Markham v. Merrett

Mr. Chief Justice Sharkey delivered the opinion of the court. The appellant filed her petition in the probate court of Yazoo county, praying that dower might be allotted her in certain lands and town lots, of which her husband Lineus B. Markham had been seized during coverture, particularly by specifying each tract of land and town lot. Her claim was resisted by the appellees; [444] Merrett and four others, all holding separate lots in the town of Manchester, and the court having decreed in favor of the appellees, this appeal was taken. The appellees all except one insisted in their separate answers that Markham was not in his life time seized of the lots claimed by them, except as a partner with Vincent Galloway, and also on relinquishments made by demandant. To avoid the relinquishments, the demandant replied infancy, which being fully sustained by the proof, and no subsequent act of ratification shown, cannot be seriously questioned. It is, insisted, however, that before she can be entitled to dower, she must restore a proper proportion of the purchase money; and secondly, that she is not entitled_ to dower, because the lands and town lots were purchased and sold as partnership property. Wherever the contracts of infants are voidable merely, they are in some instances required to restore the consideration received, before they are allowed to avoid them. Thus, in executed contracts for chattels, the purchase money must be restored, and perhaps the same rule might be justly applied as to real estate. When goods have been sold to an infant on a credit, if he wish to rescind he must restore them. But in this instance, we have no evidence that Mrs. Markham received any thing, and her right to avoid cannot therefore be placed on the condition that she pay back. We have seen no authority which would justify us in holding her bound to pay back a part of the purchase money received by her husband. The case therefore must turn exclusively on the other question, to wit: is the wife entitled to dower inlands which Markham held in his life time in partnership with Vincent Galloway, and which were sold during coverture ? ■ We hold the affirmative of this proposition, and think that under the circumstances of the case, there can be no doubt about the correctness of oiir conclusion. It is true, that there may be cases in which a wife will not be entitled to dower in land held in partnership, but the reason is obvious, and cannot apply in a case like the present. When land is held by a firm, and is essential to the purposes and objects of the partnership, then it is regarded as a part of the joint stock, and will be regarded in equity as a chattel. Or if it be apparent from [445] the contract of partnership that it was designed to constitute a part of the joint stock, and to be sold as such for the payment of debts, and the surplus divided, then it will be so regarded in equity, being there treated as that species of property into which it was designed to be converted. This distinction, I apprehend, furnishes the ground on which dower is to be allowed or disallowed in chancery. But to what extent, or to what portion of the real estate held by a partnership, a court of chancery will apply this rule, and consider it as joint stock convertible into personalty, is a question which seems to have been much mooted, and which is even now in rather an unsettled state. The earlier decisions in* England went no further than to apply the rule to such real estate as was absolutely necessary for the purposes of- the partnership, or to such as was by the agreement of the parties to be held as joint stock, and sold and applied as such at the dissolution of the firm. The later decisions there seem to incline towards the propriety of considering all lands held by a partnership as standing on the same footing. . One reason which induced the courts to favor a change of the rule was, that it was unjust to prefer the rights of the heir at law, when-the whole family may have been induced to look to it and consider it as a common fund for the benefit of all when the firm should be dissolved. This reason could have no weight here, the right of primogeniture being abolished. Still some of the courts of this country seem inclined to follow the modern English rule to its full extent. We are not inclined to discuss this vexed ques-lion, as the case before us docs not require that we should decide between the conflicting authorities. 1 apprehend that no case can be found which would furnish an authority for the interposition of a court of chancery, unless the case should present one of the following features. 1. That the land held by the partnership was necessary to pay the debts of the firm. 2. That by the contract of partnership it was agreed to be treated as joint stock,, and sold at the dissolution. 3. That the parties themselves had cohsidered it as personalty and part of the joint stock. Or, 4. That a sale was necessary to make proper distribution. In a case which presented any of these questions, a court of equity might possibly treat the land as personalty; but this is a question exclusively of [446] equity jurisdiction, and we are in this case not deciding it in that capacity, nor do we think the facts would justify the application of the power, even if we had it. The articles of partnership are not before us, but Galloway, one of the partners, after being released from his covenants, was examined as a witness. He says that the partnership was formed in 1833, for carrying on a mercantile business, which was afterwards extended by mutual consent to the purchase and sale of town lots, tracts of land, plantations, and to planting, and the record shows that a very extensive business of this sort was done. These purchases were not made for the purposes of the firm, according to its original design. They were not necessary to enable the parties to carry on a mercantile establishment, nor have we any evidence that the lands so purchased were by the contract to be considered as personalty. They did not themselves treat the land as personalty or joint stock; they conveyed not by their partnership name, but as individual tenants in common, and in every instance a relinquishment of dower was taken, showing that they considered that they were making an ordinary conveyance of land. The purchase of land with the joint fund constituted them tenants in common, and might be regarded as a division of the fund to that extent. The lands in which dower is claimed were sold during coverture, and this necessarily cuts off the inquiry as to whether they are to be considered as a part of the joint stock. 'No one who has an interest in that stock is contesting the claim. The land is now beyond even the reach of the convertible power of a court of equity, and even if it would under different circumstances treat it as personalty for the purpose of closing the firm, paying the debts and dividing the surplus, it cannot now be so treated. It is now the case of a tenant in common who has conveyed without valid relinquishment of dower. The statute is express that the widow shall be endowed of lands of which her husband died seized, or which he had before conveyed, in which dower had not been relinquished. In support of this view of the subject, I refer to Green v. Green, 1 Hammond’s Rep. 535; Bell v. Phyn, 7 Vesey, 458; Ripley v. Waterworth, Ib. 425; Colyer on Partnership, 70 to 77; Roper on Husband and Wife, 345; Park on Dower, [447] 106-7; 6 Yerger, 20; Sumner v. Hampson, 8 Ohio Rep. 328; 11 Mass. Rep. 470. It seems that dower inlot 232 was refused by the court because it was held in trust, this lot having been conveyed by Markham only. The deeds are not set out at length, but it is agreed that they are properly ^described. The record states that “demandant read in evidence record of deed of Lineus B. Markham to H. G. Runnels, conveying lot 232 in Yazoo City for the consideration of one thousand dollars.” From this description we learn nothing of a trust, and we cannot therefore decide the question in that way. The rule in regard to allotting dower, when improvements have been made by the alienee will be found in the case of Wooldridge v. Wilkins, 3 Howard, 360. The judgment must be reversed and the cause remanded.