McArthur v. Porter , 1 Ohio 99 ( 1823 )

By the Court :

The view taken of this cause by a majority of the judges, renders it unnecessary to decide upon the validity of the sheriff's sale — the existence of the equitable lien relied upon — or the power of the territorial courts, as courts of law merely, to enforce such equitable lien. Admitting every one of these points to be decided as the complainant contends for, still he has presented no case that entitles him to the relief sought.

George Porter, the deceased, acquired, by his patent, an estate of inheritance in the lands in question. The defendant,- Sarah, by her marriage with George Porter, acquired the right of being endowed in these lands, if she survived her husband. Upon his death, *this right invested her with a complete, perfect, legal estate. If an equitable lien existod upon the lands for purchase money, it belonged to Talliaferro, and to no one else. As to all the world beside, her right was clear and unquestionable at-law. At the sheriff’s sale the complainant did not purchase any right or interest that belonged to Talliaferro. He purchased the estate of which George Porter died seized, and nothing more. George Porter held this estate subject to his wife’s'claim for dower. In his lifetime, he could not, by any act of his own, discharge the-estate of this claim. The sheriff could sell nothing more than what-George Porter himself could have sold. The land, therefore, was sold by the sheriff and purchased by the complainant subject to this charge of dower. The proseeutiou of this bill, and the arguments in support of it, seem to involve this admission. If the complainant acquired the widow’s dower by the purchase at sheriff’s sale, it would have availed him as a defense to the action at law. This suit would not be necessary. Where nothing but a legal right was sold, how could he acquire an interest to be set up and established in equity ? The land was sold as assets in thm hands of the administrator, for the payment of the debt due of the-purchase money. It sold for a sum sufficient, and the proceeds were applied in discharge of that debt. By this payment, the lien for purchase money, whatever its character or effect might be, became extinct. It never passed from Talliaferro, but perished in*his hands.

Had the estate of Porter, which was assets in the hands of his administrator, proved insufficient to pay the debt, it would them have been necessary for Talliaferro to have enforced his lien against the widow’s dower estate. This could only be done by making the widow a party. Could she have been legally divested of the freehold vested in her by the death of her husband, upon the mere suggestion of an equitable lien, of which she might bo> totally ignorant, without giving her a day in court to defend her right or redeem her land ? Such a principle would be most arbitrary and unjust; it is only by the application of such a principle •that the complainant’s claim can be sustained.

It may be asked how the territorial courts, having no chancery jurisdiction, could have proceeded against the widow? It may be answered, that if they could not proceed at all, the consequence would be rather that the widow should hold her estate than that she should lose it, without hearing or judgment. But if everything that was assets in the hands of the administrator had been ^exhausted and the debt not satisfied, a proper process might have been devised to subject the widow’s dower, determining, in the first place, that it was liable, and in the next place, •directing how it should be sold. A scire facias setting forth, the whole matter, and calling upon the widow to show cause why her dower estate should not be subjected, might have been a proper course. Such a proceeding would have carried with it some ■semblance of justice, which is not the character of the doctrine ■ contended for by the complainant.

Adopt this doctrine, and what is the consequence? The equitable lien is a secret circumstance known only to the creditor and debtor — other persons'have no opportunity to obtain a knowl•edge of it. It does not appear upon the records of the court, or in the registry of deeds, nor in the terms of sale. The bidders never hear of it. They bid for the estate, subject to the dower incumbrance, and offer a price accordingly. If it be afterward discovered that the judgment creditor held a secret equitable lien, the purchaser may claim it as his own, and call upon a court of -equity to set it up for him, in destruction of the widow’s right— thus acquiring, through the aid of a court of chancery, a valuable interest in the estate, which was not contemplated at the time of purchase, and for which he paid not one cent of consideration.

Such, in the opinion of the court, is the claim of the complainant. He seeks — without the payment of a cent of money, or the performance of a single beneficial act to the estate by way of consideration, under pretense of an equitable lien, which, if it ever ■existed, he never owned, and which was long since extinguished— to wrest from the widow a valuable legal estate, vested in her by the death of her husband, in absolute right, without hor ever being made a party to the proceedings that thus annihilates her" rights. An attempt of this kind ought not to receive the countenance, much less the aid of a court of chancery.

It is the opinion of a majority of the court, that as the complainant purchased the estate in question, subject to the widow’s-dower, her recovery leaves him in full possession of all that ho purchased: As he has lost nothing, he can claim nothing of Talliaferro or of others. His bill must be dismissed, with costs.