Price v. Hobbs , 1877 Md. LEXIS 111 ( 1877 )

Alvey, J.,

delivered the opinion of the Court.

The two cases embraced in the one record before us were actions of dower, instituted by the appellee against the appellants, to recover dower in lands of which it is alleged the husband was seized after his marriage with the demandant, but which were alienated in his life-time. By agreement, .judgments were entered pro forma in the Court below, in favor of the demandant, for dower in the lands described in the declarations ; and it is from such judgments that appeals have been taken.

By the agreement under which the pro forma judgments were entered, it is provided “that an appeal shall be forthwith entered on behalf of the defendants, and that the said cases shall be forthwith carried to the Court of Appeals for review of said judgments, and for final adjudication of all questions of right and interest between the respective parties to said suits, arising out of the pleadings, evidence and statement of facts; and in order to make such judgment final, the Court of Appeals shall have full power and authority to consider and pass upon any claim on the one side, or defence on th.e other, arising out of the pleadings, evidence and statement of facts in the respective cases, that might be legally and successfully set up or pleaded, either at law or in equity.”

These actions being actions at law, of course, no consent of parties can confer power or jurisdiction on this Court to review the judgments therein, and determine the rights of parties upon any other principles than' such as properly apply to such actions, and which the Court below would have been authorized to make the rule of its decision. Otherwise, it would- be in the power of the parties to a cause, by their mere agreement, to confer original jurisdiction, -where the Constitution and laws have conferred appellate jurisdiction only. The jurisdiction of this Court is one solely of review, and the consent of parties cannot clothe it with power, on an appeal from a judgment at law, to convert tbe action into a bill in equity, and so shape and form the proceedings as to give force and effect to principles exclusively of equitable cognizance. It is a well established maxim that consent of parties will not confer jurisdiction on a Court, where no jurisdiction exists without such consent. Bents vs. Graves, 3 McCord, 280; Overstreet vs. Brown, 4 McCord, 79; Lindsay vs. McClelland, 1 Bibb, 262.

But notwithstanding that the specific questions for review are not property presented, and the judgments which may be rendered in these cases can only be in respect of the legal rights of the parties, we shall, in view of the agreement, and in order to avoid delay, cost and further litigation, if possible, express an opinion as to the rights of the parties, both legal and, equitable, upon the facts before us; the equitable rights thus determined to be accepted by the parties as modifications of the legal rights determined in the judgments, and thus give effect to the terms of the agreement.

According to the statement of facts agreed on, William A. G. Hobbs and the demandant were married in 1831, and the former died in the year 1874. In 1832, William Ring-gold and Mary his wife, being the father and mother of the demandant, executed and delivered to William A. G. Hobbs a deed for a tract of land called “Sportsman’s Hall.” This land belonged to Mrs. Ringgold, the mother of the demandant, having been devised to her by her father John L. Blake. The deed conveyed the land absolutely and in fee-simple. At the time of making this deed, that is to say, on the second of February, 1832, Hobbs, the purchaser, executed under his hand and seal, the following agreement: — “I have purchased of Wm. Ringgold and Mary Ringgold, his wife, the farm called ‘Sportsman’s Hall,’ which was devised to the said Mary Ringgold, by her father, John L. Blake, and am to pay eight dollars an acre for said land, after deducting such parts thereof as have been heretofore sold. .The whole purchase money is to be paid by me equally among the children of the said Mary Ringgold, immediately after her decease, and upon their arrival at legal age; and in case of the death of either, or any of said children without legal issue, then the portion of such deceased child to be equally divided amoDg the survivors ; and I am to reserve to myself a child’s part of such purchase money in right of my wife. The said purchase money is not to bear interest during the life of the said Mary Ringgold, but I am to apply annually, during her life, a sum equivalent to such interest, to such purpose as I may think most useful to her and her family. I am also to reserve for her use, during her life, the dwelling-house, kitchen, meat-house, poultry-houses, and garden on said farm, with the privilege of getting fire-wood, of pasturing four head of cattle, and of raising any kind of poultry, except turkeys. And if the said Wm. Ringgold should survive his said, wife, then I am to retain in my hands one thousand dollars of said purchase money during his life, the interest of which is to be applied by me in such manner as I may think most to his advantage ; the said sum to be distributed as above mentioned after his death ; and if I should refuse or neglect to secure to the said Mary Ringgold the annual sum and the privileges above mentioned, and to the said Wm. Ringgold the interest above mentioned, after the death of his wife, it is understood, and I hereby agree to pay to the children of the said Mary Ringgold, at the times specified for their receiving the principal of the purchase money, interest on the sum from the first day of January last, and to forfeit such portion of said purchase money as I should be entitled to in right of my wife.”

The consideration expressed on the face of the deed as having been paid, is $3000. The land passed into the possession of Hobbs and he held it until it was sold for his debts in 1844. At fhe date of the deed and contract Mrs. Ringgold had five children, including Mrs. Hobbs ; one of whom, Mrs. Pratt, died in 1854, without issue. William Ringgold, one of the grantors in the deed, died sometime before the year 1845, and Mrs. Mary Ringgold, the other grantor, died in the early part of the year lSTO.

In the year 1831, Hobbs made to Valentine Bryan a mortgage of the land embraced in the deed from Ringgold and wife, as indemnity for suretyship, and to secure a certain indebtedness to the mortgagee; and on the 14th of September, 1844, Brjuin, the mortgagee, became purchaser of the equity of redemption in the land at sheriff’s sale, made on execution against Hobbs ; the judgment upon which the execution issued being subsequent to the date of the mortgage. Bryan, the purchaser, became possessed of the land from the time of the sale, and from the time of his death, in 1848, to the present, it has remained in the possession of those claiming under him. The land has been divided into several parcels, and is now owned by different parties, and it has been considerably improved by the erection of buildings and otherwise, before the death of Hobbs, in 1814.

1. On this state of facts, there can be no doubt or question as to the demandant’s legal right to dower in the land conveyed by the deed of the 2nd of February, 1832. There was legal and unconditional seisin in the husband, and that seisin was beneficial and for his sole use. In such case, the inchoate right of dower attaches from the vesting of the title in the husband, if acquired after marriage, and becomes consummate on‘the death of the husband, the wife surviving; and no intermediate conveyance or charge by the husband alone will defeat the wife’s right to dower.

Nor did the contract of Hobbs, executed at the time of receiving the deed, in any way modify or affect his seisin under the deed. The contract created an equitable lien or charge upon the land for the purchase money, and also in respect to the privileges reserved for the benefit of Mrs. Ringgold, and such lien or charge was in the nature of an equitable mortgage ; but the contract did not, like a legal mortgage, divest the legal title and seisin under the deed. The lien,or charge, thus created, having its inception in the contract of purchase, was paramount to the wife’s claim to dower ; and as against those claiming the benefit of the lien under the contract, she could only claim her right to dower in the surplus, after the full discharge of the lien. Moreton vs. Harrison, 1 Bland Ch., 499, 500 ; Ellicott vs. Welch, 2 Bland Ch., 242; 1 Scrib. on Dow., 530-533. That this contract constituted a lien or charge upon the land, has been expressly adjudicated, as appears from the case of Ringgold vs. Bryan and others, 3 Md. Ch. Dec., 488, to which the demandant and her husband were parties.

2. In the case just referred to, Mrs. Ringgold, in 1845, after the death of her husband,, filed a bill in the 'High Court of Chancery against Bryan, the purchaser of the land, and others, for the enforcement of the contract of Hobbs, proceeding upon the ground that the land had been purchased by Bryan with notice of the contract, or if not with actual notice, that there were circumstances sufficient to put him on inquiry; and the Chancellor so decided. The case was referred to the auditor, and an account was stated of the purchase money owing, with the interest thereon, and also of the value or equivalent of the privileges reserved for Mrs. Ringgold on the land. This account was finally ratified; and in the final decree ratifying the account passed in 1851; the amounts ascertained were directed to be brought into Court by a given day, and in default thereof that the land should be sold. Before this decree was passed Valentine Bryan had died, and his heirs had been made parties to the cause, and his real estate had been partitioned; and John O. Bryan, one of his children and heirs-at-law, had elected to ■ take “Sportsman’s Hall,” at a valuation. The present defendants derive title immediately through John C. Bryan, deceased, or his devisees. It appears that Mrs. Ringgold was fully paid the interest of the purchase money down to the time of her death, and also the annual value of her privileges reserved on the land; and that all of the purchase money due on the land, except one-fourth part thereof, has been paid to the three surviving children of Mrs. Ringgold, other than the demandant, and they make no further claim. This money, thus paid, was paid by or for the heirs and distributees of Valentine Bryan, by an arrangement among themselves, and in exoneration of the land which had been decreed to be sold.

Now, as we have already said, the lien or charge created by the contract, was paramount to the demandant’s claim to dower in the land : and as the heirs of Valentine Bryan have been required to discharge the lien, it is but fair that they should bo substituted to the place of those who have received the money. It is very certain, if "the land had been sold under the decree, it would have been sold free and clear of all claim of the demandant to dower in the land: for the decree, in express terms, declared that the land should be sold free, clear and discharged of all claims of the parties to the cause, and of all persons claiming by, from or under them ; and the demandant and her husband were parties to the cause. In the event of sale under the decree, she could only have claimed dower in the surplus proceeds, after discharging the lien, and all the expenses attending the proceedings and the sale. She contributed nothing to the exoneration of the land, and there is no reason, therefore, why she should be better off, and the parties paying the money worse off, because the land was redeemed rather than allowed to be sold for the satisfaction of the lien. There was no personal obligation on Valentine Bryan, or his heirs, to pay off the lien, and the decree created none; the personal obligation was upon Hobbs, with the superadded security by way of lien upon the land; and the main object of the decree was to enforce the lien specifically.

In 2 Sto. Eq. Juris., sec. 1227, the law is stated to be that “if a subsequent encumbrancer, or purchaser from the vendee, is compelled to discharge the lien of the vendor, he will in like manner be entitled to stand substituted in his place against other claimants under the vendor on the estate, and to have the assets marshalled in his favor.” • And the same principle was distinctly applied by the Chancellor in the case of Bowie vs. Berry, 3 Md. Ch. Dec., 359, 364, in passing upon a question of the right to dower. In that case Bowie, the husband, had purchased a tract of land during marriage, and sold it to Berry before he had paid all of the purchase money. Berry paid a certain sum on his purchase to Bowie, who applied it to the payment of the purchase money due to his, Bowie’s, vendor; and the Chancellor, in speaking of the application of this payment made by Berry, said that it should be deducted from the value of the land, as ascertained at the death of Bowie, before the dower, or its equivalent, was awarded the complainant. “To that extent,” continued the Chancellor, “I regard the defendant as occupying, by substitution, the place of those who sold it (the land) to Bowie; and as the dower claim could not be enforced to their prejudice, so neither can it as against Berry, so far as he stands, by substitution, in their shoes.”

The doctrine of substitution is of familiar and frequent application in Courts of equity, as a means of doing substantial justice, and but few cases could be suggested more strongly requiring its application than the present. The amount of money, therefore, paid by or for the heirs of Bryan, under the decree, and in discharge of the lien upon the land, should be deducted from the value of the land as of the time when the value is ascertained for the purpose of having the dower assigned, and before assignment; the claim to dower applying only to the residue after such deduction.

3. The next question that arises is one of construction, and that is, whether, under the contract of the 2nd of February, 1832, the land is liable for that portion of the original purchase money which was reserved to Hobbs, the purchaser, in right of his wife; or, in other words, whether the wife, having survived her husband, has any claim as against the land, for that portion of the purchase money, or any part of it?

This question was left open by the decree in the case of Ringgold vs. Bryan and others, and it is now supposed that Mrs. Hobbs is entitled by right of survivorship. We are clearly of opinion, however, that the claim is not well founded.

By the contract, Hobbs stipulated to pay the whole purchase money, immediately after the death of Mrs. Ringgold, to her children equally, upon their arrival at age ; and in case of the death of either of the children without legal issue, the portion of such deceased child to be equally divided among the survivors; he, however, reserving to himself a child’s part of such purchase money in right of his wife. This was matter of agreement between the parties, and Mrs. Ringgold, the owner of the land, had the perfect right, with the consent of her husband, to say how the purchase money should be disposed of after her death. It may ha've been a material consideration with the purchaser, inducing him to make the purchase, that he was allowed to retain to himself and for his own benefit, such portion of the purchase money as his wife could have claimed in an equal division among the children living at the death of their mother. As will be observed, the reservation is to the husband himself alone, and not to the wife; and, according to the plain meaning of the terms employed, construed in reference to the law as it then stood, in regard to the marital rights of the husband, it is manifest that no right of survivorship was contemplated in the wife. If Hobbs had retained the land, and, on the death of Mrs. Ringgold, in 1870, had paid the other children their proportion of the purchase money, it could hardly be contended that the portion reserved to himself would still be a charge upon the land, dependent upon the survivorship of the wife. At the death of Mrs. Ringgold, the proportion of the purchase money that Hobbs was entitled to retain was one-fourth ; and as from the time of the death of Mrs. Pratt, one of the children, in 1854, without issue, Hobbs was personally discharged from that proportion of the principal of the purchase money, the land stood also discharged to that extent; though both Hobbs and the land remained still bound for the interest on that portion until the death of Mrs. Ringgold, in 1870.

4. We come now to a question of considerable importance in these cases, and that is, in what condition of the land is dower to be assigned ; —whether according to the improved value at the time of assignment, or at the death of the husband, or in such manner as to exclude the value of the substantial improvements placed upon the land since the sheriff's sale in 1844 ?

It is shown in proof that the land has been divided and sold out in different parcels, and that it all has been considerably improved. Buildings have been erected, and the productive quality of the land has been greatly increased by the application of manures and fertilizers ; and the question is, whether the demandant is to have the benefit of these improvements in the assignment of her dower? .

As against the heir, there is no question but that the widow is entitled to dower according to the value of the land at the time of the assignment, Co. Litt., 32, a; but as against an alienee, the rule in this country differs from that established in England by the more modern authorities. In tbe case of Riddell vs. Gwinnell, 1 Q. B., 682, it seems to be settled in England, that the same rule that applies as between the widow and the heir should apply as between the widow and the alienee, and by that rule the widow gets the benefit of all improvements made by the alienee subsequent to the time when the husband parted with his estate ; though it seems to have been conceded in that case that the older authorities gave sanction to the rule, whereby the widow would be excluded from the benefit of such improvements. In this country, however, the rule is settled by overwhelming authority, that, as against an alienee, the widow is not to be allowed the benefit of the improvements made by the alienee; and the true rule, deducible from the authorities, and as stated by Chancellor Kent, would seem to be “ that the improved value of the land, from which the widow is to be excluded, in the assignment of her dower, as against a purchaser from her husband, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes.” 4 Kent’s Com., 68 ; Thompson vs. Morrow, 5 Sergt. & Rawle, 289 ; Powell vs. Mon. & Brimf. Man. Co., 3 Mason, 347, 373-5; Dunseth vs. Bank U. S., 6 Ohio Rep., 76; Gore vs. Brazier, 3 Mass., 544 ; and 2 Scrib. on Dow., 576-7-8, and 588-9, where the authorities are collected. But to give full effect to this rule, after excluding all the improvements made by the alienee, before demand of assignment, the assignment of the dower should be made according to the value of the land at the time of assignment; and this was the conclusion in the cases to which we have referred. The reason of the distinction between the case of the heir and that of the alienee is not material to be stated here; but it is most obvious that if the widow should be allowed the full benefit of all the improvements placed upon the land by the alienee, from the time of alienation to the time of the assignment of dower, such principle would operate greatly to discourage and restrain the improvement of land, as it would also lessen its vendible value. Therefore, as matter of-policy, as well as upon the reason and justice of the thing, the American doctrine would seem to be well founded.

The question as here presented has never been considered and determined in any previous case by this Court. In the case of Sellman vs. Bowen, 8 Gill & John., 50, which was a bill against an alienee for an account of rents and profits, after a recovery of dower at law, the Court said, in the conclusion of its opinion, that the account would be taken from the time of the demand made, and that the rents and profits were to be estimated according to the improved value of the premises. But there was no question in that case in regard to improvements made prior to the complete accrual of the right of dower, nor does it appear that any such question was either suggested by the counsel or discussed by the Court. Nor has that case been considered as settling any rule in reference to this particular question ; for we find Chancellor Johnson, in the case of Bowie vs. Berry, 1 Md. Ch. Dec., 452, and again, in the same case, in 3 Md. Ch. Dec., 359, after careful consideration, as he himself states, adopting the rule stated by Chancellor Kent ; and the correctness of that decision has never been questioned either on appeal or otherwise.

It has been suggested by counsel, that inasmuch as Yalentine Bryan was a purchaser of the land at sheriff’s sale, and not directly from Hobbs, he cannot therefore be regarded as an alienee within the rule just stated ; but that suggestion cannot be sustained. It has been expressly held, that a purchaser under execution occupies the same position, in regard to improvements made by him, as he would do if the land had been directly conveyed to him by the husband. Ayer vs. Spring, 9 Mass., 8; 2 Scrib. on Dow., 579.

5. The last question is as to the damages to which the demandant may be entitled for the detention of her dower.

At the common law, when dower was detained from the widow, and she was compelled to resort to her writ of dower, she could recover no damages for the detention, but was entitled only to the profits of her third part of the land from the time of judgment recovered. To remedy this defect in the law, the Statute of Merton, 20 Hen. 3, c. 1, (Alex. Brit. St.,) was passed, which gave the demandant damages equal to the value of her dower from the time of her husband’s death, or, by construction, from the time of dqmand made, Co. Litt., 32, b; but that statute, by its express terms, only applies where the husband died seised. In those cases, therefore, where the husband does not die seized, as where the land is alienated in his lifetime, there can be no recovery of damages at law. 1 Roper, H. & W., 440 ; Sellman vs. Bowen, 8 Gill & John., 50. But in equity, the widow may have a decree for an account of rents and profits against the alienee, or those claiming under him, which accrue after dower demanded ; and she may even proceed in equity for such rents and profits after she has recovered her dower at law. Sellman vs. Bowen, 8 Gill & John., 50; Kiddall vs. Trimble, 1 Md. Ch. Dec., 143, and same case affirmed in 8 Gill, 207 ; Darnell and Wife vs. Hill, 12 G. & J., 388. To whatever damages therefore the demandant may be entitled, she can only recover them as an equitable demand.

It follows from what has been said in regard to these cases, that the pro forma judgments entered by the Court below, whereby it was adjudged that the demandant recover seisin of one-third part of the lands and tenements mentioned in the declarations, to be assigned by metes and bounds, as and for her dower, must, under the agreement of submission, be reversed ; and the record will be remanded that the proper judgments be entered. (See Humphrey vs. Phinney, 2 John., 484.) But inasmuch as no judgments at law can be entered to embrace and give force to all the principles and rights determined in the foregoing opinion, it may be necessary, if the parties do not think- proper to adjust- all matters and conclusions of fact by agreement, that an amicable bill in equity be filed, so that a decree maybe entered, and accounts taken, that will embrace the whole case, and thus put an end to controversy, in accordance with the spirit and intent of the agreement'under which theyM'o forma judgments were entered, and this Court asked to review them.

(Decided December 6th, 1877.)

Judgments reversed, and record remanded.