Hart v. Logan
| Decision Date | 31 October 1871 |
| Citation | 49 Mo. 47 |
| Parties | JAMES R. HART, Plaintiff in Error, v. SAMUEL LOGAN, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to Sixth District Court.
Dryden & Dryden, for plaintiff in error.
In cases arising under the execution laws this court has held that a vendor who has received part of the purchase-money is a trustee for the vendee. (Brant v. Robinson, 16 Mo. 149.) As to the general doctrine, see Atk. Titles, § 3; Smiley v. Wright, 2 Ohio, 512; McDonald v. Ater, 1 Ohio St. 296; 6 Dana, Ky., 204. As between the widow and the purchaser from the husband's administrator, she is doubtless liable to contribute to the removal of the encumbrance on the title-- i. e., in the case at bar, the unpaid $1,000 (Sto. Eq., §§ 477-8, 485, 487); but the obligation to contribute is not inconsistent with her right to dower.
The object of sections 2-3 of the dower law of 1855 (R. C. 1855, pp. 668-9) was not to give dower in cases not otherwise provided for, but to define with greater certainty than had been done before, the rights of parties in classes provided for in section 1, p. 668, R. C. 1855.
Redd & Anderson, for defendant in error.
In equity the use is raised in favor of the purchaser when the purchase-money is fully paid, and not before. .) The dower right of the wife in the inchoate equity of the husband, arising out of part payment of the purchase-money, was provided for under certain limitations by the act of November, 1855. (R. C. 1855, p. 668, §§ 2-3.) Prior to this law she had no such right in case of part payment. And it is hardly necessary to add that the law of 1855 can have no application here, as the husband died many years before.
This suit was brought by the plaintiff, who is the widow of Morgan Hart, against the defendant for her dower in certain real estate in the city of Palmyra, of which she alleges she is deforced by the defendant. The petition avers that Morgan Hart, the husband, in his lifetime bought the property in question from Reed & Perrin, the owners, on credit, and gave his five several promissory notes for the purchase-money, the vendors giving him a bond for the conveyance of the title on payment of the notes, and putting him in possession; that he afterward paid three of the five notes, and then died in possession; that the remaining two notes were paid after his death, it not being averred by whom paid. The answer admits the contract of purchase as set out in the petition, and admits, further, that Hart paid three of the notes ($1,500) of the purchase money, which was $2,500, and died in possession, and also avers that Hart's personal estate being insufficient to pay his debts, his administrator proceeded under the statute to procure an order of sale of the real estate from the County Court to pay debts, and accordingly procured the order and sold the property at public sale to one Pryor, under whom defendant derives title; that upon the payment of the purchase-money, the administrator executed a deed to Pryor, conveying all the interest of Hart in the real estate, and upon Pryor and one Williams paying to Reed & Perrin the balance of the purchase-money due on Hart's contract, they executed to Pryor a deed conveying the premises in fee simple. The answer alleged that therefore Morgan Hart, in his lifetime, was never seized of an estate of inheritance, and that plaintiff was not entitled to dower. To the matter set up in the answer by way of defense the plaintiff demurred, and the court overruled the demurrer; and, the plaintiff refusing to file a replication, judgment was given on the demurrer.
The whole question, therefore, is the sufficiency of the answer as a defense to the plaintiff's claim for dower. The answer admits the purchase of the property in which dower is sought, by Hart, the husband, under a valid executory contract, and that he had paid three-fifths of the purchase-money, and that at the time of his death, and prior thereto, he was in possession. It further appears that after the death of Hart his administrator sold the property under the statute for the payment of debts, and that Pryor, under whom the defendants claim, bought at that sale and went into possession under his purchase. Whether the administrator paid any of the remaining purchase-money, or how much was due and paid by Pryor, or under what circumstances and by what authority the vendors of Hart conveyed the legal title to Pryor, does not definitely appear.
The purchase by Hart and his death both took place while the code of 1845 was in operation, and consequently the question in the case is to be governed by its provisions. It is insisted by...
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Blevins v. Smith
...has taken a title bond for land, and paid part of the purchase money, his wife has an inchoate right of dower in the land thus held. Hart v. Logan, 49 Mo. 47; yet, in such case, if the husband's interest be sold under a general execution the inchoate right of dower is barred (Worsham v. Cal......
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Block v. Morrison
...land for the vendee, and that the vendee has an interest in the land which may be sold under execution. Papin v. Massey, 27 Mo. 445; Hart v. Logan, 49 Mo. 47; Morgan Bouse, 53 Mo. 219. In some of these cases the vendee had been put in possession, and in others the whole or a part of the pur......
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Holt v. Hanley
... ... her proportion of amount paid by the administrator in ... satisfaction of vendor's lien. Hart v. Logan, 49 ... Mo. 47; Duke v. Brandt, 51 Mo. 221; Jones v ... Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo ... 510; Atkinson v ... ...
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Blevins v. Smith
...taken a title bond for land, and paid part of the purchase money, his wife has an inchoate right of dower in the land thus held, (Hart v. Logan, 49 Mo. 47;) and yet, in such case, if the husband's interest be sold under a general execution, the inchoate right of dower is barred, (Worsham v.......