Kintner v. McRae

Smith, J. In 1836, Jacob Kintner, being the owner in fee-simple of a tract of land, in Harrison county, sold the same to one Bines at the price of 429 dollars. Bines paid 46 dollars of the purchase-money and gave his notes for the balance, payable within three years. Kintner gave Bines a bond conditioned that a deed should be made when all the purchase-money was paid. Bines took possession of the land, made improvements, and continued in possession until 1843, when he died, leaving heirs. The remainder of the purchase-money being unpaid, Kintner filed a bill in chancery against the heirs of Bines, to enforce its payment by a sale of the land, and in pursuance thereof a decree was rendered under which the land was sold to McRae, in September, 1845, for 428 dollars. In 1842, Kintner married Rebecca, the present plaintiff, and he died in 1847, leaving her his widow. She now petitions for an assignment of dower in the tract of land then sold to McRae. The Probate Court decided that she is not entitled to dower in this land and dismissed the petition. ' We think the decision of the Probate Court is right. If the land had been sold by Kintner before his marriage, and the purchase-money paid by Bines after the marriage, it would have been clear of dower; and the case made by the facts on the record is, substantially, the same. It is true the failure of Bines to pay his notes when they became due may have put Kintner in a position [454] to either rescind or enforce the contract at his election, but he could not do both, and he did enforce payment by a suit. The case stands, then, as if Bines purchasing the land before Eintner’s marriage, had, either voluntarily or upon compulsion, paid a balance of the purchase-money after the marriage, if he had done so he could of course have required and compelled Eintner or his representatives to make him a title, which would have been clear of any claim from dower arising from such marriage. We do not see any reason why McRae, as the purchaser of Bines’s interest, sold at the instance of Eintner for the express purpose of enforcing payment of the purchase-money, should not be entitled to stand in the same position; and it will scarcely be contended that the vendor of land who agrees to give a credit for part of the purchase-money and to make a title when the whole shall be paid, can, by a marriage, before the whole purchase money becomes due, impair or alter his contract with the vendee by incumbering the land with the right of dower. W. A. Porter, for the appellant. C. Dewey, for the appellee. Per Curiam. The judgment is affirmed with costs.