sold to pay his debts? and the money which was received at the sale was applied' for that purpose and no other. When the debt which the intestate owed was paid by the administrator, as a necessary consequence it released the plaintiff’s dower from the mortgage. The payment of that debt and the release of the plaintiff’s interest was a duty which the intestate owed to her in his lifetime, and the same duty devolved on his administrator by his death. Besides, it cannot be denied that the plaintiff’s equity to have the proceeds of that sale applied in exoneration of her property covered by the mortgage is as strong as the defendant’s claim to keep the lien alive for his benefit. If the wife had been indebted, or if her interest in the land had been sold with the deceased husband’s interest, there would have been more foundation for the appellant’s contention. But in addition to this, if the sale at which the defendant purchased had been upon a decree of foreclosure, which would have carried the plaintiff’s interest in the land as she was a party to the mortgage, still she would have had her dower in the purchase money, to be ascertained and paid to her after paying off the mortgage. (Butler v. Smith, 20 Or. 126.) It may be conceded that subrogation is founded on the prin [311] ciples of equity and benevolence (Webster and Goldsmith’s Appeal, 86 Pa. St. 409), but to render its application practical, the claim must have substantial equity growing out of the nature of the transaction itself, and it must not work a wrong or injury to another. (Erb’s Appeal, 2 P. & W. 296.) For these reasons I think the decree appealed from ought to be affirmed. But my associates are of the opinion that under the peculiar facts of this case, which are unnecessary to detail as disclosed by this record, the defendant has brought himself within the doctrine of equitable subrogation, and should be subrogated to the rights of the mortgagee, whose mortgage was an incumbrance on plaintiff's dower, and which was paid with the money of defendant. It follows, therefore, that the decree of the court below must be modified, and a decree entered in accordance with the opinion of the majority of this court.