Maccubbin v. Cromwell , 2 H. & G. 443 ( 1828 )

Martin, J.

delivered the opinion of the Court. Zachariah Maccubbin on the 15th of November 1809, executed a deed to David Whelan and John Cromwell, for all his real and per-' sonal estate. At that time he was indebted to Henry W. Dorsey in a large sum of money. After the death of Maccubbin, a bill was filed by Dorsey, to set aside this deed as fraudulent, and a decree was obtained vacating the deed, and directing the lands to be sold for the payment of Maccubbin’s debts. The lands were sold under the decree, and the proceeds brought into the court of chancery, and a surplus remained after the debts were paid. The widow of Maccubbin was entitled to dower in the lands sold.

It is alleged by Cromwell that the widow, on the 14th of .June 1810, made an assignment of her dower to him and Whelan, in consideration of a bond passed by them to her, to pay $400 per annum, during her life. That she afterwards intermarried with Joseph L. Fletcher, and died on the 14th of December 1814. That several payments were made on the bond before the 13th of June 1814, when it was assigned to Thomas Armstrong, who obtained a judgment at law uporx it. That the lands were sold by the trustee clear of dower, Cromwell and Whelan having consented to it, and that the heirs of Maccubbin were benefited by the contract made with the widow, the sum to be paid her being considerably less than she would have been entitled to receive in lieu of her dower.

Cromwell claims to stand in the place of the widow in equity, and to be reimbursed the money he has actually paid, and that for which he is answerable under the judgment. It must be admitted, if he, as assignee of the widow, would be en~ titled to receive the whole sum that ought to be allotted to her, his equity is not lessened, by claiming only a part of it.

Three objections have been relied on in the argument to reverse this decree. The first is, that the court of chancery had no jurisdiction in the case. In examining this objection, it is proper to remark, that the question is not, whether a, court of chancery has jurisdiction to assign dower, where no impediment or obstacle appears to the recovery at law; but whether a widow has a right to ask, ip a court of equity, pari; of a fund in lieu of her dower, where that fund has been produced by the sale of her husband’s lands which were subject to her dower, and increased by being sold, clear of that incumbrance, with her approbation and consent?

Why should she not have this relief upon general principles of equity, without invoking the aid of authorities, or the practice of chancery to support it? vShe has relinquished her right of dower in the lands of her husband, to which she was entitled by law, and being freed from that incumbrance, the proceeds of the sale have been greatly increased. The heirs were bound by her claim; and whether it is satisfied out of the lands, or the proceeds of those lands, seems to be a matter of no import to them. If the fund was increased by the relinquishment of dower, their portion was not diminished; and indeed, it cannot be overlooked, that one great object in selling lands in this way, is to produce a better price, and therebv benefit the estate. The case of Herbert, and others, v. Wier and others, reported in 7 Cranch 370, although not exactly similar to the one before us, bears, in many of its features, a strong resemblance to it. In that case there was a decree that the whole estate of Lewis Hipkins, deceased, should be sold, and the money brought into court. The estate was sold under the decree, and a memorandum was made on the deed of conveyance, that it was subject to dower. The purchaser conveyed to the trustees of Fendall, for whom he bought the land, and those trustees sold and conveyed to Deane the defendant. In the deed to Deane was a covenant to indemnify him against the claim of dower. 'The widow of Hipkins, and her second husband Wier, applied to the court of chancery, praying that dower maybe assigned to her in the lands of her first husband, or that a just equivalent in money may be decreed her in lieu thereof. Deane consented, if the court would decree dower in the lands, he would give an equivalent in money in lieu thereof. There, as in this case, it was contended, a court of chancery had no jurisdiction, and could not grant relief. To which it was answered, the land being sold subject to dower, and the deed to Deane having a covenant to indemnify him against dower, a court of chancery would call the parties before it, and decree money in lieu of land, when the purchaser; and widow consented to it. That if the purchaser paid a sum. of money in lieu of dower, it placed him in the same situation as if he had purchased clear of dower. The court determined that the widow should receive, not a sum in gross in lieu of her dower, but that one third of the purchase money should be set apart, and that she should receive the interest on it, during her life This is a strong authority, so far as it relates to the jurisdiction of the court. In Tabell v Tabell and others, 1 Johns. Ch. Rep. 45, William Tabell and wife entered into a mortgage of his property to Thomas Gardner, to secure the payment of a debt. The mortgaged premises were sold under a decree, the widow appearing and submitting, the debt was paid, and a surplus of the purchase money brought into court. The chancellor decreed, the widow was entitled to the use of one third of the purchase money, after satisfying the mortgaged debt, as her equitable dower, the same arising out of the real estate, in which she would have been entitled at law, subject to the mortgage. Titus v Neilson and others, 5 Johns. Ch. Rep. 452. From an examination of the records in. the court of chancery, it appears that court has uniformly assumed jurisdiction in cases like the present, and it is thought, not a case is to be found where relief has been refused to the widow, when the land had been sold clear of dower, with her consent. A sum in gross is sometimes allowed; but whether that practice is in analogy to the act of 1799, or upon general principles of equity, cannot affect this ease. The real estate of Peter Cassenave was decreed to be sold for the payment of his debts. The trustee, without proper authority, sold the lands clear of dower. The widow, by a petition to the chancellor, agreed to relinquish her right of dower, if the chancellor would decree her a sum out of the purchase money in lieu thereof. This petition was granted, and a decree passed in 1801, allowing her a sum in gross. The chancellor observes in his decree, this is the first case, in his recollection, where it was left to him to ascertain the proportion a widow is entitled to, on account of her right of dower, of the money arising from the sale of the whole interest in the lands of which her husband'died seized in fee, having a legal title. Whether the widow is to be allowed a sum in gross, or receive interest on. one third of the purchase money, daring her life, cannot affect the equity of this decree, because the sum decreed to be paid, is less than she would be entitled to receive in either way.

The second objection is, if the court oF chancery had jurisdiction, there is no evidence in the cause to support the claim.

If Cromwell is prevented by strict and rigid rules of law irom obtaining relief in the manner directed by the decree, it must be admitted to be a cause of regret, for so far as this record speaks, it appears justice has been administered to all the parties concerned. The conduct of Cromwell and Whelan, proves they were actuated by the purest motives. Although the deed was made 'absolute to them, they have considered themselves only as trustees for the heirs of the grantor, and the contract made with the widow is certainly beneficial to those heirs. They require nothing for the trouble this trust must have caused them, but only to be reimbursed and saved harmless for money laid out for the advantage of the estate.

If we are to require in this case the same evidence that would be necessary in a court of law, or upon an original bill in chancery, the decree must be reversed, for there is scarcely a fact, on which the petitioner relies to sustain his claim, proved by legal evidence. If the assignment had been denied\ its execution ought to have been proved by the witnesses to it, and a short copy of a judgment could not supersede the necessity oi showing a full copy of the record. But is the same full proof required under the circumstances of this case? The funds were in the court of chancery, and Cromwell prayed to have a part of those funds applied to the discharge of his claim. It has long been the uniform practice in the court of chancery of this state, in applications of this kind, to receive the papers on which the claim is founded, -as prima facie evidence, and the chancellor will act on them accordingly, unless the testimony is put in issue, and full proof is required by the opposite party. This practice is -founded in convenience, and to save expense to suitors in that court, and ought not to be disregarded by us* Who is to be injured by it? It does not deprive the party of his right to have full proof, if he thinks proper to demand it He may file exceptions to the report of 'the auditor3 and even if the report bad been confirmed, upon petition, the chancellor would direct it to be opened, and strict legal proof would be required. The instrument of writing offered as evidence of the assignment, is acknowledged before two justices of the peace, and the second report of the trustee is verified on oath.

It has been contended this question is not now open for consideration; and although it might be proper to sanction this practice in chancery, so fraught with advantage and convenience to suitors in that court, if this was the first time it had been presented to us, that it is now too late, for it has been settled, by decisions of this court, that upon an appeal, the whole audit may be examined, and if the chancellor has acted upon insufficient testimony, the decree must be reversed. It is- not perceived that these decisions can affect the case now before us. Admit, that upon an appeal the whole audit may be examined, it surely will not be said the decree must be reversed, unless there has been error in tbe proceedings. If the chancellor is justified by long usage and practice in his court, to act on evidence prima facie, which is there considered as not to require full proof, unless it is demanded by the parties interested, it is difficult to be imagined, how it can be imputed to him as eiv ror. If it is not error in chancery it cannot be error in this court, and if it was correct there, it must be sanctioned by this court. No decision, we think, can be found, to impugn this doctrine. It has been determined, as before observed, that an audit may be examined in this court, although no exceptions were filed in chancery to it; and if the chancellor has acted upon improper testimony, or mistaken the principles of Jaw, the audit would he reformed, or the decree be reversed. But that still leaves open the question, what is proper testimony? According to the rule in chancery, the testimony afforded by this record is proper and deemed sufficient, unless it is objected to. If exceptions are filed, the testimony is put in issue, and the chancellor ought to require full proof. If he then proceeds without strict legal evidence, it would be error, and could be taken advantage of in this court. Such was the decision in the case of Pannell & Smith vs. The Farmers Bank of Maryland. All the facts, on which that case rested, do not appear either in the record, or the case as reported in Harris & Johnson. The bill was filed by the Farmers Bank of Maryland, Robert H. Goldsborough and Alexander C. Magruder, against Mrs. Hanson, as administratrix of Alexander Hanson. Goldsborough and Magruder, as the mortgagees of an unrecorded mortgage, claimed a preference over the other creditors in the funds arising from the mortgaged premises. When the funds were about to be distributed, this preference was resisted by the other creditors of Hanson, and Pannell and Smith exhibited, as the evidence of their debts, promissory notes, with affidavits, that no part had been received* The chancellor directed two audits to be made; the one applying all the proceeds to the complainants’ debt; the other applying them equally among the creditors. To the second audit, the complainants filed several exceptions, one of which was, that the debts were not proved by legal evidence. This exception put the testimony in issuej and having done so, the chancellor ought to have required strict legal proof before he allowed any part of those claims. The exception, however, so far as it related to the sufficiency of proof, was disregarded, and this court was certainly correct in deciding, under the circumstances of the case, there was no legal evidence of the appellant’s debts. Not because the chancellor might not have allowed them upon the evidence of the notes with the probates on them, if there had been no objection to that testimony; but because the testimony was put in issue, by excepting to it, and that made it necessary to prove the execution of the notes.

It has been said, if the widow was entitled to a sum of money in lieu of her dower, it ought to have been paid out of the money arising from the first sale of the lands, because those lands alone were sold clear of dower. The sum allowed Cromwell by the decree is $1,850, without interest. The proceeds of the first sale are $24,763. To set apart one third of that sum, the widow to receive the interest on it during her life, would be considerably more than the sum allowed to Cromwell. After paying the debts of Maccubbin, there remained a balance from the first sale of '$16,219 42, which was ordered to be paid over to the heirs. If then the heirs received'the money, that ought to have been pa;d to the widow, upon every principle of equity she would be entitled to have her portion out of the funds afterwards brought into chancery from the sale of the residue of the lands.

We think the third objection relied on — the want of proper parties — cannot avail the appellants; and the decree is affirmed, with costs.

decree affirmed.