Gould v. Luckett

Simrall, J.: Two points were made at the argument. Whether the judgments recovered against the husband during coverture defeated the winow of her dower, (it being — 114 — agreed, as a fact, that the lands are insufficient in value to satisfy the judgments.) Second, can the administrator of the deceased husband set up these judgments in his answer in bar of her claims. The title of doweress being a derivative of the husband, and attaching instantly upon a beneficial seizin in him, it would follow that her inchoate right is subject to all the infirmities, servitudes, and burdens incident to his title before marriage, or which were contemporaneous with his seizin, or an incumbrance upon it, at the time of its acquisition after marriage. If there were a lien by contract or by operation of law, as a judgment lien, already upon the land, at the time her right had its inception, her claim would be subject to the claim, and might be altogether defeated by it. For illustration, if an attachment was' put upon the property before marriage, and pending the proceedings, and before judgment, the debtor married, a sale under the judgment would cut off the dower. Brown v. Williams, 31 Me. 406 ; Whitehead v. Cummins, 2 Car. (Ind.) Rep. 63 ; Sanford v. McLain, 3 Paige, 117 ; Robins v. Robins, 8 Black. Ind. Rep. 174. These cases were adjudged, under statutes, substantially like the common law. What is the exact import and effect of a judgment lien ? It was said by Marshall, C. J., in Rankin v. Scott, 11 Wheat. 179, to be as binding as a mortgage, and has the same capacity to hold the land, so long as the statute jneserves its force. It gives a prior right of satisfaction out of the subject it binds, unless displaced by some act of the party holding it. The resemblance to the mortgage consists' in this, that it takes priority from its date, and is superior to junior incumbrances made or suffered. And in this other aspect, that it adheres to the subject until displaced, or abandoned by the creditor, and subsists in spite of, and independent of, the debtor. The lien is not a title, a jus — 115 — in rem, but a “privilege,” which takes hold of the property. When vitalized and made active by a sale, the title conveyed relates back to the date of the judgment, and overrides any subsequent incumbrance or conveyance made by the debtor, or arising by operation of law. The lien itself does not interrupt the husband’s seizen; its utmost effect is as an incumbrance or burden upon it. The. view has been urged by the counsel for the plaintiff in error, that inasmuch as a sale by the sheriff relates back to the judgment, his deed operates to confer title as of the date of the judgment. And therefore, although the sale may not be made until after his death, the sheriff’s deed has the effect to direct the seizin, as of the day of the judgment. And therefore it could not, in such case, be predicated that the husband died seized, so as, under the statute, to entitle the widow to dower. In Pickett v. Buckner & Newman, (MSS. opinion) we brought the dower statute of 1857 into comparison with the common law, so as to determine the extent of the change made by the legislature. We interpreted the statute, as conferring power on the husband, to bar the wife’s dower, by an act done by him, (which the common law did not permit,) to wit, a conveyance for a valuable consideration. The inchoate right which arises upon marriage and seizin, may be barred or destroyed by this subsequent act, but it remains in the wife inchoate and dormant until cut off. The wife’s right may be vacated or rendered unfruitful and worthless by some trust or burden upon the husband’s title, coeval with his seizin, as a vendor’s lien for the purchase money, or a mortgage back to him, to secure its payment, or by some servitude, trust or burden, placed upon the title, before the inception of the wife’s right by marriage, as a mortgage or judgment lien. Such incumbrances may sweep away the — 116 — husband’s title altogether, and carry with them the wife’s right. Such would be the effect at the common law. The statute provides for but one case, where the voluntary act of the husband, during coverture, shall deprive the wife of dower. That is a bona fide conveyance for value. If, therefore, a judgment lien is not a conveyance, or the equivalent of it, the case is not within the statute. In Conrad v. Atlantic Ins. Co., 1 Pet. 433, the supreme court give a most definite and accurate description of such a lien. “ It does not per se constitute a property or right in the land itself. It confers a right to levy on the same, to the exclusion of other adverse interests, subsequent to the judgment; when the levy is actually made, (and a sale,) the title relates back to the time of the judgment, so as to cut out intermediate incumbrances.” The entire doctrine of the title relating back, is to insure to the creditor the priority and preference of his lien — it is “ to cut out intermediate incumbrances.” It operates as against subsequent purchasers or lien creditors. It takes from the debtor the power to assign or burden the subject of the lien to the injury of the creditor. It disables and ties up the hands of the debtor, until the creditor chooses to enforce his right by a levy and sale. Until the sale, the debtor contimies the owner, seized of the premises, and may stand upon his title in a court of law, as though no such burden were upon his land and his title. It would seem therefore, that if the husband died before a sale, he died seized of his lands. And that a purchaser under the judgment would get the full benefit of his lien, if the title was made to refer back to the time of the judgment, so as to overcome any assignment, or judgment, or right acquired from the debtor, subsequent to its rendition. The claim to dower existed before the recovery of the judgment. It did not spring out of contract, or — 117 — agreement, it is institutional in character. It was in possibility, if it became complete and vested by survivorship. In no proper legal sense could it be said that it was dependent to any degree upon things done or omitted to be done by the husband, or that it could be divested by relationship to the date of the judgment. If a sale is made by the sheriff in the husband’s lifetime, dower is defeated because thereby seizin is broken up, and it cannot be said that the husband “ died seized or possessed,” as required by the statute. So in another case would she be cut off, where before her right had its inception, the husband’s title was encumbered; her claim being an emanation from his title, partakes of its burdens, and would be subject to be defeated by the enforcement of the encumbrance. Another instance is where, in the act of acquiring a title and seizin, a trust arises as the vendor’s lien. Her dower right would be inferior to the vendor’s lien. But if at the time of the marriage, or at the time of the acquisition of lands during coverture, the husband’s title was free of incumbrances, the wife’s inchoate claim continues, subject only to be distroyed by a conveyance for a valuable consideration. If that has not been made, the statute leaves her interests unabted to be disposed of as at common law. But whether these views be sound or not, is the administrator competent to set up the judgments recovered against the husband in bar of the dower ? It is not denied that ¥m. B. Luckett, husband of the petitioner, Viola Luckett, died seized and possessed of the lands' discribed in the petition, and in which his widow, the said Viola, sought an allotment of dower. But the plea is interposed in bar of her claim, in the answer of the administrator, that the judgments were recovered against' the husband in his lifetime, and that proceedings of scire facias against his heirs have bep.n instituted, looking to a sale of these lands. — 118 — It is urged in argument for the appellee, that if there be merit in this plea, the administrator can not make that sort of defence. It has been put at rest, by a series of decisions, that the suit for the allotment of dower, is for many purposes ex parte, the probate court being an incompetent tribunal to canvass and adjudicate upon conflicting titles to land. In James et ux. v. Rowan et ux. 6 S. & M., the court say: They have repeatedly held, that the probate court is wholly unfit to decide upon the title to land, where there is a conflict of claims. Pickens v. Wilson, 13 S. & M. 691. The decree can only be obligatory upon the parties to the suit. These, under the statute, are the administrators and heirs or devizees. Art. 173, Code, 1857, p. 469. It is incumbent on the widow in establishing her right, to show a seizin of the husband at his death, or not alienation for value by him during coverture, or non-relinquishment by herself. These facts constitute her right as against the legal representatives, and the heir or devizees. But they conclude nobody else. They in nowise affect a claim or title, outstanding in any other persons.' As against such claim or title she must establish her right in another forum. Burk v. Tappan and wife, 5 S. & M. 128 ; 13 ib. 691. The judgment lien of the two creditors upon the land admitted to equal the fee value, is pleaded in bar by the administrator. Whatever may be the nature of the lien; as an incumbrance paramount to the claim of dower, it is evident that the administrator cannot rely upon it to defeat this suit. It is an outstanding claim in favor of strangers to the record, adversary to the title of the widow and the heirs, and if available, would defeat the heirs of their inheritance. But the creditors are not parties to this suit, and are not pressing their lien to defeat the owner. Any decision made upon their rights would estop them in another suit, and — 119 — would be an attempt to bind them, when not parties, to the record. The widow is entitled to an assignment of dower. Her husband died seized of the lands. It is not shown that he has conveyed them in good faith and for a valuable consideration. In this suit, the widow and the administrator, and heirs or devizee, nothing more is, or can be put in issue, than the marriage, the seizin of the husband, and non-alienation by the husband for value. Whilst the decision of the court is obligatory on the immediate parties, it concludes nobody else. Nor can an adversary title be brought into litigation. The decree is affirmed.