Susan Mayburry v. John Pherson Brien

• Decision Date: 01 January 1841
• Citation: 10 L.Ed. 646,40 U.S. 21,15 Pet. 21
• Parties: SUSAN MAYBURRY, Appellant, v. JOHN McPHERSON BRIEN and other, Appellees
• Court: U.S. Supreme Court

40 U.S. 21

15 Pet. 21

10 L.Ed. 646

SUSAN MAYBURRY, Appellant, v. JOHN McPHERSON BRIEN and other, Appellees.

January Term, 1841

APPEAL from the Circuit Court of Maryland.

The case was presented to the court, on a printed statement, and a printed argument, by Mayer, for the appellant; and was argued by Meredith and Nelson, for the appellees.

A bill was filed in this cause, by the appellant, as widow of Willoughby Mayburry, claiming dower from John Brien, purchaser of the estate, in real estate, in Frederick county, designated as 'The Catoctin Furnace, and all the lands' (described by the names of tracts) 'annexed or appropriated to it,' and also claiming rents and profits from the death of Willoughby Mayburry. The real estate in question was conveyed by Catharine Johnson, Baker Johnson and William Ross, as executors of Baker Johnson, to Willoughby Mayburry and Thomas Mayburry, by deed, dated 5th March 1812. By deed dated 9th May 1813, Thomas Mayburry conveyed to Willoughby his undivided moiety in the estate; and by deed of the same date, Willoughby mortgaged to Thomas, all his (Willoughby's) interest in the Catoctin Furnace, and the lands attached to it, to secure payment of certain obligations from Willoughby to Thomas.

The answer admitted the marriage of the appellant, and the death of Willoughby; and that she was married to him, when the deed to Willoughby and Thomas was executed; but it insisted, that, simultaneously with the delivery of the deed, a mortgage was executed by Willoughby and Thomas to the grantors in the deed, to secure a part of the purchase-money, payable by them for the estate. The answer further stated, that the mortgage was foreclosed; and that, under the decree, the respondent, John Brien, became purchaser of the estate; and the answer insisted that the plaintiff was not entitled to dower in the property.

The mortgage, which the answer referred to, was dated the 19th March 1812, fourteen days after the date of the deed to Willoughby and Thomas. The only testimony taken in the case was William Ross's; which was taken subject to all exceptions to its admissibility and effect. His testimony was, in substance, that the estate was sold by him and his co-executors, to the Mayburrys, for $32,000; that part was paid in hand, and that, for the residue, a credit was stipulated, to be secured by mortgage; that the deed to the Mayburrys was prepared and executed, and acknowledged on the 5th March 1812, by himself and the other executors; and that he then retained it, to be delivered on receiving payment of the cash part of the purchasemoney, and receiving from the Mayburrys their mortgage; that the mort gage was executed by them on 19th March 1812, and that when executed the deed was delivered to them, and the mortgage was received from them; and that, as witness said, 'the delivery of the deed and the mortgage were simultaneous acts.' The deposition also stated, that the deed of Thomas to Willoughby, and the mortgage from Willoughby to Thomas, were simultaneous acts. The transcript of record of the foreclosure of the mortgage, was exhibited in evidence, subject to all exceptions.

During the cause, the original defendant, John Brien, died, and his heirs were made parties by bill of revivor. A decree (pro forma) was passed, dismissing the bill. The mortgage of the Mayburrys to the executors of Baker Johnson, had a covenant on the part of the Mayburrys, that after default in payment of the mortgage-debt, the property should remain to the mortgagees, free and clear of all mortgages, judgments, charges or incumbrances whatsoever; and also a covenant of the mortgagees, that until default in payment of the mortgage-debt, the Mayburrys 'are to continue in full possession of the premises aforesaid, enjoying all the rents and profits thereof, to their own particular use and benefit.'

The counsel for the appellant contended:

1. That the deed of the executors of Johnson to the Mayburrys, when the subject-matter of the conveyance is regarded, must be construed to create a tenancy in common, and not a joint-tenancy.

2. That the rule which denies dower in case of joint-tenancy, applies only in behalf of the surviving joint-tenant, and to prevent interference with his enjoyment of the estate as survivor: and that, therefore, if the deed created in the Mayburrys a joint-tenancy, the plaintiff here may call in aid the release to her husband of the other joint-tenant's interest in the property.

3. That no evidence was admissible to show that the deed to the Mayburrys was not delivered when it bears date, for the purpose of contradicting the terms of the deed which vests in the Mayburrys the beneficial interest in the property.

4. That the principle which excludes dower in a case of merely instantaneous seisin, applies only where the grantor acts in carrying out a naked trust, and a simply instrumental part, and not where any interest, immediate or contingent, attaches to the grantee under the conveyance. That it cannot apply to a case of a purchaser who mortgages, and especially, when part of the purchase-money, as in this instance, is paid when the mortgage is given; the proper view in such case being, that legal assurances being adopted, their strictly legal and intrinsic import is to prevail, without blending them together by any equitable construction.

5. That there is no evidence of any contract whatsoever, making the delivery of the deed of the executors dependent on a mortgage being delivered at the same time; and that, according to the true understanding of all that transpired, the deed of the executors remained in Mr. Ross's hands, as a deed, and not as an escrow, and was left by his co-executors with him, as if a stranger, and had relation, when actually delivered, to the date when it was handed to Mr. Ross to be retained.

6. That in the absence, especially, of all contract for a simultaneous delivery, the conveyance to the Mayburrys must be regarded as vesting in them the beneficial use of the estate, although for an instant, and if so, there was a seisin which gave rise to dower; and that this must be the result, even independently of the covenant with the Mayburrys, for their use and enjoyment of the estate until default, as contained in the mortgage; and that the covenant characterizes the seisin, not only as beneficial, but as virtually continuing.

Mayer, in a printed argument, stated:—The terms of the deed to the Mayburrys, from the executors of Johnson, import joint-tenancy in the Mayburrys; but if the peculiarity of the property conveyed is considered, it is believed, that there will be no difficulty in concluding that only a tenancy in common was created. The property conveyed was a furnace establishment, and the land is given as virtually incident to that manufactory, and subservient to the business. It is settled, that real estate conveyed to several parties, for partnership purposes, or which is useful only for some business, is held by the parties as tenants in common, and not as joint-tenants. The nature of the subject conveyed is enough to show why it was acquired, and it is unnecessary to prove any actual use for a joint enterprise; in the absence of such direct proof, the law inferring the intended appropriation, from the character and capacity of the property. In none of the cases, has proof of an agreement to purchase for partnership purposes been required. In the cases, in fact, now cited here, no such agreement did appear. Lake v. Craddock, 3 P. Wms. 158; 15 Johns. 159; 9 Ves. jr. 500. A manufactory was here conveyed to two. In the absence of contrary proof, it is to be understood to have been acquired to be used—and if used by the two parties, for its natural purposes, the use of it would make them partners in its business. It is the principle of the common law which, in favor of trade, excludes survivorship, where property owned by two is used or useful only for trade or business; and to no instance could it apply more forcibly than to the instance of a furnace. Thus, too, where two persons hold a ship together, although not general partners, nor even shown to have used it, the control of a surviving partner to sell is not permitted to the survivor of the owners—the property being deemed a tenancy in common. Even that ordinary control of a surviving partner is only given as a matter of necessity, in the instance of the merchandise of the partnership and the partnership claims—and in such case he is allowed to act in reference to the interest of the deceased, as a trustee. If the estate here was a tenancy in common, dower, of course, attached; unless the seisin was not of a character to allow it. In this country, every construction should oppose joint-tenancy, and particularly in Maryland, which has abolished it by act of 1822, ch. 262.

In this case, the interest of the other party was released to the husband of the appellant. It might be contended, that dower is denied in joint-tenancy only in behalf of the surviving tenant; and that, subject only to his supervening right, there is an incipient dower interest in the wife, in cases of joint-tenancy, as in tenancies in common. If that were so, the release here would establish the dower claim. There is no case that has been found, which fixes, in terms, the law, that the exclusion of dower in joint-tenancies is general as to all, and not of limited reference only to the paramount right of the survivor. Park, in his Treatise of Dower, page 40, adverts to the subject, in the same view now taken. The absolute position that where joint-tenants convey, no dower accrues, is traceable to Fitz. N. B. 150, which refers to 34 Edw. I.; but the treatises do not give the particulars of the latter case. They will, no doubt, appear to have presented only the question of the survivor's rights; and not to decide that the estate of joint-tenancy is incompatible with an incipient dower interest, while the joint-tenancy lasts. Where...