Carver v. Ward

Williams, Judge: On the 26th day of April, 1912, on petition of his creditors, Enoch Carver was adjudged a bankrupt by the district court of the United States for the southern district of West Virginia, and the bankruptcy proceedings were referred to W. G. Mathews, referee in bankruptcy. A schedule of his creditors was filed, among whom was the bankrupt’s wife, Fannie J. Carver, who claimed three debts, one of $5,000, one of $5,-531.50, and another of $186. Pursuant to notice given by the referee, the creditors met and elected George E. Sutherland trustee in bankruptcy. On the 26th of June, 1912, the referee ordered a sale of the bankrupt’s lands, the order containing the following recital: “And it appearing at this meeting that the said Fannie J. Carver wife of the said Enoch Carver, will file and prove her claim for her contingent right of dower in each of the three parcels of real estate aforesaid, and that she is -willing that said three parcels of real estate, and each of them, be sold, and that she receive a gross ■ sum to be determined according to the law out of the purchase price of said real estate in full payment and satisfaction for her said contingent right of dower, and all her other dower rights or other interests therein.” The referee then ordered the lands to be sold free and clear of “all the dower rights — 646 — of said Fannie J. Carver therein.” After advertising notice of the time and place of sale, and that the property would be sold free and clear of all liens and encumbrances, the trustee, on the 17th of August, 1912, sold a certain lot situate on Kanawha Street at public auction to Charles Ward, since deceased, at the price of $27,100. Mr. Ward complied with the terms of sale, and thereafter paid the purchase price in full. On the 20th of August, 1912, the sale was confirmed, and thereafter the proceeds collected and disbursed to the creditors of the bankrupt under the direction of the referee. A deed of trust lien, dated July 21, 1909, in favor of the Life Insurance Company of Virginia existed on said Kanawha Street property, in the execution of which Fannie J. Carver had joined her husband, and on Avhich there was a balance due of $9,315, which was discharged out of the proceeds of sale. Enoch Carver died October 16, 1915', and in February, 1916, Fannie J. Carver, his widow, brought this suit in the common pleas court of Kanawha county against Charles Edwin Ward, Harold M. Ward, Nellie Gr. Ramsden and Margaret Gr. Ward, the heirs at law and widow of Charles Ward, deceased, asserting that she is entitled to dower in $17,785.00, that being the surplus of the purchase price paid by Charles Ward, deceased, for the Kanawha Street lot, remaining after payment of the deed of trust lien thereon, and praying that her said dower be made a charge on the land.- Defendants answered and admitted many of the facts alleged in plaintiff’s bill, but denied that she was entitled to dower, and alleged that the said lot was sold free and discharged from all the dower interest and right of plaintiff. They averred that plaintiff was a party to the bankruptcy proceeding and had appeared therein and consented that the lot should be sold free and clear of her contingent right of dower, and agreed that she was willing to accept a gross sum, to be determined according to law, in lieu thereof; and averred that she had received the benefit of the enhanced price at which the property sold, in the way of an increase in the per centum paid on her claims against her husband’s estate. But no part of the fund was turned over to Fannie J. Carver as a consideration for the release of her- contingent dower right, and no — 647 — order was made by the bankruptcy eourt for the purpose of protecting such dower right. It is claimed that, because it was necessary to sell the land in the lifetime of her husband to satisfy a lien thereon, which was paramount to her dower right, section 3 of chapter 65, Code of West Virginia, denies to plaintiff the right to be endowed in the land, and entitled her to commuted dower only in the surplus proceeds remaining after discharging the paramount lien; that she could look only to that fund for satisfaction, and has no right to pursue the land in the hands of a purchaser who has paid the full purchase price. That she is not entitled to dower in the land, in kind, is well settled. But in a number of prior decisions by this eourt, that statute has been construed to give the widow a lien on the land for the value of her commuted dower in the surplus, after her dower has become consummate, and that said lien follows the land into the hands of any subsequent alienee, however remote. Holden v. Boggess, 20 W. Va. 62, and Russell v. Caywood, 54 W. Va. 241. In the latter ease it was held that the wife’s contingent right to dower in the surplus remained a charge upon the land, but not assignable in kind, unless the land was sold free and acquit from her contingent dower. And in George v. Hess, 48 W. Va. 534, a creditors’ suit to-sell the lands of said Hess to satisfy liens thereon, some of which were paramount to the wife’s contingent dower right and others subordinate thereto, the proceeds of sale were more than sufficient to pay' off the paramount liens. Mrs. Hess, 'wife of the debtor, filed a petition in the suit praying that a portion of the fund be set apart for the protection of her contingent dower right, and the eourt dismissed her petition. She appealed to this court and it affirmed the decree on the ground, not that she was not dowable in the surplus, but for the reason stated in the opinion, that no provision need be made out of the proceeds of sale to meet the wife’s dower, if and when it should become consummate. And in Barbour v. Thompkins, 31 W. Va. 410, likewise a creditors’ suit, where there were judgment liens against the debtor’s land, all of which were subordinate to the wife’s right of dower, and a trust deed lien in which the wife had joined, which was an — 648 — terior to some of the judgments and subsequent to others, and all the proceeds of the sale were not necessary to the satisfaction of the trust deed lien, this court held that it was necessary to sell the land subject to the wife’s right of dower. The foregoing decisions settle the propositions, that where land of the husband is sold in his lifetime to satisfy a lien paramount to the wife’s contingent dower right and there is a surplus remaining after the discharge of such lien, the.wife becomes entitled to dower in such surplus on the death of her husband, and has a right to charge the land with the payment of it; and that her contingent dower right is not such property right as entitles her to demand that a fund be set apart to meet the contingency of its becoming 'vested. Upon its vesting it becomes a lien upon the land, enforceable even though the land has passed to a remote vendee. The bankruptcy act does not alter or affect the wife’s right to dower in her bankrupt husband’s lands. Her right depends upon the laws of the state where the land is situate. The trustee in bankruptcy took only such title to the lands as the bankrupt himself had. Plaintiff’s dower right was not a part of her husband’s estate and was, therefore, not liable to be sold for the purpose of paying his debts. But, it is claimed, the land was decreed by the bankruptcy court to be sold, and was actually sold free of plaintiff’s dower right and that her only remedy was by appeal from the decision of that court. Her dower right Avas not litigated in that court, it was not in issue by any pleading in the cause. The only purpose stated in the petition, which is apparently the only pleading in the .cause, was to have Enoch Carver declared a bankrupt and his property sold and the proceeds applied on his debts. There was no issue and consequently there •could have been no decision affecting plaintiff’s dower right, as a matter adjudicated. Hence, the doctrine of res judicata has no application. But counsel more earnestly, and Avith much more plausibility, we think, insist, that as plaintiff appeared before the referee, either in person or by counsel, and consented to a sale of the land free and acquit from her contingent right of dower, and as it appears the land, was so sold and she received — 649 — tbe benefit of tbe advance thereby obtained in price, in tbe way of an increase in tbe dividends paid on her claims against her husband’s estate, she is thereby estopped to claim a lien on the land for her dower. This is really the vital point in the case. No writing was filed by her with the referee, stating the terms of her consent, but the language of the1 order reciting it shows that it was conditional. Coupled with it is the provision, “that she receive a gross sum to be determined according to law out of the purchase price of said real estate in full payment and satisfaction for her said contingent right of dower.” This condition was not complied with, and in fact we do not see how compliance with it was possible, for there is no means provided by law whereby the value of the wife’s contingent dower right may be ascertained. It is not property and has no commercial value capable of ascertainment. It is a mere contingency wisely ordained for the protection of the wife in case she is left a widow, an event which may never happen, and until that contingency does arise, the law does not regard the inchoate right as property having transferable quality or commercial value. The law makes provision for its release or extinguishment, but none whereby it may be passed to another. By joining her husband in the execution of a deed of conveyance, the wife simply releases her contingent right and is thereby estopped to assert claim to dower; she does not convey anything. Plaintiff:’s consent being conditioned on her receiving out of the proceeds of the sale about to be made, a sum of money not stated, and for the ascertainment of which the law furnishes no means, and no provision having been made by the bankruptcy court for paying to her any sum in consideration for her alleged consent, and not having received anything on that account, she is not estopped. Her consent being conditional only, and the condition not having been complied with, it would be very unjust ánd inequitable to apply to her the doctrine of estoppel. She did nothing to mislead the purchaser. Her consent appeared of record and he was bound to know that it was conditional only, for the doctrine of caveat emptor applies and he is affected by what the record discloses. He therefore knew, or should have known, that if the condition — 650 — was impossible or was not complied with, plaintiff’s consent was not binding. Moreover, the proceeds of sale in his hands was the only fund which could have been applied to the satisfaction of her dower light, and it was incumbent on him to see that she was properly protected before paying all the purchase money to the trustee. In the event she was not otherwise protected, he could have retained enough of the purchase money in his hands to protect himself in case her dower should become consummate. Porter v. Lazear, 109 U. S. 84, in some of its aspects is similar to this ease. It grew out of a bankruptcy proceeding in the United States district court for the western district of Pennsylvania, under the old bankruptcy act, respecting the wife’s dower light in the lands of the bankrupt. There, the court ordered a sale of the bankrupt’s land clear of all liens and encumbrances, except a certain mortgage for $2,550, and it was accordingly advertised and sold: It brought $465, for which the purchaser 'executed his note. At the time of the sale the bankrupt had -a wife, who was still living when the suit to which we have referred was brought. It was a suit by the assignee in bankruptcy against the purchaser to recover the money due on the purchase money note, brought in the state court. ' The assignee executed and tendered the purchaser a deed for the property and demanded payment, which was refused.on the ground that the land was encumbered with the right of dower. The supreme court of Pennsylvania gave judgment for the defendant, and the assignee in bankruptcy appealed the case to the Supreme Court of the United States, and that court affirmed the judgment of the state court, holding that the purchaser had a right to retain the purchase money in his hands as a protection against the encumbrance of the dower right of the wife of the bankrupt. The fact that plaintiff received her share of the proceeds as a creditor of her husband’s estate does not affect her right to dower. Her claims were of the general class, and on debts of that class there were paid two dividends aggregating a little over 15 %. The small increase in dividends which she may have received because of the advance in price for which the property was sold, on the supposition that she had re — 651 — leased ber dower, does not estop ber from now asserting it as a liability against tbe land. There is no means of ascertaining bow much less tbe property would have brought, if it had been ordered sold subject to her dower, and hence no way to determine bow much more she received as a creditor than she would otherwise have received. But judging from the small per centum that was in fact paid on her claims, the ad" ditional amount she thus received is certainly very small, and is no consideration for the release of dower. The order of the circuit court refusing an appeal from the decrees of the common pleas court is affirmed. Affirmed.