Kirby v. Dalton, 16 N.C. 195, 1 Dev. Eq. 195 (1828)

June 1828 · Supreme Court of North Carolina

16 N.C. 195, 1 Dev. Eq. 195

Jesse Kirby, ex’r. of Samuel Kirby v. Sally Dalton & others.

From Rowan.

Where the vendee of lands received no title — but only a bond to make one upon the payment of the purchase-money, the dower of his wife in the land is not protected against the debt due the vendor for the purchase-money. — Is the wife entitled to dower at alii Qu,

The Plaintiff in his bill alleged, that his testator, in his lifetime, sold a valuable tract of land to one Jonathan Dalton, for the sum of six thousand dollars; that no title was given to Dalton — but the testator executed a bond to convey upon the payment of the purchase-money; that Dalton had made sundry payments on account of the purchase-money, and that a balance thereof was still due. The bill then stated, that Dalton was dead, and his estate insolvent; that the Plaintiff could not recover the balance of the purchase^money without a sale of the land ; and the prayer was, that the lands might be sold, and the proceeds applied to the satisfaction of the debt due the Plaintiff.

The heirs of Dalton, who were made parties in their answer, insisted, that their ancestor liad been ousted of part of the land, by older and better title, and claimed a reduction of the price on account thereof.

The Defendant Sally, the widow of the vendee, in her answer, averred, that dower in the premises had been assigned to her, and insisted, that so much thereof as was covered by it, was not liable to the debts of her husband.

The allegations above mentioned, were all supported by the proofs.

Nash, for the Plaintiff'.

Devereux, for the Defendants,

Henderson, Judge.

— I cannot perceive upon what grounds this bill can be resisted. The vendor retained the title, for the purpose of securing the payment of the purchase-money, and he has a right in this Court to have his contract specifically executed, which is the object of this bill. As to the claim which the widow sets up, of having her dower protected from this demand, it is equally unfounded. The dower, protected by law against the debts of the husband, is dower in the lands of the husband. This never was the land of the husband; or if it was, while in his hands, it was at all times subject to this debt. This claim is therefore above the husband’s interest. The lands came to his hands, if they came at all, subject to it. There can be no pretence for the exemption.

I have considered this case, as if the widow was entitled to dower in her husband’s equities, which this Court has more than once decided against. But if she was, she would take subject to a superior equity, and this is certainly one of that description.

As to that part of the answer which claims a deduction from the stipulated price, because the vendee was evicted from a part of the land by a superior title, k \x certainly good, and the extent of the loss must be en-qui!>e(1 iMt0-

Per Curiam.

— Direct an account to be taken of the purchase-money unpaid — and let the Master ascertain the value of the laud from which the vendee has been evicted, in relation to the price given for the whole tract.

Let him also ascertain the value at the time of the eviction, computing the interest on both valuations.