
    Thompson vs. Cochran et als.
    
    Where the legal title to real estate was vested as a security for the payment of the purchase money, and the equitable owner died, his widow cannot have dower assigned to her without a discharge of the sum charged on the estate, an4 if tho money be not paid, she is entitled to have the land sold for its payment, and to be endowed of one-third of the surplus.
    The following decree was entered in this case in the Chancery Court at Greenville.
    “On this 12th day of May 1846, this cause came on for final hearing before the Honorable Thomas L. Williams, Chancellor, upon the pleadings, exhibits, proofs and Master’s report, made in pursuance of the order of the last term, and a motion having been made to set aside said report, and to recommend the same to the Master, to report upon other matters not embraced in the order of reference of the last term; and said motion being disallowed, said report is in all things confirmed. From the whole case it appears, that on the 4th day of October, 1841, the defendant, Cochran, advanced to Daniel Allen the sum of $116 62£, in full discharge of the debt due to said Allen from Thompson, and secured by the deed of trustor mortgage in the bill mentioned; and, thereupon, by agreement of the parties said mortgage or deed of trust was assigned and transferred by said Allen to Cochran, in virtue of which said Cochran became vested with all the rights and equities which had previously existed in favor of said Allen. It further appears, that on the 9 th day of February, 1842, in pursuance of the agreement entered into between said James Thompson and defendant Cochran, an absolute deed for the lands in the bill mentioned was executed to said Cochran by Enoch Wheelock, from whom said Thompson had bought said land; but upon the condition, that if within two years said Thompson should refund to said Cochran the said sum of $116 62J, with interest thereon, he, said Thompson, should be entitled fo have said land reconvey-ed to him by said Cochran, and a defeasance to this effect was executed by said Cochran on the 5th day of February following, which is exhibited with complainant’s bill.
    “And the Chancellor being of opinion, that Jas. Thompson, at the respective times of all the foregoing transactions, was capable of making valid and binding contracts; and that in virtue of the several matters hereinbefore set forth, and established to the satisfaction of the court, said defendant Cochran, was vested with all the rights and equities of a mortgagee in respect to the lands in the bill mentioned, and that he is entitled out of said lands to have the amount of money advanced to said Allen as aforesaid, (now amounting with interest, as appears from the Master’s report, to the sum of $148 83^,) made out of said lands, and for which said lands are hereby declared liable:
    “The Chancellor is pleased to order, adjudge and decree, that unless the complainant shall, within three months from this date, pay to the defendant, Cochran said sum of $148 83£, with the interest which shall hereafter accrue on the same, and alsothecosts ofthissuit, theClerkand Master of this court shall, after having previously advertised the time and place of sale for the space of forty days, in the manner prescribed by law in cases of sheriffs sales, expose to public sale at the door of the court house in Greenville, on a credit of twelve months, said lands, or so much thereof, in the pleadings and said deeds mentioned, as shall be sufficient, to pay and satisfy the costs of this cause, and also the foregoing sum of $148 83j|-with the interest which shall accrue on the same till the purchase money of the land so sold shall fall due. And in making said sale the Master shall be authorized to sell the said lands in lots or separate parcels, to the end, that the foregoing sums charged thereon, may be raised by the sale of the least quantity that may be found practicable; and he shall be at liberty to employ the services of a surveyor, if absolutely necessary, to lay off the boundaries of said lots or separate parcels.”
    The complainant appealed from this decree.
    
      Arnold, for the complainant.
    
      R. J. McKinney, for the defendants.
   Reese, J.

delivered the opinion of the court.

The complainant files her bill to have dower assigned her in a tract of land upon which her late husband, James Thompson, resided at the time of his death, and upon which she still resides. The husband of complainant in his life time made a contract of purchase of the land in question from one Wheelock for the sum of five hundred and fifty dollars, four hundred and upwards of which he paid to Wheelock, and the balance he agreed to pay to one Allen, to whom Wheelock had given a mortgage or deed of trust upon the land, and Wheelock executed a covenant to Thompson to convey the land when the balance of the consideration should be paid. The balance was not paid, and Allen was about to sell the land to satisfy his demand. Upon this state of the case Thompson procured Cochran to advance to Allen the sum of $116 62J, and the debt to Allen was paid, and the deed of trust or mortgage was assigned to Cochran by Allen; and further to secure Cochran for his advance of money to Allen, Thompson caused and procured Wheelock to convey by deed the land to Cochran, and Cochran executed the defeasance set forth in the bill. The legal title is, therefore, by virtue of this deed, to say nothing of the assignment ofthe mortgage, in Cochran, and the equitable title in the heirs of Thompson, subject to the charge upon the land for the$116 62 J advancedby Cochran. It is obvious,therefore, that the widow of Thompson, the complainant, cannot have dower assigned to her without paying the money so secured to Cochran. But she is entitled to dower upon this being done, and if it be not done, she is entitled to have the land sold for the payment of the debt, and to be endowed of one-third of'the money arising from such sale after the payment of the debt.

Such it seems to us are the clear rights of the parties. The record has been encumbered with voluminous and inconclusive testimony on the subject of the alledged insanity of Thompson at the time of these transactions. There was, as it seems, no fraud on the part of Cochran. All that he did was for the benefit of Thompson, and he obtained no advantage, but a security for his money, in doing which he violated no principle of justice or equity.

The Chancellor took this view of the subject, and we affirm his decree.  