Chapman v. Chapman's Trustee

Harrison, J.,

delivered the opinion of the court.

It appears from the record that in 1870 Thomas W. Chap *538 man, then unmarried, made a verbal contract with Thomas A. Chapman, by which he sold the latter a tract of 560 acres of land. The purchaser paid in cash $100.00, and was immediately put in possession.

Thomas W. Chapman, the vendor, married in 1878, without having made his vendee a deed. After his marriage he executed and delivered to Thomas A. Chapman a deed conveying him this 560 acres of land. In this conveyance his wife refused to unite. Thomas W. Chapman, the vendor having died, since making the deed, his widow now demands dower in the land conveyed to Thomas A. Chapman.

Irrespective of statute, a widow has no dower in lands sold by her husband prior to his marriage, although the husband may have died without conveying title ; for, while he has the legal title, yet he is not beneficially seised during the coverture, as against the vendee. 2 Minor’s Inst. 147; Waller v. Waller, 33 Gratt. 83 ; Lomax, Vol. I., (ed. 1839), p. 106, ch. IV., sec. 3.

It was contended, however, that Thomas A. Chapman was in default in the payment of the balance of the purchase money, and that this gave his vendor a right of action to recover the land; and therefore that Mrs. Chapman is entitled to dower therein by virtue of sec. 2268 of the Code, which provides that “ When a husband, or any one to his use, shall have been entitled to a right of entry, or action in any land, and his widow would have been entitled to dower out of the same if the husband or such other had recovered possession thereof, she shall be entitled to such dower although there shall have been no such recovery of possession.”

This proposition is based upon an erroneous assumption of facts. There is not one word in the record tending to show that Thomas A. Chapman was in default in the payment of his purchase money. If anything is to be inferred from the facts appearing in the record, the contrary is true. His vendor *539 made him a deed of conveyance, from which we must presume that he had fully complied with all the terms of his contract. The fact that he did not get his deed until 1878 is no evidence of default on his part. The terms of the contract, as to time or price, do not appear. The balance of his purchase money, if any, may not have been due till then, or may have been paid long before that time, and his vendor been in default in not making the deed. Further, if the purchaser had been in default, that would not have given his vendor the right to re-enter and take possession, until he had reasonable notice, and an opportunity to redeem his default.

Section 2268 has no application to a case like this. It is clear that the claim of the appellant to dower in this land is unfounded, and the Circuit Court having so held, its decree .must be affirmed.

Affirmed.