Whiteaker v. Belt

[494] Opinion by Mr. Justice Bean. 1. Upon these facts the question arises whether, by the order of the county court directing the sale of the property for the payment of the debts of the estate, and the subsequent proceedings had in that court, and the acts of the defendant, she is estopped or concluded from claiming dower in the premises as against the purchaser at such sale. It was held in House v. Fowle, 22 Or. 303, 29 Pac. 890, that under the statute of this state a widow’s right of dower is unaffected by an administrator’s sale by order of the county court for the payment of the debts of the deceased. Such sales are judicial in their character, and, like sales under an execution, the widow’s right to dower is unaffected. The administrator is only authorized to sell and convey “the estate, right, and interest of the testator in the premises at the time of his death”: Plill’s Code, § 1153. And the rule is the same whether the sale is made to pay or discharge a lien upon the premises, or to pay simple contract debts of the estate, unless perhaps it be made on an application for an order of redemption as provided in sections 1161,1162 1163, a question which is unnecessary for us to consider at this time. The rule of caveat emptor applies to an ordinary administrator’s sale, and the purchaser is supposed to have examined the record, and know what he is buying, and to purchase with knowledge that the dower is yet an incumbrance on the land, and if he does not do so, it is his own fault, for which he can blame no one but himself. It is clear, therefore, that the defendant is entitled to recover her dower in the premises, unless, by her acts or conduct, she has waived the same, or induced the plaintiff to purchase the premises for the full value thereof, under the belief that he would acquire a title to the same discharged from her right of dower. [495] 2. The authorities are generally agreed that when a dowress, by her representations or conduct, induces one to purchase an estate under a belief that she waives her dower, or that it is free from the claim of dower, she will be estopped from afterwards setting up her claim, (2 Scribner on Dower, § 266; Ellis v. Diddy, 1 Ind. 561; Lawrence v. Brown, 5 N. Y. 394,) but, to constitute such an estoppel, it must appear that by her words or conduct she caused the purchaser to believe that by such purchase he would acquire a title discharged from her estate in dower, and he must have acted upon such belief. Where she has done nothing to deceive or mislead the purchaser, her mere silence does not affect her right. Now, in this case, there is nothing whatever in the evidence showing, or tending to show, that the defendant at any time represented to the plaintiff, or any one else, that a title free from her dower would be given to the purchaser at the administrator’s sale, or that she authorized or empowered the administrator to make such representation, or that defendant acted upon any representation or conduct of the defendant in making the purchase. Indeed, the plaintiff himself testifies that he never had any conversation with the defendant about the purchase of the land, or of her interest therein, and, manifestly, she would not be bound by any representations of the adr ministrator made without her knowledge or consent. The only circumstance relied upon as a ground for equitable relief, so far as we can ascertain from the“ record, is that the stipulation in the Klosterman foreclosure suit was made to enable the administrator to realize the money with which to pay the mortgage by sale of the land under an order of the county court; and from this it is argued that, because the sale of defendant’s dower under the mortgage was prevented by such stipulation, it operated as a consent on her part to a sale of it under an [496] order of the county court to pay off the mortgage. But the evidence shows that this stipulation was not made at her solicitation, or with her knowledge, but by the administrator, on his own motion, for the purpose of saving to the estate the expense of a foreclosure suit, and that she knew nothing about it until after it had been signed. The stipulation was not intended or designed to affect her dower in any way; and, besides, there is nothing in the evidence to show that plaintiff, prior to his purchase, had any knowledge of either the foreclosure suit or of the stipulation. When the plaintiff made the purchase of the land in question he undoubtedly believed that he was acquiring a title free from dower; but it is very clear such belief was not induced by any declaration or conduct of defendant, but was one for which she was in no way responsible. Such being the case, we see no room for the application of the doctrine of estoppel or of equitable subrogation, and it follows that the decree must be affirmed. Appirmed.