Corcorren v. Sharum

Hart, J.,

(after stating the facts). Cor corren made an executory contract with Sharum for the purchase of the land and executed three notes therefor for the sum of $3,900. He paid one of these notes which was for $900. He transferred his claim to the land to Lizzie Burel and A. P. Hager for the sum of $1,000, and they agreed to complete his contract for the purchase of the land. Upon default being made in the payment of the notes, the vendor brought this suit to recover judgment for the balance of the purchase money and to foreclose his vendor’s lien on the land. Corcorren executed a quitclaim deed to Lizzie Burel and A. P. Hager, but his wife did not relinquish her dower in said deed. She claims that she has an inchoate right of dower in any surplus after discharging the vendor’s lien and that is the sole issue raised by this appeal.

Corcorren became by his purchase the equitable owner of the land, and his executory contract for the purchase of the land was assignable in equity. 5 C. J. 852. Then, too, his contract for the purchase of the land was assignable under section 509 of Kirby’s Digest, providing that all bonds, bills, notes, agreements, and contracts in writing for the payment of money or property, or for both money and property, shall be assignable. See C. J. 852, and the following cases where it has been held that executory contracts for the sale and purchase of land are assignable in equity and under statutes similar to our statute just referred to. Skinner v. Bedell, 32 Ala. 44; Brown v. Chambers, 12 Ala. 697; Russell v. Petree, 10 B. Mon. (Ky.) 184; Melton v. Smith, 65 Mo. 315, and Cowart v. Singletary (Ga), 47 L. R. A. (N. S.) 621, Ann. Cas. 1915 A., p. 1116.

The obvious intention, of section 509 of Kirby’s Digest was to vest the entire interest in the assignee, and this act would be defeated if there was an interest existing in the wife which could not be transferred. The same reason would apply if the contract is assignable in equity. So it has been held that a widow is not entitled to dower in land purchased by her husband and sold during his lifetime to enforce a vendor’s lien thereon for unpaid purchase money, although she is not a party to the action to enforce the lien. Sarver v. Clarkson, 156 Ind. 316, 59 N. E. 933; Schaeffer v. Purviance, 160 Ind. 63, 66 N. E. 54; Bisland v. Hewett, 11 Sm. & M. (Miss.) 164; Wilson v. Davisson, 2 Rob. (Va.) 384; Robinson v. Shackett, 29 Gratt. 99; Miller v. Stump, 3 Gill. 304; Hamilton v. Hughes, 6 J. J. Marsh (Ky.) 581; Heed and Wife v. Ford (Ky.), 16 B. Mon. 114, and Scribner on Dower (2 Ed.), vol. 1, secs. 45-47, and cases cited. This view is in accord with the decisions of this court on the question.

In Thorn v. Ingram, 25 Ark. 52, the court held that a widow has no right of dower in lands purchased and occupied by her husband for which a deed of conveyance was executed and delivered in the lifetime of the husband, where the purchase money remains unpaid, as against the equitable lien of the vendor. In discussing the question the court said:

“In a case, upon a point similar to the one now before us, the Court of Appeals of Virginia, says: ‘A wife’s right of dower is an emanation from the ownership of her husband and subject to all its qualifications though not to his alienations or incumbrances during the coverture, without her consent, declared in the mode prescribed by law. Her right is dependent upon his, as existing at the inception of the coverture, or as acquired by him during its continuance. If he mortgage his land before marriage, her claim to dower is subordinate to the mortgage, and, if that be foreclosed, is completely divested. So if she unite with the requisite solemnity in his mortgage, made after the marriage, the effect of a foreclosure is the same. If, during the coverture, he purchase mortgaged land, her title, like his, is subject to the incumbrance, and foreclosure of it destroys both. The result is the same where an incumbrance is created by the very act of purchasing; for if the purchase money be unpaid, and not secured, an equitable mortgage is embodied in the transaction itself, and if that be foreclosed by a sale of the property, under the decree of a court of equity, the wife’s right of dower is completely extinguished.’ Wilson v. Davisson, 2 Robinson’s Va. Rep. 405. See also Kirby & Dalton, 1 Dev. 195; Elliott v. Welch, 2 Bland 242; Warner v. Van. Alstyne, 3 Paige 513; Nazareth, etc., Inst. v. Lowe, 1 B. Mon. 257. ’ ’

Again in Langley v. Langley, 45 Ark. 392, the husband during his lifetime had made an executory contract for the purchase of lands and had received a bond for title thereto and the land was payable in installments. After he had paid part of the money he became affected with paralysis and transferred and assigned all his right and interest in the bond for title to his son. After the husband’s death his widow claimed dower in the land, and that the deed from her husband to his son was in fraud of her dower rights. The court held that she must defer her proceedings for dower until the invalidity of the deed to the son had been established, and that until that was done she could not successfully defend in an action of ejectment against the holder of the legal title.

In the case at bar the wife does not claim that the deed from her husband to Lizzie Burel and A. P. Hager was procured by fraud. The effect of the holding in Langley v. Langley, supra, was that the widow was not entitled to dower as against the grantee of the husband, and this holding is in accordance with the general rule that if the husband during his lifetime disposes of any equitable estate he may have in the lands, the dower right qf his wife therein will be defeated. This holding is not in conflict with sections 2691 and 2692 of Kirby’s Digest, but is in conformity to them.

Section 2691 provides, in effect, that where a husband shall purchase land during coverture and shall mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands as against the mortgagee.

Section 2692 provides that when the mortgagee, after the death of the husband of such widow, shall cause the land to be sold under the mortgage and if any surplus shall remain, the widow shall be entitled to dower in the surplus.

A vendor’s lien is treated in equity as a mortgage and enforced as such. Priddy & Chambers v. Smith, 106 Ark. 79, and cases cited. Under the statute if Corcorren had died without having transferred his equitable interest in the land, his widow would have been entitled to dower in any surplus remaining after discharging the vendor’s lien. Having parted with his. equitable interest prior to his death by conveying the land to Lizzie Burel and A. P. Hager, he has no beneficial interest in the land, and at his death his widow would not be entitled to dower therein.

It follows that the decision of the court below was correct and the decree will be affirmed.