Worsham v. Callison

• Decision Date: 31 January 1872
• Citation: 49 Mo. 206
• Parties: MARY WORSHAM, Plaintiff in Error, v. WILLIAM CALLISON et al., Defendants in Error.
• Court: Missouri Supreme Court

49 Mo. 206

MARY WORSHAM, Plaintiff in Error,

v.WILLIAM CALLISON et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1872.

Error to Morgan Circuit Court.

F. A. Spurlock, for plaintiff in error.

A widow is entitled to dower in lands held by her husband under an executory contract, although all the purchase-money was not paid. (Brewer v. Vernondale, 6 Dana, 204; 7 Gray, 533; Stephens v. Smith, 4 J. J. Marsh. 64.) The true rule seems to be that the widow is entitled to dower where the husband had an equity in fee which would authorize the demand to the chancellor to decree title. (Bailey v. Duncan, 4 Monr. 262.)

A person holding title in fee through the husband is estopped from controverting the widow's right to dower, unless he shows an outstanding title. (Brancroft v. White, 1 Cairnes, 185.) If the husband purchases lands, takes possession, makes improvements, and pays part of the purchase-money, the widow is entitled to dower. (Smiley v. Wright, 2 Ohio, 513; Wall v. Hill, 7 Dana, 174.) The small sum of $13, due on a sale of $600, is too trifling to offset the natural rights of a distressed woman and her children.Campbell & Pemberton, for defendants in error.

The husband was never seized of such an estate as would entitle his widow to dower. (Wagn. Stat. 538, § 1.) The whole of the purchase-money must be paid up before dower attaches. If it is not paid up in the lifetime of the husband it must be paid up out of his estate, or by some one for him. (Wagn. Stat. 538, §§ 2, 3.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff's husband was possessed of an equitable interest in certain real estate, as purchaser by an unsatisfied title bond, and before his death his interest was sold upon execution against him, and bid in by defendant, who afterward obtained a deed from the vendor. She now seeks to have her dower assigned her out of said land.

At common law the wife has no dower in equitable interests acquired under executory contracts of purchase, as the seizin of the real estate by the husband was an essential requisite to the right of dower. (Scribn. Dow. 237, 395, ch. 12, 20.) Our statute (Gen. Stat. 1865, ch. 130, §§ 2, 3; Wagn. Stat. 538) provides for dower in lands held at the husband's decease by an unsatisfied contract, if the consideration remaining due shall be paid out of his assets, or if the land shall be sold by order of court or by virtue of any power in the contract or will of the husband. In the latter case, however, the widow cannot hold against the lien for the purchase-money. Under neither of these provisions can the plaintiff claim dower, for the husband's interest in the property had been sold away from him before his death.

The only claim, then, which she can have is under section 1, which not only gives dower in lands of which the husband was seized as an estate of inheritance, but also when they are held to his use. The provision is as follows: “Section 1. Every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to his use, was seized of an estate of inheritance at any time during the marriage,” etc. It is thus seen that the widow has the same right of dower in lands held in trust to the use of the husband as though he was seized in fee, and the right extends to any lands held by him or in trust for him “at any time during the marriage.”

When an executory contract for the purchase of lands is fully executed by the purchaser, there is a resulting trust in his favor, and the vendor has no further claim upon the lands, but is seized in trust to the use of the purchaser. If this be not so, our statute has made no provision for dower in land...