
    Dingman v. Dingman.
    Land was devised to D., who was married, charged with the payment of a legacy to the sisters of D. ' An action, was prosecuted to enforce the lien of a judgment against B., rendered during coverture, iu which the legates were made parties hut filed no answer or cross petition. Upon default by all the defendants, a decree was rendered in favor of the plaintiffs, ordering the sale of the land in default of payment, and in case of sale, that out of the proceeds the amount of legacies he paid. The land was sold under such decree to one of the plaintiffs and the proceeds distributed as directed therein. The wife of D. was not made a party to the action. Upon the-death of B. she filed her petition for dower.
    
      Meld: She is not barred by such proceedings and sale from her dower in the premisos, and a decree in her action which exempts from her claim sufficient in value of the land sold to pay the legacies, and awards her dower in the balance, is no”t prejudicial to such purchaser, for which the decree will be reversed. Whether such exemption was necessary, quere?
    
    Error to the District Court of Shelby County.
    Daniel Y. Dingman, Sr., died, leaving a certain' tract of land in Shelby county, which he, by bis will, .devised to bis four sons, Daniel Y., George TV., Francis A., and James TV., husband of defendant in error. Francis A. died before the' testator, without heirs of his body, and under said will said lands went to the. other three sons named. The said Daniel Y. Dingman, Sr., by bis said will, also devised $5.00 to each of five daughters therein named, and required the sons to whom the land was devised to pay the legacies to the daughters, and charged the lands devised to the sons 'with the payment of said legacies.
    On November 11, 1861, Daniel Y. Dingman, plaintiff in error, commenced a proceeding against George TV. Dingman and Jamos W. Dingman, husband of defendant in error, for the partition of the land devised to them by their father, and partition was made, which was confirmed February 8, 1862, setting apart in severalty to James W. Dingman, husband of defendant in error, the one hundred and twenty-five acres of land described in the original petition in this case filed by Mary J. Dingman, defendant ¿n error.
    In 1863 a construction was given to said will by the court of common pleas of Shelby county, and it was decreed by said court “ that the bequest of $500 to each daughter is to be paid in. equal proportions by the three surviving sons, and is a charge on their lands.....The surviving daughters will be entitled each to one-fourth, or $125, her share of the bequest to deceased daughter. ”
    On April 9, 1861, D. V. Dingman and II. Thompson, executors of the will of Daniel Y. Dingman, deceased, recovered a judgment against James W. Dingman, husband of defendant in error, in Shelby common pleas, for $2,27421.
    In 1861, Daniel Y. Dingman and II. Thompson, executors of the will of Daniel Y. Dingman, deceased, filed a petition against James "W. Dingman, husband of defendant in error, and others, setting forth the various judgments and other liens on the land, including the said charge in favor of the daughters of the decedent, and praying for the sale of the land to pay the said charge, and to satisfy the judgment in favor of the executors.
    No answer or cross petition was filed by the sisters, the legatees, although they were made parties defendant. December 8, 1861, decree was rendered, finding the amount due plaintiffs, and that the allegations of the petition were true. It then proceeds : “ It is therefore decreed by the court that said lands in plaintiff’s said petition described be appraised, advertised and sold as upon execution, clear of incumbrance, as prayed for in said petition ; that a writ issue to the sheriff of said county, commanding him to cause said sale to be made according to law; that he bring the money arising from said sale into court, to be applied under the order of the court; first, to the payment of any taxes' which may exist on said premises; second, to the costs of this proceeding; third, to render unto the said Elizabeth Quinn, Priscilla Dingman, Mary Dingman and Amanda Dingman $833.33$, with interest on $208.33$ thereof from the 4th day of April, 1862, and interest on $208.33$ thereof from the 4th day of April, 1863, and interest on $208.33$ thereof from 4th day of April, 1864 ; fourth, to pay the costs in the partition case of Daniel V. Dingman, Jr., against George W. Dingman and the said James W. Dingman, which were adjudged against the said James W. Dingman, as stated in the plaintiff’s petition; fifth, to the payment of the plaintiff’s said judgment, as stated in their said petition, together with interest and costs; sixth, and the surplus, if any, to abide the further order of this court.”
    Sale of the one hundred and twenty-five acres of land was made January 23, 1865, to Daniel V. Dingman, plaintiff in error, and on the 4th day of February, 1865, said sale was confirmed, the daughters of the decedent receiving on the distribution of the proceeds of such sale $899.45, the amount of their charge on the land with the interest thereon. The land was sold for $6500.
    Mary J. Dingman, defendant in error, was not a party to, or served with process in any of the foregoing proceedings. In 1877 she filed her petition in Shelby common pleas against Daniel Y. Dingman, asking to have dower decreed and assigned to her in said one hundred and twenty-five acres of land that had been set off to her husband, James W. Dingman, in the partition case aforesaid, and sold to Daniel Y. under the proceeding before mentioned.
    To which petition the defendant filed the following answer: “Defendant denies that petitioner is entitled to dower in said px'emises, in the petition described, or any part thereof. He denies that said James W. Dingman -was seised of any estate whatever in said lands, or any portion thereof, at any time during coverture with this plaintiff.”
    The case went to trial upon the issue thus presented and the court decreed her dower in fifty-six sixty-fifths of the land.
    The defendant below appealed the case to the district court, and on March 28,1879, said court made the same decree that was made in the common pleas. Daniel Y. Dingman took a bill of exceptions, and has filed his petition in error, seeking to reverse the judgment and decree of the district court.
    
      J. 8. OonTclin and Harrison Wilson, for plaintiff in error, claimed:
    I. The executors had power under the statute to sell these lands to pay the legacies which, by the terms of the will, were made a charge upon them. S. & C. 596, § 156.
    II. In their action to sell the lands these legatees were properly made parties defendant; but, their rights being set out “in extenso” in the petition, no answer was by them filed, and none was necessary to entitle them to the relief prayed for in their behalf. S. & O. 590, § 122.
    III. If any one of the liens set out in the petition precluded dower, while others did not, and decree was had upon all, the purchaser at the sale under such decree took the title free of dower. 27 Ohio St. 464, 512; 2 Scribner on Dower, 607,608.
    1Y. The defendant in error was not a necessary party in the action. If she had been made a party, her only right would have been to redeem as against these legacies, which precluded dower, or, under the modern “ Ohio notion,” to have had the estimated value of her inchoate right carved out of the proceeds of sale. These rights she has now. But without such redemption, and in the absence of payment by herself or husband, she is not entitled to dower now and was not then. 30 Ohio St. 196; 32 Ohio St. 210.
    Y. Courts will construe liberally the powers of sale given by statute to executors, and will favor the title of the purchaser, derived from such sale.
    YI. The decree for dower in the court below, being for dower in the undivided fifty-six sixty-fifths of the lands of the deceased husband, is inconsistent, an absurdity in law, and impossible of execution. If the plaintiff below is endowed at all in the lands of her husband, she is endowed in every part of it, and cannot be in an undivided part of the whole of his interest.
    
      
      W. D. Davis, for defendant in error :
    I. Dingman held a complete legal title to the land, coupled with a beneficial interest, and his wife was dowable therein.
    1 Scribner on Dower, 393; 4 Kent’s Com. 45, 46, tojo paging ; Greene v. Greene, 1 Ohio, 542; Derush v. Brown, 8 Ohio, 415.
    II. Even if-the land had been sold under a proceeding to enforce the charge in favor of the sisters of James W., the right of dower of defendant in error would not thereby bo defeated, for the reason that the legacies charged on the land did not constitute a lien that precluded dower.
    III. And, as a matter of fact, said land was not sold under a proceeding to enforce the charge in favor of the sisters of James W. Dingman. The charge in favor of the sisters could not, in any event, preclude the widow’s right of dower. It did not rise to the dignity of a mortgage that would preclude dower, and did not have any greater or higher dignity than a mere judgment lien.
    IV. We insist that the legacies charged on the land in favor of the daughters of the decedent did not preclude dower in favor of Mary J. Dingman, widow of James W., who is now claiming the same, even if the land had been sold in a proceeding to enforce said charge; but we claim the land was not sold to enforce the charge. It must be borne in mind that Mary J. Dingman, defendant in error-, was not a party to this proceeding. The proceeding was not one to enforce the charge. The sisters were made defendants in the case as persons having a lien or claim on the premises, that they might become the recipients of so much of the proceeds of such sale as they were entitled to. Taylor v. Fowler, 18 Ohio, 567; Ketchum v. Shaw, 28 Ohio St. 506; Parmenter v. Binkley, 28 Ohio St. 32.
    V. There can be no difficulty in executing the decree. . Dower can easily be assigned in the fifty-six sixty-fifths, and if there was error in not decreeing her dower in the whole of the land, it is a sufficient answer to say it is an error of which the plaintiff in error can not take advantage, as it does not prejudice him. On this proposition it would be a vain thing to cite authorities.
   Doyle, J.

It is conceded in argument that James W. Dingman had, during coverture, an estate of inheritance in the lands in controversy. He was seised of the legal title in fee-simple, charged with a lien in favor of the legatees.

Under the first clause of the statutes, S. and C. 516, § 1, on the concurrence of marriage and seisin, the wife became invested with dower inchoate, and had there been no lien upon or interest in the land superior thereto, on the death of the husband she would have been entitled to an assignment of dower out of the whole of the land. The entire interest of the husband, both legal and equitable, was sold during coverture, but, as -we shall see, sold under a decree to enforce a lien which affected the husband's interest alone.

The question presented is, whether the proceedings and sale, in the action of the executors against the husband and others, were sufficient to bar the dower of the wife, which was then inchoate.

The action by the executors, it must be remembered was not to sell the land as pari of the estate of the testator for the payment of debts or legacies, but was an action against James W. Dingman to enforce the lien of a judgment against his lands upon a claim due from him to the estate. The executors were not charged with the payment of the legacies, and were not aulhorized, nor did they attempt, to enforce the lien of the legatees in the action under which the land was sold.

We have no doubt that the lien of the legatees was superior to the dower of the wife. If the land had been sold under a decree of the court, in an action prosecuted to enfoice that lien, either by petition or cross petition to which she was properly made a party, it might be difficult to hold that she was not barred of her dower in the whole land, whatever her rights might be in the surplus of the purchase money, left after paying such lien, the sale being made during the life of her husband. See Taylor v. Fowler, 18 Ohio, 569; Unger v. Leiter, 32 Ohio St. 210; Black v. Fuhlman, 30 Ohio St. 196.

In such action, however, she might have the right, where, as in the case at bar, the value of the land was greatly in excess of the amount of the lien, to show that fact, and, if it could be done without injury to any of the parties interested, to require that enough of the land be sold to pay the lien free from her dower, leaving it unaffected in the remainder. The failure to make her a party cannot have the effect of placing her in a worse position. That she was a necessary party in order to foreclose her rights has been frequently held by this court.

In Ketchum v. Shaw, 28 Ohio St. 506, it was held “ where a wife has joined in a mortgage foreclosed during the lifetime of her husband, she not being made a party, after his death she has the right to redeem the mortgage, and then have her dower out of the property. Dower inchoate is not an estate, but it is nevertheless ’ a right or interest in land of which a wife may not be deprived except by proceedings to which she has been made a party.” To.the same effect is McArthur v. Franklin, 15 Ohio St. 506; 16 Ohio St. 196; and Parmenter v. Binckley, 28 Ohio St. 32.

If the husband is seised of a legal estate of inheritance during ^overture, it 'cannot make any difference whether that estate is charged with a lien, -which is superior to the inchoate dower of the wife, by reason of some fact or occurrence to which her assent was not necessary, as in the -case at bar, or because of a mortgage in which she joins with her husband releasing her dower. In either case the lien is paramount to her dower to the extent of it, and must bo first satisfied out of the land before dower can be assigned.

Mary J. Dingman was not a party to the action under which the land was sold. The claim, to enforce which the executors brought their action, was a judgment against the husband, taken during coverture, for the payment of which her interest in the land wras not liable. If there were no liens upon the land superior to her inchoate dower, to be enforced in the action, she would in no sense be a proper party. 28 Ohio St. 35. The legatees were not attempting to enforce the lien which they had for. the amount of the legacies. It is true they were made parties- defendant, and the petition of the executors stated the nature and extent of their interest; but no answer or cross petition was filed by them, and no affirmative decree was or could be granted to them in the absence of such cross petition. Tlie decree ordered that in case the amount found due the plaintiffs was not paid the land should be sold, and in case of sale, • out of the proceeds, the lien of the legatees should be paid.

But the sale made under such decree can in no sense be said to be in an action to enforce a lien, superior to the inchoate interest of the wife, which will remit her to the surplus proceeds of the sale. The most that can be claimed (if indeed that can be), is that the purchaser, the legacies being paid out of the purchase-money, is subrogated to the rights of the legatees as against the widow. It is entirely evident that if the decree in favor of the executors, which did not preclude the dower of the wife, was paid, the entire decree was satisfied. No other party to it could have the land sold under it.

The case, therefore, in this respect is determined by Parmenter v. Binkley, supra. In that case Binkley, the husband, executed a mortgage to Day & Matlack in which the wife did not join, and also one to Peter Face, in which she did join. Day & Matlack, filed a petition against Binkley to foreclose, making Face, Mrs. Binkley and sundry judgment creditors of the husband parties. Face filed an answer setting up his mortgage, but asking no affirmative relief, and none was granted. Mrs. Binkley filed no answer. Decree was rendered in favor of D. & M., the land was sold, and the proceeds exhausted by the prior mortgage. Binkley having died, Mrs. B. sought to redeem the mortgage to Face and recover dower in' the premises. The court held that these proceedings did not bar her right to recover; that to have that effect, Peter Face should have filed a cross petition, asking for a foreclosure of his mortgage, making her a party thereto and have taken a decree thereon ; and not having done so, and the land being sold under a decree for the plaintiffs whose claim did not preclude her dower, she was entitled to redeem and have dower assigned. “ It cannot be maintained that she is barred by.a proceeding in which her rights have not been alluded to, and which did not purport to affect them.” Much less can it be maintained that she is barred by a proceeding to which she. was not a party at all, instituted .to enforce a lien inferior to her rights, and in -which the holders of the only lien superior thereto, made no appearance, filed no pleading, and in which the court did not attempt to affect her interest.

The land sold for $6,500; the amoiint paid the legatees was $899.15; the court below decreed to the defendant in error dower in fifty-six sixty-fifths of the land. As nine sixty-fifths of the purchase-money was paid to the legatees, the effect of the decree is to sustain the title of plaintiff in error, to nine sixty-fifths of the land free from the dower. This is an unusual way of working out the rights of the parties, but we are not disposed to disturb it here for two reasons. First, because while complaint js made of this, it is not claimed, that if defendant in error is entitled to dower at all, she gets thereby more than she would if required to' redeem, and then have dower assigned in the whole. The land was appraised at $9,500. She was not bound to accept the purchase price, at execution sale, as the true value of the land, and it is quite evident that if-any one is prejudiced by the decree, it is not the plaintiff in error. Second. It is by no means certain that she was not entitled to dower in the whole land. In the action under which the land was sold, the legatees filed no answer and were in default, as were all of the other parties defendant. There was no claim asserted against the interest of the wife. After paying the plaintiff’s claim, the balance of the money was brought into court. Whose money was it ? No one bad set up any claim to -it, and in tbe absence of such claim by any of the defendants, it would seem to belong to the defendant James W. Dingman, and it was with this money. that the legacies were paid. It is true they were so paid by order of the court, in an action in which the purchaser was one of the plaintiffs, and which could only affect the husband’s interest; and out of proceeds arising from tbe sale of the husband’s interest alone. If the legatees had not been made parties, and the surplus, of the proceeds was used to pay their claim, it would clearly be held to be paid by moneys of the-husband, wbieli would extinguish tbe lien. We are not willing to say that making tbe legatees parties where they wholly fail-to assert any claim or seek any relief against the interest of the wife changes the rule.

Judgment affirmed.  