Dimond's Adm'x. v. Billingslea , 2 H. & G. 264 ( 1828 )

Stephen, J.

at this term, delivered the opinion of the court, This is an action of covenant brought in Baltimore county court by the appellee against the appellant’s intestate, in which it is stated that the appellant’s intestate on the 9th of November 1815, by deed, bargained and sold to him all that tract or parcel of land lying in Harford county, known by the name of Horse Range, for the consideration therein mentioned, and in said deed covenanted to warrant and defend the same against the lawful claims of all persons, and that the plaintiff might hold and enjoy the Same. The plaintiff averred that he entered thereinto accordingly, but could not hold the same free of incumbrances; neither did the vendor warrant and defend the premises according to his covenant, though requested to do it. But that one Elizabeth JH‘Comas, being then and ever since lawfully entitled to dower, recovered judgment thereof in a suit against the appellee; and also, upon a bill filed in the court of Harford as a court of equity. And by force of a writ of execution issued out of said court, on said judgment at law, the said Elizabeth M‘ Comas entered into the premises, and evicted the plaintiff below, (the now appellee,) therefrom, and holds one-third part thereof by legal assignment, as and for her dower-To this declaration the defendant pleaded, that he had not broken his covenant; and issue was joined between the parties. On the trial of the cause, the plaintiff gave in evidence to the jury the deed containing the covenant of warranty under which he claimed title to the property in which dower was claimed by Elizabeth Myomas. He also gave in evidence a record of an action of dower by E. McComas, brought in Harford county court against him, in which there was a confession of judgment, and an execution, by virtue of which, her dower was laid off and assigned to her by the sheriff. And he further gave in evidence the record of a suit on the equity side of Harford county court, in which, as complainant, he prayed for, and obtained an injunction to stay .proceedings on said judgment, in which suit a commission issued to take testimony; and that, on the return of the commission, the cause was set down for final hearing, and the bill dismissed. It appeared by the-proceedings on the equity side ot the court, that in 1794, N. D. M‘Comas was seized of the land in question, and in March 1794, he executed a bond for conveying the same to a certain C. A. Desables, who paid a considerable part of the purchase money to Ml Comas, and gave his bond for the residue; that on the 18th of July 1795, Comas executed a deed for said land to Desables, at which time Desables executed a mortgage to illlComas, for the residue of the purchase money; that on the 23d of July 1794, N.D. Ml Comas married Elizabeth M‘Comas; that Desables sold and conveyed the land, and the title is now in Rillingslea, and that Elizabeth M( Comas had recovered her dower in the land. Upon this evidence the defendant prayed the opinion of the court, and their direction to the jury, that as the plaintiff had never prosecuted any appeal or writ of error from the judgment or decree aforesaid, or from either of them, the plaintiff is not entitled to recover. Which opinion and direction the court refused to give; but were of opinion, and so instructed the jury, that upon the evidence, if the jury believed the same, the plaintiff was entitled to recover. Whether the court below were correct in the opinion pronounced by them, is the.question to be decided by this tribunal. It appears' by the facts in the case, that at the time N. D. MiComas executed a deed for the land to Desables, he was married to Elizabeth MiComas, in whom a right of dower at law had unquestionably vested; for although the equitable interest was vested in Desables, by virtue of his contract of purchase, and a part payment of the purchase money, still the legal title remained in N D. Myomas; and although the wife would not be dowable in equity, under such circumstances, the vendor, in the view of that court, being considered a trustee of the land for the vendee, and the principle being clearly settled, that a wife is not dowable of a trust, (for which see Sugden on Vendors, 130;) yet the wife’s right of dower clearly existed at law.

The next question is, was Billingslea bound to prosecute an appeal from the judgment at law? Under all the circumstances, we think he was not; not only because he had not the shadow of a defence at law, but because he filed his bill on the equity side of Harford county court, where, if any where, the claim of dower could only be successfully resisted, by which court the bill, on final hearing, was dismissed. Upon this view of the subject, this court are of opinion that there was no error in the opinion of Baltimore county court delivered to the jury, and that the same ought to be affirmed.

.TYDCWEGNT AFFIRMF.n-