McKenzie v. Donald

Chalmers, J., delivered the opinion of the court. Mr. Bowles died the owner in fee of a half section of land, upon which he carried on a farm. He had sold another half section to one Allen, who had paid him only in part, and for the balance owed him a large note. His widow (now Mrs. Donald) qualified as his executrix, and as such compromised with Mr. Allen, giving up the note of the latter and receiving a deed to herself as executrix for the half section of land. Mr. Bowles had left a minor child surviving him, who be [455] came the owner of two-thirds of the half section possessed by Bowles at the time of his death, and the owner of one-half of the personalty, to wit, of the note executed by Allen. It follows that Mrs. Bowles (who renounced her husband’s will) was the owner of her dower interest in the half section of land of which her husband died possessed, and was the owner in fee of one-half of the note due by Allen, and that she held the land, receiving from the latter exactly as she had held the note; that is to say, she was the owner in fee of half the latter land. The widow, having received the land from Allen, executed to S. C. Eagan & Co. a trust deed for supplies on the whole land, as well that formerly owned by the husband as that procured from Allen by herself. It is confessed that she now owes a considerable amount on this trust deed, but the Chancellor held that no portion of the land could be sold, basing this decision on Wallace v. Smith’s Heirs, 2 S. & M. 220, and Ligon v. Spencer, 58 Miss. 37, by which it was held that where no dower in fact had been allotted to the widow, nothing could be sold under execution against her, and that a deed under such a sale would pass nothing to the purchaser. This was erroneous. It is quite generally held that while unassigned dower is not vendible under a fi. fa-, it may be assigned by contract, and that a court of equity will always enforce such a contract for the benefit of the purchaser. 2 Scribner on Dower, §§ 37 to 40 inclusive, and cases cited. Mrs. Donald, the executrix, could not litigate in this way the rights of her minor son, whose interest in the land could not be affected by a sale of her interest, but the mortgage creditors had the right to subject her interest, whatever it was, and this was all that they sought by their advertisement to do, and this they should have been allowed to do. Having established the amount due by her, they should be permitted as against her to make sale of all her interests. If they acquire this at the sale they may proceed by appropriate proceedings in the chancery court to have her dower assigned her, and then appropriate it to their demands. It is true that dower is now abolished by law, but this affords no barrier to the establishment and application of that dower to her [456] debts by appropriate proceedings in the chancery court. Code 1880, §4. Such proceedings will in no manner affect her minor son. Reversed and remanded to be proceeded with in accordance with this opinion.