with the payment of a legacy, and the legatees, instead of proceeding in equity for an enforcement of their lien upon the lands, elected to proceed by ordinary judgment and execution against the devisee, and levied upon and sold the lands devised, in satisfaction of the judgment, it was held that the sheriff's deed conveyed only the title existing in the devisee at the date of the judgment, and consequently that his widow was entitled to dower.1

1 Lloyd v. Conover, 1 Dutch. 47.

CHAPTER XXV.

DOWER AS AGAINST THE VENDOR'S LIEN FOR UNPAID PURCHASE-MONEY.

1. WE have seen that where a vendor of lands retains the title as a security for the unpaid purchase-money, the superiority of his lien over the right of dower of the wife of the vendee is clear and well-established.' And in those States where the doctrine of the English courts of chancery recognising an equitable lien as existing in behalf of the vendor, notwithstanding a conveyance by him of the legal title, is adopted,2 the same principle prevails, and whenever the lien attaches, and, so long as it is preserved, it is paramount to the dower of the wife of the vendee.3

2. But where the purchaser of land gives to the vendor bond and security for the purchase-money, no lien is retained, and

1 Chap. 20, 44.

2 It is adopted in New York, Maryland, Virginia, Tennessee, Mississippi, Georgia, Alabama, Missouri, Arkansas, California, Florida, Iowa, Michigan, Illinois, Indiana, Ohio, Kentucky, and Texas. It is rejected in Pennsylvania, North Carolina, and Maine, and is abolished by statute in Vermont. In Connecticut, Delaware, and Massachusetts, its existence remains undecided and in doubt. Hare & Wal. notes, 1 Lead. Cas. in Eq. 481; 1 Washb. Real Prop. 508, note.

3 Warner v. Van Alstyne, 3 Paige, 513; Ellicott v. Welch, 2 Bland, 242; McArthur v. Porter, 1 Ohio, 99; Fisher v. Johnson, 5 Ind. 492; Talbott v. Armstrong, 14 Ind. 254; Naz. Lit. Inst. v. Lowe, 1 B. Mon. 257; Willett v. Beatty, 12 B. Mon. 172; McClure v. Harris, 12 B. Mon. 261; Williams v. Woods, 1 Humph. 408; Bisland v. Hewett, 11 Smedes & Marsh. 164; Blair v. Thompson, 11 Gratt. 441; Wilson v. Davisson, 2 Rob. Va. 384. See, also, Meigs v. Dimock, 6 Conn. 458; Thompson v. Cochran, 7 Humph. 72. [Thorn v. Ingram, 25 Ark. 52; Gregg v. Jones, 9 Heisk. 382; Brooks v Woods, 40 Ala. 538; Cocke v. Baily, 42 Miss. 81; Walton v. Hargroves, Id. 18; Birnie v. Main, 29 Ark. 591; Thomas v. Hanson, 44 Iowa, 651; Noyes v. Kramer, 54 Iowa, 22; Boyd v. Martin, 9 Heisk. 382; Culber v. Harper, 27 Ohio St. 464; Price v. Hobbs, 47 Md. 359; King v. Ayer, 53 Me. 138; Brackett v. Baum, 50 N. Y. 8; Fox v. Pratt, 27 Ohio St. 512; Glenn v. Clark, 53 Md. 580. See, also, George v. Cooper, 15 W. Va. 666; Duke v. Brandt, 51 Mo. 221; Rawlins v. Lowndes, 34 Md. 639; Calmes v. McCracken, 8 S. C. 87; Smith v. McCarty, 119 Mass. 519; Slaughter v. Culpepper, 44 Ga. 319; Fletcher v. Holmes, 32 Ind. 447; Carver v. Grove, 68 Ind. 371.]

the widow of the purchaser is entitled to dower.' So where it is agreed that the purchaser shall pay for the land by satisfying the demands of certain creditors of the vendor, and upon receiving a deed he executes to them his notes and a mortgage, his wife not joining therein, the rule is the same, and the wife is dowable of the land. In the case last cited the court gave the following reasons for their judgment: "The purchaser paid the purchase-money so far as the vendor was concerned, by the execution of his notes for the amount, to the vendor's creditors. No responsibility for the amount rested upon the vendor. His debts were paid, and so far as he was interested in the transaction, the effect was the same that it would have been had the purchaser, instead of executing his notes to the creditors, paid them the amount in money. The vendor's lien, therefore, was extinguished, and was not transferred by operation of law to his creditors, nor was there any contract between the parties that the creditors should have the benefit of the lien to secure the payment of their debts. Indeed, it is apparent that they did not rely upon it, as they procured the vendee to execute a mortgage for that purpose upon that, and also upon another tract of land, which would have amounted to a waiver of the lien, if the debt had still been due to, and the arrangements made with the vendor. The acceptance of other or additional security by a vendor, amounts to a waiver of his equitable lien."

3. In Meigs v. Dimock, a father conveyed certain land to his son, in consideration of an undertaking on the part of the latter that he would support both his parents during their lives. The son gave bond for the maintenance as stipulated, and also executed to the father and mother a lease of one undivided moiety of about half an acre of the land, with a dwelling-house thereon, and of a like moiety of about seven acres, part of the premises conveyed to him, the lease to continue during their lives. About three years afterwards the son died insolvent, without having done anything in compliance with his contract or made any provision for the future support of his parents. Upon proceedings for dower by his widow, instituted after the death of the

1 Blair v. Thompson, 11 Gratt. 441. [Hart v. Logan, 49 Mo. 47; Clements v. Bostwick, 38 Ga. 1. See, however, Day v. Solomon, 40 Ga. 32.]

2 McClure v. Harris, 12 B. Mon. 261.

9 [Hollis v. Hollis, 4 Baxter, 524; Gregg v. Jones, 5 Heisk. 443.] 4 Meigs v. Dimock, 6 Conn. 458.

father and mother, against parties deriviving title through the father after the death of the son, it was held that no vendor's lien existed in the case. "None of the cases," the court observed, "where a vendor has been decreed to have a lien on the land. sold, for the payment of the purchase-money, are like this. In all those cases, the vendor's object is money. He relies on his lien on the land, there being no other security, and the court of equity says he shall not be defeated. But what was the real nature of this transaction? Daniel Dimock, Sr., intends his son shall have all this estate. He takes a bond for the support of himself and wife during life, and a lease of the buildings and half an acre, and of seven acres of land during the same period. Not a cent of money was intended to be paid. He conveyed by deed. Why not take back a mortgage? Why not take a note or bond for the purchase-money? The nature of the transaction did not require it." The demandant was accordingly endowed of the lands.

4. Upon a sale of the land by an enforcement of the vendor's equitable lien, the purchaser takes it discharged of all claim of dower on the part of the wife of the vendee, and the rule is the same whether the sale be made in the husband's lifetime or after his death. But if the sale be made after his death, she may claim dower of the surplus, if any, remaining after discharging the lien; and it was held by the chancellor in Warner v. Van Alstyne, that she has an equitable right to have the estate of her husband in the hands of his personal representatives, as well as that which descends to his heirs, first exhausted in due course of administration, or upon the equitable principles of marshalling assets, for the payment of the vendor's claim, before resort is had to her dower right in the land for the recovery of the unpaid purchase money. It is obvious, there

1 For the circumstances under which a vendor's lien will be held to attach, and what will be deemed a waiver or extinguishment of the lien, see 1 Lead. Cas. in Equity, 262-281, and 1 Washb. on Real Prop. 504-509, where the cases upon this subject are collected and considered.

2 Bisland v. Hewett, 11 S. & M. 164; Williams v. Woods, 1 Humph. 408: Naz. Lit. Inst. v. Lowe, 1 B. Mon. 257; Wilson v. Davisson, 2 Rob. Va. 384; Barnes v. Gay, 7 Clarke, (Iowa,) 26. [Sec Pillow v. Thomas, 1 Baxt. 120; Riddick v. Walsh, 15 Mo. 519.]

3 Thompson r. Thompson, 1 Jones' (N. C.) Law, 430; Klutts v. Klutts, 5 Jones' (N. C.) Eq. 80; Williams v. Woods, 1 Humph. 408; Thompson v. Cochran, 7 Humph. 72; Warner r. Van Alstyne, 3 Paige, 513; Willett v. Beatty, 12 B. Mon. 172. See ch. 20, ¿ 44.

✦ Warner v. Van Alstyne, 3 Paige, 513; accord. Thompson v. Thompson, 1 Jones'

fore, that where the vendor defers his proceedings until after the death of the husband, he must make the widow a party, otherwise she will not be concluded, and may look to the land for her dower, in proportion to the interest which her husband had therein.' This principle is stated in emphatic terms in McArthur v. Porter. "Had the estate of Porter, which was assets in the hands of his administrator, proved insufficient to pay the debt, it would then have been necessary for Talliaferro to have enforced his lien against the widow's dower estate. This could only be done by making the widow a party. Could she have been legally divested of the freehold vested in her by the death of her husband, upon the mere suggestion of an equitable lien of which she might be totally ignorant, without giving her a day in court to defend her right or redeem her land? Such a principle would be most arbitrary and unjust." In Willett v. Beatty, lands were sold to satisfy a decree rendered after the husband's death, upon a vendor's lien, but the widow was not made a party, and the court gave her dower by taking the fair value of the lands at the time of the sale, excluding from the estimate improvements afterwards made, and deducting therefrom the purchase-money due at that date. One-third of the excess was set apart to the widow for the term of her life, she was to receive the interest on that sum, or enjoy a proportion of the property equivalent in value thereto. The court also gave her a proportionate share of the rents and profits. from the time she had been ejected from the premises under the sale.3

5. It is necessary, also, in order to divest dower, that the proceedings of the vendor be expressly founded on his equitable lien, and for the enforcement thereof. If he proceed at law, and recover judgment against the purchaser or his personal representatives, and then levy upon and sell the lands in satisfaction of his judgment, the widow may claim dower in the lands as of an unincumbered estate. This point was determined in

(N. C.) Law, 430; Klutts v. Klutts, 5 Jones' (N. C.) Eq. 80; contra, Lewis r. Moorman, 7 Port. (Ala.) 522. In Crabb v. Pratt, 15 Ala. 843, the court were in doubt upon this point. And see ch. 23, 31-34. [Creecy v. Pearce, 69 N. C. 67; Peckham v. Hawden, 8 R. I. 160. See Greenbaum v. Austrian, 70 Ill. 591.]

1 Willett v. Beatty, 12 B. Mon. 172; McArthur v. Porter, 1 Ohio, 99. [Matthews v. Duryea, 45 Barb. 69; Smith v. Gardner, 42 Barb. 357. See, however, Brackett

v. Baum, 50 N. Y. 8; Riddick v. Walsh, 15 Mo. 519; Folsom v. Rhodes, 22 Ohio, 435.] 2 McArthur v. Porter, 1 Ohio, 99, 101.

3 Willett v. Beatty, 12 B. Mon. 172.