
    Williams vs. Woods.
    Williams bought of Woods land, paid a part of the purchase money, took bond for title when the balance should be paid, and died: Held, that the right of the vendor to háve the land sold for the payment of the balance of the purchase money was superior to the right of the widow of the vendee tobe endowed thereof. In such case, if the land is sold by chancery decree the purchaser takes it discharged of the right of dower; the widow is entitled, however, to one-third of the surplus produced at the sale during her natural life.
    Rachael Williams filed her bill in the chancery court, held at Dandridge for the fifth chancery district in the eastern division of the State, on the 16th day of January, 1838, against Robert and John Woods in forma pauperis. This bill charges that complainant, Rachael Williams, was the widow of James Williams, deceased, late of the county of Codee; that on the 25th day of January, 1822, her husband, James Williams, purchased one hundred and twenty-four and three-fourth acres of land, lying in the county of Cocke, of a certain John Woods, and said Woods executed to said Williams a bond in the sum of eight hundred and twenty-four dollars, the condition of which was as follows: _
    “The condition of the above obligation is such, that the above bound John Woods has on this day bargained and sold, and will give peaceable possession of, one hundred and twenty-four and three-fourth acres of land on the 15th day of February next to the said James Williams, and which is bounded as follows,” &c. &c. “Now if the said John Woods doth make or cause to be made a good and sufficient title to the above named tract of land on or before the first day of October next to the said James Williams, his heirs or assigns, then the above obligation to be void, otherwise to remain in full force and virtue.
    John Woods, [l. s.]’’
    The bill further charges that said Woods, about the time the bond above mentioned was executed, put James Williams in full and peaceable possession of the premises under and by virtue of the agreement of sale: that her deceased husband paid up all the consideration agreed to be paid but a small amount, and whilst in the undisturbed enjoyment of the same he took sick and died intestate, leaving complainant in possession of the land; that complainant and the heirs of Williams, deceased, remained in full possession of the land for several years after his death; and whilst so in possession, that said John Woods filed his bill in the circuit court of Cocke county in 1830, charging that he held a lien upon said land for a supposed balance of the purchase money alleged to be due him. The bill further charges that complainant was not made a party defendant to the bill filed against the heirs; that the land was ordered to be sold for the payment of an alleged balance of the purchase money; that it was sold, and said James Woods became the purchaser for a small consideration, and a final decree was rendered in the case divesting complainant and the heirs at law of James Williams of all title to the premises, and vesting the same in. said John Woods; and that she'was subsequently" turned • out of possession of the land. The bill further charges that John Woods took possession of said tract of land and had held possession of the same for a term of years and still continued to hold a portion thereof, the balance being-held by one Robert Woods, but under what claim of right complainant did not know. The bill charges that complainant was entitled to dower in the said tract of land in which her husband died seized and possessed of an equitable interest. The bill further alleges that she had filed her petition to obtain her dower rights allowed, but that the said petition was dismissed because the rights of the parties could not be tried in as full and as ample manner as by bill in equity.
    The bill prays that dower may be allotted to her, and that the damages due her for the detention of her dower might be set off against any balance which might be ascertained to be due said Woods.
    At the June term, 1838, John Woods filed his demurrer to the plaintiff’s bill, and argument being heard thereupon, the demurrer was overruled and leave was given the respondent till the next term to answer the bill.
    John Woods filed his answer on the 21st August, 1838. He admits the contract of sale set forth in the complainant’s bill, and alleges that Williams died intestate and utterly insolvent, leaving a portion of the purchase money unpaid, and that he was forced to file his bill in the chancery court for the purpose of obtaining a sale of the land for the unpaid purchase money; that the land was decreed to be sold and was sold for the payment of the sum due respondent, and that he became the,purchaser and obtained quiet possession of the premises according to law.
    Respondent further alleges that it was not true that complainant was no party to the bill filed; that she was a party, if not in her own right, at least as the guardian of her children; that she had knowledge of the institution of the suit, of its progress, of the final decree, of the sale of said land, and purchase by respondent, and that she stood in a situation to have asserted her pretended right to dower if she desired so to do, but that no such right, was set up. Respondent urged said decree of sale in bar of her present bill..
    Respondent further alleges that all the matters of law and fact involved in this case were fully before thecourt discussed, and adjudicated in the petition filed by the complainant to have her dower allowed her, and the petition was dismissed upon final hearing; that complainant appealed from such judgment of dismissal to the supreme court, where the question was fully examined and the decree of the circuit court of law and equity affirmed.
    
    The respondent exhibited in his answer a transcript of the proceedings had on the bill filed by him for the sale of the land, from which it appeared that the land was purchased by Williams for the sum of two hundred and twelve dollars, in Tennessee bank notes, and that the sura of one hundred and •ninety-six dollars remained due and unpaid at his death, and that the court decreed that if the said sum of one hundred and ninety-six dollars was not paid in four months from the date of the decree that the land should be sold for the satisfaction of the same; that the money was not paid, and the land was sold and Woods became the purchaser. Respondent nlso made an exhibit of the petition, answer and opinion of the supreme court thereupon, mentioned in the bill of complainant, and contended that the whole matter of law and fact involved in the present bill was adjudicated and. settled in that case.
    At the December term, 1838, complainant filed her replication to the answer of defendant Woods. At the June term, 1839, the cause was set for hearing, and being heard, the chancellor, being of opinion that complainant was not entitled to relief, dismissed the bill. Complainant appealed in forma pauperis to the supreme court.
    
    
      Peck, for complainant.
    No one is bound by a judgment or decree where that person has not in regular form been made a party. Mrs. Williams was not a party to the first record in the circuit court of Cocke county. She is not bound by that decree, for there is none touching her. Her right to dower does not depend upon what the heirs may or may not do. If the heirs had sold the land it would not deprive her of the right the law cast upon her. So if the law sell the right of the heirs, she, not being a party, is not excluded. Dower is favored; and in most cases creditors are not preferred to the widow. But admit that a lien exists in this case: can she not discharge the lien and be let into the right? She may call in the heirs to assist her, but this is a right she may waive. She has done so. If liable for all, and she will take the burden, whose business is it? The petition did not reach her case. The point raised in this bill was not in that. In that case she did not offer to discharge the lien. The court say she should have done so. Not having done it, the justice of the case could not be reached.
    Whether a judgment is conclusive or not, and especially in equity, must depend upon the -whole case; if the merits have not been reached because of some defect in the form of the proceeding, the form of the proceeding may be altered so as to attain the justice of the case. Surely the court would let the party in in another form to come at the merits and do justice. •
    The question in this case is, is the answer showing the proceedings upon the petition conclusive? In the form relied upon it is insisted it is not conclusive. It must be by plea in form, and it must be certain to every intent and sworn to in the form prescribed. To insist upon it in the answer as if pleaded only brings it to the notice of the court, but does not make it more conclusive than any other part of the answer. The plea to be good must cover the whole ground in bar; it cannot reach part and miss the rest, yet still be good; it is in fact no plea unless it cover the whole. The answer relies upon the decree in the circuit court as being good to defeat the dower. In the frame of this bill that is not true in point of fact. The plea, as to the petition and judgment dismissing it, is bad, and the case stands upon the offer to discharge the lien. If the plea is bad in bar, then the complainant is not excluded. 4 John. Ch. Ca. 140: 7 John. Ch. Ca. I, 166, 286, 300. The defence is attempted to be put upon technicalities; then confine the pleader to them: if wrong he loses the benefit of his objection. The application is in time both for the dower and to discharge the lien. Woods has had no possession that bars. The application for dower and discharge of the lien came together. The right is favored; the whole justice of the case can be reached; there is no plea standing in the way. The bill, therefore, was improperly dismissed.
    
      McKinney, for defendants.
    
      
      The following is the opinion of the court in the case referred to delivered by Judge Reese:
      “This is a petition for dower, and the defendants, who are not the heirs at law of the husband, are alone made parties defendant. John Woods,in 1833, sold the land to Williams, the husband, and retaining the legal title as security for the purchase money, gave his bond to convey. In 1830, Williams having died, and a portion of the consideration being unpaid and the legal title remaining in the vendor, he filed his bill against the heirs at law of Williams, and made the petitione%,who was guardian for those of them in their minority, a party defendant in that character. He obtained a decree to subject thé land to sale for the satisfaction of his debt. It was sold, he became the purchaser, and the sale was confirmed by the court. Upon this state of the case the petition for dowerwas dismissed in the circuit court, and we thinly prpp-. erly. For although the widow is in general entitled, as against creditors, to, dower in the lands of which her husband died seized and possessed, yet she is not so. entitled as against those creditors who have a specific lien upon $ho land. Even if a deed had been made to Williams, and he had died seized, of the legal estate, the vendor’s lien upon the land for the balance of the purchase money would have been asserted as well against the widow’s claimjfor dower as against the title of the heirs, and without the vendor being required to look in the first instance to the personal representatives; and therefore, a, fortiori, where the vendor retains the legal title to make sure the payment of the purchase money. The widow, if she claims dower, must, with the, heirs, contribute her share of the purchase money, or if the heirs should fail to pay, she may satisfy the vendor, and thereby entitle herself to dower and to the liepi of the vendor against the heirs for that share or portion of the purchase money which they were subject to pay. But to attain thesej objects_ it would have been necessaiy we think that she should have filed her bill in chancery in due time, as well against the heirs as against the vendor. For this, and for Other reasons which might be suggested, we think the judgment of the circuit court must be affirmed.
    
   Turley, J.

delivered the opinion of the court.

This bill is filed by the complainant against the defendants to assert her right of dower in a tract of land of one hundred and twenty-four and three-fourth acres, under the following circumstances:

On the 25 th day of January, 1822, John Woods sold the -tract of land in controversy to James Williams, the husband of the complainant, and the purchase money not being paid, the title was reserved by the vendor, and a bond to convey executed to the vendee. The vendee died before the purchase money was paid, and- the vendor was compelled to resort to a court of chancery to enforce a payment of his debt hy a sale of the land. A decree for that purpose was obtained, and the land was sold and bought in by the vendee at a price which left no surplus fund, so far as this court can see. The complainant was no party to the proceedings, the bill having been filed against the heirs at law of James Williams; and it is now contended that the widow is endowable of an equitable estate, and that not having been made a party to the proceedings by virtue of which the land was sold, her rights were not divested by the sale, but that she may still, charge the estate in the hands of, the purchaser under the decree with dower interest.

Where land is sold,, and the title is reserved as a security for the payment of the purchase money, the right of the vendor to have it so applied is superior to the right of the widow of the vendee to be endowed thereof. Her right to be endowed of the land in kind depends upon the payment of the purchase money. If this be not done, and the land is sold under a decree of court, the purchaser takes it discharged from the right of dower, and the widow is turned over to the surplus fund, (if the land should sell for more than yvill pay the debt which is a charge upon it,) of which she is entitled to one-third part during her natural life as dower,

From this view it is clearly seen that the complainant in this case has no right to charge the land in the hands of the defendants, but must seek for the surplus fund, if there be any, and look to it alone for redress.

The chancellor was therefore, right in dismissing the bills and we affirm his decree.  