Davis v. Townsend

• Decision Date: 19 February 1890
• Citation: 10 S.E. 837,32 S.C. 112
• Parties: Davis v. Townsend.
• Court: South Carolina Supreme Court

10 S.E. 837

(32 S.C. 112)

Davis

v.Townsend.

Supreme Court of South Carolina.

Feb. 19, 1890.

Trusts—Estoppel —Married Women—Dower— Merger.

1. The purchaser at an execution sale of land conveyed it to a trustee for the separate use of the judgment debtor's wife, and on such further trusts and limitations as might be declared by the trustee. Held that, as it was necessary for the" legal title to remain in the trustee to declare the further trusts and limitations, the statute of uses did not execute the use in the wife, and her inchoate dower right was not merged in the fee.

2. The fact that a mortgage given by the trustee was foreclosed in the judgment debtor's lifetime, and that his wife was made a party to the proceedings, does not estop her from asserting her claim as dowress after the debtor's death.

8. Nor is the wife estopped from asserting her dower right by covenants in the deed to the trustee, or by a general warranty in the mortgage given by the trustee, to neither of which conveyances was she a party.

4. The wife's possession of the land under the terms of the trust-deed is not an acceptance of an estate inconsistent with her inchoate dower right, since the purchaser at the execution sale took only the judgment debtor's interest in the land, and could convey nothing more to the trustee.

Appeal from common pleas circuit court of Aiken county; Witherspoon, Judge.

Action by Alphea Davis against H. F. Townsend to determine plaintiff's right to dower in certain land. Judgment for plaintiff, and defendant appeals.

W. H. Townsend, for appellant. Croft & Chaffee, for respondent.

McIver, J. This was a proceeding originally instituted in the court of probate, and carried thence by appeal to the court of common pleas, whereby the demandant claimed dower in a tract of land in the possession of, and claimed by, the defendant. The facts necessary for a proper understanding of the questions raised by this appeal are substantially as follows: James L. Davis, the husband of demandant, was seised during coverture of the said tract of land, and the same was sold by the sheriff on the 4th May, 1868, under a judgment recovered against him, and bid off by the judgment creditors, Adams, Frost & Co., who subsequently transferred their bid to John J. Maher, to whom the sheriff made titles on the 28th December, 1868. On the same day, Maher conveyed the land to S. S. Evans as trustee for plaintiff, in consideration of the sum of $1,519.06 secured to him by the bond and mortgage on said land of said Evans. This bond and mortgage were subsequently transferred to the defendant, who instituted pro ceedings for foreclosure, to which the plaintiff was made a party, though no money judgment was asked against her, and no mention was made in the complaint as to her inchoate right of dower. Under these proceedings, the land was sold in October, 1886, and bought by defendant. Some time after this sale, demandant's husband died, and soon thereafter this proceeding for dower was commenced. It seems that, even after the sale by the sheriff, Davis and his wife remained in possession of the land, though there is testimony tending to show that, after the deed to Evans as trustee was made, Davis held possession as the agent of his wife, and that upon one occasion at least the wife gave a lien on the crops for advances. The conveyances from Maher to the trustee, Evans, contained apt and proper terms to vest in him the fee; and the trusts declared were " to hold the same for her [demandant's] sole and separate use, and otherwise, upon trusts and limitations hereafter to be by him declared." This conveyance also contained the five covenants usually inserted by English conveyances in a conveyance in fee-simple, all of which except perhaps the last, the covenant for further assurances, are really embraced in the general warranty in the form of conveyance prescribed by our act of 1795. Jeter v. Glenn, 9 Rich. Law, 374. The mortgage from Evans, trustee, to Maher, to secure the payment of the purchase money, also contained the usual general warranty. Upon this state of facts, the circuit judge held that demand-ant was entitled to dower, and rendered judgment affirming the decree of the judge of probate to that effect. From this judgment defendant appeals upon the several grounds elaborately set out in...