Torrence v. Carbry , 27 Miss. 697 ( 1854 )

Mr. Justice Fisher

delivered the opinion of the court.

This was an application to the probate court of the county of Tallahatchie, by the appellee, as the widow of Thomas Carbry, deceased, for the allotment of dower in the lands of her deceased husband, situate in said county.

The application was resisted by the appellants, as administrators of the estate of the intestate, on the ground that he did not have during the coverture, or at the time of his death, either a complete legal or equitable title to said land, but that the title thereto was still outstanding in the government of the United States, to whom the intestate was indebted, at the time of his death, in a large sum of money due on account of the purchase of said land, and which sum the appellants aver they have paid out of the personal estate of the intestate.

The evidence introduced on the part of the appellee establishes, beyond all controversy, that the husband was, for a year or more before his death, in the full possession .and enjoyment of said land. Admitting that he held possession under the agreement for a title as set up in the appellants’ answer, yet the mere fact of possession as against the husband’s representatives, and all others who do not claim by superior title, is such a seizin as will entitle the widow to dower. Randolph v. Doss and Wife, 3 How. 214; 5 Cow. 301. When the government shall attempt to assert their title, or to set it up in opposition to the claim for dower, it will be time enough to examine its merits. If it proves any thing at present, it is, that the administrators have no interest whatever in the controversy. They do not even pretend that it will ever be necessary to resort to the land for the purpose of paying the debt to the United States, for this, according to their own showing, has been paid. It is true, they say, that it was paid out of the personal estate, and it being insolvent, they claim to be substituted, through the action of the probate court, to the title of the government, and to use it for the purpose of defeating the appellee’s claim to dower. It is not necessary, in the present controversy, for us to decide on the question of subrogation, as presented by the answer, but only to state, that without regard to the merits of the, question, it is one of which the probate court can take no jurisdiction. And we may remark in general terms, that until the jurisdiction shall have been exercised by the proper court, and the appellants adjudged to have the rights of the United States in regard to said land, that they have no claim or right which they can interpose as a defence to the petition. The mere fact of paying the debt due to the government out of the personal estate, would give the appellants no right whatever to the land. The government was in law a preferred creditor, and could insist on payment, as it was made, out of the personal estate.

But it is not, our intention to discuss this question, as it is not properly presented by the record. The statute, in express terms, gives the widow dower in lands purchased from the United States, whether the payment therefor has been completed or not. This was practically a purchase by Carbry’s vendor from the government. It is true, it was known as Indian orphan land, and certain Indians will be entitled to the money; yet the government acted as the trustee in making the sale, in collecting the money, and in conveying the title. These several acts make it a sale by the government, and a purchase from, the government on credit, within the meaning of the statute. Revised Code, p. 232, § 6.

We are therefore of opinion that there is no error in the decree of the court below.

Decree affirmed.