Clements v. Bostwick , 38 Ga. 1 ( 1868 )

Wabkeb, O. J.

The main question presented by the record in this case for our consideration, and judgment, is, whether the widow of Bostwiek is entitled to dower in the land sold and conveyed by Clements to Bostwiek in his lifetime, to the exclusion of the vendor’s lien upon the land for that portion of the purchase money which was unpaid at the time of Bostwick’s death. By the 1753 section of the Code, dower is declared to be, the right of a wife to an estate-for-life in one-third of the lands according to valuation, including the dwelling house, (which is not to be valued unless in a town or city,) of which the husband was seized and possessed, at the time of his death, or to which the husband obtained title in right of his wife. To entitle the widow to dower in the land of her deceased husband, she must prove a lawful marriage, the death of her husband, and that he was lawfully seized and possessed of the land, at the time of his death. The marriage of the parties, the death of the husband, and his seizin of the land at the time of his death is not denied, nor controverted. But it is insisted, that this legal estate of the wife, intended by the common law, as well as by our own Code, for the sustenance of the wife, and the nurture and education of the younger children, should be made subordinate to the latent equity of the vendor’s lien for the unpaid purchase money for the land sold and conveyed to the deceased husband.

That the widow has the legal title to her dower in the land, there can be no doubt. Shall the latent equity of the vendor’s lien for the unpaid purchase money of the land, which was not enforced during the lifetime of the husband, be allowed to override, and defeat the legal title of the wife to her dower in the land, after the death of her husband? The vendor of the land might liave retained the title in his own' hands until the purchase money was paid, but if he conveyed the legal title to Bostwiek, relying upon his vendor’s lien for his security for the purchase money, he took the risk of the legal consequences which would result in case of the death of Bostwick, and if he failed to enforce his vendor’s lien during his life, he cannot reasonably complain of the effect and operation of. the public law, which gives to the widow her dower in the land conveyed by him to her deceased husband. It may have been, that the vendor did not contemplate the death of his vendee before the purchase money for the land was paid, when he conveyed the legal title to the land to him, but that cannot effect the widow’s legal right to dower in the lands .of which her husband was seized and possessed at the time of his death.

After a careful examination of the provisions of the Code, we think it was manifestly the intention of the Legislature that the widow’s legal right to dower in the lands of her deceased husband, should be superior to all liens — and especially .to the secret vendor’s lien. By the 1759th section of the Code it is declared, that “no lien created by the husband in his life-time, though assented to by the wife, shall in any manner interfere with her fight to dower.” So when the widow elects to take a sum of money in lieu of her dower in her deceased husband’s land, it is declared, that the amount awarded by the commissioners appointed to assign her dower, “ shall be paid in preference to all other claims out of the proceeds of the sale of the land.” Code, section 1761. In the judgment of the majority of the Court, the widow’s legal right to dower in-the-land-, mentioned in the record, must prevail over the equitable claim of the vendor’s lien which is attempted to be enforced after the death of the husband. Let the judgment of the Court below be affirmed.

Walker, J., concurred, but wrote out no -opinion.