Waller v. Mardus

Scott, Judge,

delivered the opinion of the court.

This is a suit, by purchasers under an execution at a sheriff’s sale, against a former widow and her husband, to have her dower in her first husband’s estate assigned to them. N. H. Mardus was seized of lands, and died, leaving Parmelia Mardus his widow, who was- entitled to dower in his estate, but which was never assigned to her. She, Parmelia, intermarried with the defendant Solomon Stickell, who during the marriage contracted debts for which he was sued, and, *27 judgment having been recovered, afterwards executions issuing to Monroe county, Mrs. Stickell’s dower interest in her former husband’s estate was sold, and the plaintiffs became the purchasers. On these facts judgment was rendered against the plaintiffs.

The wife being seized of a life estate in her own right, her interest may be sold for debts contracted by her husband during the coverture for so long a tirpe as the marriage may subsist. But it is well settled that until dower is assigned the widow has no estate in the,land for which an ejectment may be maintained, or which can be sold under execution. Her interest, until dower is assigned, is a mere chose in action. Whether she could by a voluntary assignment of this chose in action enable her assignee to sue in equity to have the dower assigned is not a question involved in this case. By the statute in force at the time of the first husband’s death, and which still is the law, a creditor of the widow or of her husband may have her dower assigned. But the plaintiffs can not be regarded as creditors within the meaning of the act. The law will not suffer the widow’s dower to be assigned in a way which in many 'cases may prove detrimental to her. If the dower interest is permitted to be sold under execution before it is assigned and the purchaser shall be compelled to go to law in order to have it allotted to him, the uncertainty whether it would ever be assigned would inevitably cause a diminution of price, which would not occur if the dower was assigned before the sale took place. To sell the right of dower at public auction and then have it assigned, the purchaser taking the risk whether it will be assigned or not, would generally cause a sacrifice of it. The creditor should have the dower actually assigned before it is sold.

The plaintiffs, who were purchasers at the sheriff’s sale, can not be regarded as assignees of the interest and entitled therefore to go into equity to have the dower assigned to them. Besides the objection above stated to a sale of dower before it is assigned, the interest of the widow being such *28 that it could not be sold under execution, it is impossible that the plaintiffs could have acquired any right under the sheriff’s deed, as it was merely void. Although the plaintiffs may have given its value for the dower interest in this case, yet, as our experience teaches us that such a mode of disposing of dower must produce sacrifices, the rule must be uniform, and it can not be made to depend upon the amount realized by the sale. The purchasers can not be regarded as creditors and be substituted in place of the plaintiffs in the execution, as the right to substitution, which is founded on equitable principles, can not be claimed when its allowance would contravene the policy of the law. There should be legislation on this subject such as would protect innocent purchasers at sheriff’s and other public sales from loss when the title to the property which they have bought fails, or there is a defect in the conveyance of the sheriff or other agent, which renders it void. In cases free from fraud and from all design to overreach, there would be justice in permitting the innocent purchaser to be substituted to the amount of his bid in the place of the execution or other creditor.

There is nothing in the record which shows that the widow was entitled to quarantine in the land, for which, under our statute, she would have been entitled to maintain an ejectment.

The judgment is affirmed;

the other judges concurring.