Miller v. Stump , 3 Gill 304 ( 1845 )

Magruder, J.,

delivered the opinion of this court.

Upon the appeal of M. C. Miller.

In this case the decree must be affirmed. The plaintiff in error, filed her bill of complaint in Harford county court, setting as a court of equity, and claimed dower, in the lands therein mentioned, and an account of rents and profits. The account was taken, and payment of the amount was decreed by the court below, but being less than the sum to which the plaintiff in error supposed herself to be entitled, she appealed from the decree.

It has been decided by this court, upon an appeal by the defendant in error, that the complainant in the case is not entitled to relief, in this suit. Of course it is unnecessary to decide, whether the accounts be according to the testimony.

decree affirmed with costs.

Upon the appeal of T. C. Stwmp.

The defendant in error, is the widow of the late William F. Miller, and in her bill of complaint claims dower in several tracts of land, of which she alleges that her husband was seized, during their coverture.

Some of the lands were conveyed to her husband by John Wilson; and of the rest, her husband’s father died seized, and the land descended to his children.

Of her claim, to dower in the lands conveyed by Wilson, we will first dispose.

It is admitted in the case, that after the marriage of the defendant in error, the lands were conveyed by Wilson to the husband. The deed bears date the 25th day of May 1813, and is' a conveyance in trust for the use and behoof of said Wilson, during his natural life, and after his decease, to the grantee, (the husband of the defendant in error,) in fee. On the 1st of December 1824, the grantee mortgaged the same lands, to secure the payment of a sum of money which he owed to one John Herbert. He then applied for the benefit of the insolvent laws, and his trustee afterwards sold the mortgaged premises to the plaintiff in error, for a sum which exceeded that due on the mortgage. Wilson, the grantor in the deed first mentioned, died before Miller, but some time after the execution of the mortgage.

Is the widow entitled to dower in these lands ? According to the law of Maryland, she is not entitled. It may be, as has been suggested, that the decision of the courts of some of our sister States would entitle her to dower, if the real estate was situate in those States. But we do not take our law from those States. The law of England is the law of our State, in regard to dower, “except when and so far as it may be changed by our legislature;” and the English law, as we received it, did not give a widow dower in such an estate, as the husband had in these lands.

Our act of Assembly of 1818, ch. 193, is the only law of Maryland, which gives the widow a right to dower in an équitable estate; and that act as expounded by this court, in the case of Hopkins against Fry, (decided December term 1844,) does not give to the defendant in error, dower in this land. It was there decided, that the claim to dower in an equitable estate, can be asserted with success only when allowance of it cannot “operate to the prejudice of the rights of any but creditors, heirs, and the devisees in a will,” executed subsequently to the passage of the law. It would operate to the prejudice of others, if in this case, when the equitable title had been parted with by the husband, during his life, the widow was allowed dower. The act of Assembly does not say, and it ought not to be construed to mean, that the widow shall be “entitled to dower, in lands, held by equitable title in tire husband,” at any time during the coverture.

The mortgaged premises, however, sold, for more money than the debt secured by the mortgage, and it may be asked, whether she cannot claim, in lieu of one-third of the land, a portion of the surplus, or the interest, during her life, of one-third of the surplus ? In some cases, it may be argued, that the widow is entitled to a portion of the surplus. It is not necesary, however, upon this appeal, to enquire if such be the law of this case. If, indeed, she be entitled to receive anything, she is not to receive it of the purchaser, and he is the only person of whom she is now claiming it. He purchased and holds the land, free, and discharged from any claim of dower. So much of her claim, then, must be disallowed.

The next enquiry is, can she claim dower in the other parcels of land?

These consist of real estate, of which the father of her husband died seized, in fee, during the coverture, and which descended to the latter, and the other children of the deceased.

It is admitted by the parties, that upon an application to the county court for a division of the estate, and a report by tire commissioners, that it was incapable of division; a sale of the land, by the commissioners, was ordered, and at that sale the husband of the defendant in error, became the purchaser, and gave bonds to the other heirs for their proportion of the purchase money; that these proceedings were confirmed, and the bonds approved of by the court; that the purchase money was unpaid when the purchaser applied for the benefit of the insolvent law, as before stated: the lands were afterwards sold by the trustee, and for a sum not more than sufficient to pay the other heirs, and a claim against the estate of the deceased for which these lands were answerable; that the husband, after he became the purchaser, was put in possession of the land, and held possession of the same, until he applied for the benefit of the insolvent law, but never obtained a conveyance.

This land having been sold to pay the money due to the other heirs, who had a lien on it, the widow, it is the opinion of the court, acquired no title to dower by reason of the purchase.

DECREE REVERSED AND BILL DISMISSED WITH COSTS.