Jones v. Bragg

• Decision Date: 31 January 1863
• Citation: 33 Mo. 337
• Parties: CATHARINE E. JONES, Plaintiff in Error, v. THOMAS S. BRAGG, Defendant in Error.
• Court: Missouri Supreme Court

33 Mo. 337

CATHARINE E. JONES, Plaintiff in Error,

v.THOMAS S. BRAGG, Defendant in Error.

Supreme Court of Missouri.

January Term, 1863.

Error to Holt Circuit Court.

Ensworth, for plaintiff in error.

I. The court below erred in overruling the plaintiff's motion to strike out. The rights of the parties hereto affected by the sale of the administrator under order of court are governed by § 3 & 8, p. 142, R. C. 1855, and not under § 10, p. 143. Now, what right does the statute say shall be sold of property encumbered by deed of intestate? The statute says that all the right, title and interest of the decedent in the land shall be sold; and the administrator followed the law.

II. The decedent had the right to redeem by paying the mortgage debt, and that right could have been sold under execution against him in his life-time, and the amount bid would have to be paid and go to the execution creditor, and the purchaser would take the land sold at the price bid, with the land subject to the mortgage. In this case the purchaser gets the advantage of having the land released of the mortgage debt when he buys it subject to the mortgage debt, which is paid out of the assets arising from the sale. The deed of mortgage is released by a deed duly recorded.

III. The rights of a widow to dower, like all other rights in real property, is divested by deed or judgment of record.

The defendant claims to have the right to be subrogated to the rights of the beneficiary under the deed of mortgage. How can that be done? The trustee is divested of power to act by entering satisfaction of the debt.

H. M. & A. H. Vories, for defendant in error.

I. The court below committed no error in this cause, because,

1. The deed conveying the land in controversy to Wm. F. Jones, the husband of plaintiff, and the deed of mortgage reconveying the lands to Garth to secure the payment of the purchase money to be paid for said lands, being simultaneous acts and together forming only one transaction, no such seizin was thereby vested in said Wm. F. Jones as would give the plaintiff any right to dower in said lands. (4 Kent, 39; Mayberry v. Brien, 15 Peters, U. S. R. 21; Smith and wife v. Addleman et al., 5 Black. 406; Stow v. Tifft, 15 Johnson, 458; Jackson v. Dewit, 6 Wend. 316.)

II. The land having been reconveyed by Jones to Garth by deed of mortgage to secure the purchase money for the land, which purchase money remained unpaid at the time Jones died; and the administrator of Jones' estate having sold the lands to the defendant with an understanding that the amount paid by the defendant for the land should be applied to the extinguishment of said lien; and the defendant having paid the full value of the land and thereby paid off the mortgage debt, he at least had a right, under the circumstances, to be substituted to the rights of Garth in reference to the lien of the mortgage debt; and plaintiff in such case could only be entitled in equity to dower in the surplus of the purchase money over what it required to pay the mortgage debt. (Vallé v. Fleming, 29 Mo. 154.)

The third section of our statute relating to dower does not apply in this case, because the defendant in this case having by an arrangement with the administrator paid off the mortgage, he has a right to be subrogated to the rights of the mortgagee, against whom the plaintiff has no right to dower. (R. C. 1855, p. 668.)BATES, Judge, delivered the opinion of the court.

Garth sold William H. Jones a tract of land in Holt county. Jones paid a part of the purchase money and gave to Garth a mortgage of the land to secure the payment of...