
    *Wheatley’s Heirs v. Calhoun.
    April, 1841,
    Richmond.
    [37 Am. Dec. 654.]
    Partnership — Purchase ot Real Estate — Dower Right oí Partner’s Wife. — By articles between C. and W. they agree to join in purchase of mills and 200 acres of land adjoining, and that in case the purchase shall be effected, C. shall keep the mills at a salary to be paid out of the joint concern, and that “the improvements, privileges, expenses and profits, shall in all respects be equal to both parties and their legal representatives;” they make the purchase accordingly, the mills &c. are conveyed to them jointly, they give their joint bonds for the purchase money, payable in four annual instalments, and a joint mortgage of the property to secure payment of the same, and then commence and carry on the business of millers in partnership for several years; the first instalment is paid out of the social funds, and the «residue of the purchase money out of money borrowed on the credit of the partnership, but repaid to the lenders, by W. alone, after C.’s death : Held, tho’ C. and W. were partners in the milling business carried on by them at the mills so purchased, yet the mills &c. were not social property or stock, but the real estate purchased by C. and W. individually, of which each was tenant in common with the other of an undivided moiety; and therefore, C.’s widow is dowable of his moiety.
    Dower — Seizin of Husband — Purchase Money Hort-gage. — Two persons purchase real estate jointly, and one of the terms of their purchase is, that, on receiving' a conveyance from vendor, they shall, at same time, execute a mortgage of the property to secure payment of the purchase money ; vendor makes the conveyance to the purchasers ; hut their mortgage is not then executed, owing to a difference between vendor and them as to thepro-visions to he inserted therein ; hut the mortgage is executed ten months afterwards, in fulfilment of the original contract of sale and purchase: Held, the rights of the mortgagee are paramount, in equity, to the dower rights of the purchasers’ wives : and upon the death of one of them, his widow is dowable of his equity of redemption of his moiety, hut of that only.
    Partnership-Purchase of Realty — Payment of Another’s Share — Subrogation to Mortgage Dower.
    
    G. and W. make a joint purchase of a real estate. one of the terms of the purchase being that, on receiving a conveyance of the property from vendor, purchasers shall mortgage same property to secure payment of the purchase money; vendor executes conveyance to G. and W. and they execute a mortgage of the property according to the agreement ; G. dies, leaving unpaid three fourths of the purchase money with interest thereon, all of which W. pays, except a trivial balance : Held, W. is entitled to he subrogated, *in equity, to the rights of the mortgagee, and to have satisfaction out of the mortgaged subject, for the excess of the debt paid by him above his just proportion, namely, a moiety thereof ; and, as the rights of the mortgagee were paramount to the right of G’s widow to dower, so are the rights of W. by subrogation, likewise paramount to her right of dower.
    Dower — Rescission of Contract for Sale of Land — Effect on Dower of Vendee’s Widow. — Jiy articles between C. and W. they agree to make a joint purchase of land, and to divide the same between them by a designated line, W. to pay the whole purchase money of the whole land to the vendor thereof, and C. to pay W. the purchase money for his part, at a certain appointed time ; within the time, O. pays W. the greater part, but not the whole, of the purchase money for his part of the land : and then, also within the time, the contract between O. and W. is rescinded. W. agreeing to take back C.’s part of the. land, upon condition that G. shall have credit on another account, for the money he has paid : and G. dies, never having been let into possession of the land so by him agreed to be purchased and paid for: Held, (upon the construction of the statute. 1 Rev. Code, ch. 99, § 31.) that as the contract between G. and W. was wholly executory, and was rescinded before G. had completed payment of the purchase money, and he had never had legal or equitable possession, he had no such equitable estate as that his widow was dowable thereof.
    Upon a bill in chancery, exhibited in the circuit superior court of Spotsylvania, by Mary Ann Calhoun, widow of John Calhoun deceased, against James Wheatley’s heirs, claiming dower of real estate in Culpeper then held by them, the state of the case, collected from the pleadings and proofs, was as follows — ■
    By articles between James Wheatley and John Calhoun, dated the 19th October 1822, it was agreed, that the parties should purchase jointly a parcel of about 557 acres of land; that, when the purchase should be made, the land should be divided by a designated line, so as to give Wheatley about 336- and Calhoun 221 acres ; that Wheatley should make the arrangement with the vendor for the payment of the whole purchase money, at five and a half dollars per acre; and that Calhoun should pay for his part, at the rate of five dollars per acre, on the first June following. The whole of the *land was, it seemed, conveyed to Wheatley; but he never made any conveyance to Calhoun of the 221 acres which he was to have and to pay for; nor did it appear that Calhoun ever had possession thereof.
    Robert Mackay having conveyed certain property in Culpeper, called The New Mills, and 200 acres of land thereto adjoining, to John Gray, upon trust to secure a debt due to John Scott; and Gray being about to sell the property under the deed of trust for the benefit of Scott; Wheatley and Calhoun entered into articles of agreement to make a joint purchase thereof, dated the 21st May 1823, in the following words — “James Wheatlej’and John Calhoun have this day agreed to unite in the purchase of the mill and its appendages, commonly called The New Mills, in Culpeper, belonging to Robert Mackay, provided it does not sell for a price exceeding 7000 dollars. In the event of the purchase being made, J. Calhoun and his man Daniel are to keep the mill for the sum of 300 dollars per annum, to be charged to and paid out of the joint concern, as well as the wages of any assistant miller. The improvements, privileges, expenses and profits, shall in all respects be perfectly equal to both parties and their legal representatives.”
    The trustee Gray made sale of the property on the 20th May 1823, and Wheatley and Calhoun purchased it for 7250 dollars. The terms of the sale were, that the purchase money should be paid in four equal instalments bearing interest from the date of the sale, and payable in one, two, three and four years, and that the purchasers should give bonds with surety for the instal-ments, and moreover execute a deed of trust mortgaging the property itself as collateral security; and that the conveyance to the purchasers, and their bonds and mortgage, should all be executed and delivered at the same time. On the 21st May 1823, Mackay and the trustee Gray executed and delivered a conveyance of the property to Wheatley and Calhoun, and they (with their *surety) gave their joint bonds for the four instalments: but their deed of trust to secure the payment of the purchase money, was not then executed and delivered, in consequence of a difference that arose between the parties as to the provisions to be inserted therein; namely, whether the deed of trust should authorize a sale of the trust subject to enforce payment of each instalment severally, or to enforce payment, after the last instalment should fall due, of the balance of the whole purchase money which should then remain unpaid. This point of difference was referred to and settled by the arbitrament of mutual friends; in pursuance of which, Wheatley and Calhoun, by deed dated the 18th March 1824, conveyed the property to William Roberts, upon trust and with authority, if required, to make sale of the same, after the time appointed for the payment of the last instalment, for the purpose of raising- and paying whatever balance should then be due and unpaid, of the whole purchase money, principal and interest.
    Wheatley and Calhoun were both married men; but neither of their wives joined in their deed of trust of March 1824.
    Under the agreement between Wheatley and Calhoun of October 1822, Calhoun had paid Wheatley 874 dollarsj on account and in part of the purchase money of Calhoun’s designated part of the land which they thereby agreed to purchase jointly ; but by articles between them, dated the 21st May 1823 (the date of Mackay and Gray’s conveyance of the New Mills &c. to them) Wheatley agreed to take back from Calhoun the 221 acres of land mentioned in their agreement of October 1822, upon condition that the 874 dollars, which Calhoun had paid on account.of that land, should be applied to his credit on account of their joint purchase of the New Mills &c.
    * Wheatley and Calhoun, upon their purchase of the New Mills &c. commenced, and for several years carried on, the milling business there in partnership, but the partnership was at length dissolved: the precise date of the dissolution did not appear; it was certainly before, probably not long before, the 4th November 1829.
    The first instalment of the purchase money of the New Mills &c. was paid on the 28th May 1824, amounting with interest to that date to 1923 dollars'; and it seemed (it was not quite certain) that that sum, or at least the greater part of it, was paid out of the partnership funds of Wheatley & Calhoun. As the three other instalments fell due, they borrowed money of the banks at Fredericksburg to pay them, upon the credit of their own notes endorsed by several of their friends for their accommodation ; and out of the money so borrowed, they paid all the instalments with interest thereon, except about 32 dollars, which remained still unpaid, and was charged by Scott, to whom the money was due, to Wheatley.
    The notes discounted by the banks for the accommodation of Wheatley & Calhoun were renewed from time to time, and the accommodation continued, till the dissolution of the partnership; after which, Calhoun agreed, by letter addressed to the banks dated the 4th November 1829, that the notes should still be renewed, and Wheatley should sign them, in the name of the firm of Wheatley & Calhoun, notwithstanding the dissolution. The notes were accordingly so renewed and discounted, from time to time, for the accommodation of Wheatley & Calhoun.
    By deed dated the 1st May 1830, Wheatley and his wife and Calhoun joined in a deed conveying The New Mills and the 200 acres of land adjoining, to a trustee, for the purpose of indemnifying their endorsers at bank; authorizing the trustee, when required, to sell the property, and to apply the proceeds of sale to the payment *of the money, which they had borrowed of the banks to pay the three last instalments of the original purchase money to Gray the trustee, or rather to Scott, his cestui que trust, to whom the money was due. There were then two notes due at the banks, which were provided for by the deed of trust; one for 4040 and the other for 2460 dollars. Wheatley’s wife joined in and duly executed this deed of trust of May 1830. Calhoun’s wife did not join in it, but, on the contrary, positively refused to do so.
    The two notes of Wheatlej' & Calhoun were still continued to be renewed and discounted for their accommodation, from time to time, till Calhoun’s death, which happened in August 1831; and then, as they could no longer be renewed in the name of Wheatley & Calhoun, they were protested for non-payment.
    In March 1832, The New Mills &c. were sold by the trustee under the deed of trust of May 1830, at public auction, in pursuance of the provisions of that deed; and, at that sale, Wheatley purchased the property for 6000 dollars. There was no reason to doubt, that the sale was fair, and that the 6000 dollars was the full value in the market at the time. The trustee conveyed the property to Wheatley. And in June and August following, he paid the debts due on the notes of Wheatley & Calhoun to the banks, then amounting, principal, interest ahd charges, to 7253 dollars; so that he paid 1253 dollars more than the price for which he had bought the property, besides the usual charges on the trustee’s sale.
    Wheatley had held sole and uninterrupted possession of all the land mentioned in the agreement between him and Calhouh of October 1822 from the date of that agreement, and of The New Mills &c. from the time of the dissolution of the partnership of Wheatley & Calhoun, until Wheatley’s death, which happened in 1835; and thenceforth his heirs held possession of both parcels of property.
    *The widow of Calhoun had exhibited her bill against Wheatley . in his lifetime, and after his death she exhibited a bill of revivor and supplemental bill against his heirs; wherein she claimed dower of her deceased husband’s moiety of The New Mills and the 200 acres of land thereto adjoining, and she insisted that, if it should be held that she was not entitled to dower of that property, then she would be entitled to dower of the 2^1 acres of land mentioned in the agreement between her husband and Wheatley of October 1822, in which (as she claimed) her husband had
    
      acquired such an equitable estate as that she was dowable thereof (under the statute 1 Rev. Code, ch. 99, I 31). And she prayed a decree for her dower out of one or the other parcels of land, an account of the profits accrued since her husband’s death, and a decree for her share thereof.
    The defendants, in their answers, controverted the plaintiff’s claim to dower in either parcel of property; resting their de-fence chiefly on points of law.
    There were some contested questions of fact: however, the facts of the case, as above stated, appeared to be very clearly established by the evidence.
    Upon the hearing in October 1837, the court, declaring that the plaintiff was entitled to dower of one undivided moiety of The New Mills and the 200 acres of land adjoining, — decreed, that she should be let into possession of a full third of the undivided moiety, as tenant in common with the defendants, and awarded her a writ of habere facias seisinam to obtain possession of the same; reserving liberty to her to resort to the court for a partition of the property, or such other relief as should be necessary to give her the full benefit of the decree. And the court declaring also that she was entitled to the arrears of the profits of her dower, but leaving it open for future consideration, whether the account of such profits should be carried back to the death of her husband, or only to the corn-mencement of this suit, directed x'an account of the profits from each period, distinguishing the profits which had accrued during Wheatley’s life, from those which had accrued and been received by his heirs since his death.
    The defendants, by petition to this court, prayed an appeal from the decree; which was allowed.
    The cause was argued here, by Morson for the appellants, and Moncure and Robinson for the appellee, upon the following points of objection taken by the former to the decree: That the appellee was not entitled to dower in The New Mills and 200 acres of land adjoining, 1st, because that property was purchased by Wheatley and •Calhoun, with a view to a partnership between them, in which it was to be put in as stock, was to be paid for by the partnership, and had been paid for out of partnership funds; and, therefore, it ought to be regarded as personal property. Or, even if it was real, jret it was real property belonging to the partnership, and liable to all the partnership debts ; so that the plaintiff could only claim dower of the surplus after the partnership debts were all ipa.id: and, in that view of her rights, an account of the partnership ought to have been taken, in order to ascertain whether there was any surplus, and if any, the amount of it. 2ndly, Because this property having been mortgaged by the deed of trust of Wheatlejr and Calhoun to Roberts of March 1824, to secure the payment of the purchase money thereof to the vendor Gray, and so mortgaged in pursuance of the terms of their purchase from Gray, that mortgage, though it was executed ten months after Gray’s conveyance to them, overreached the right of Calhoun’s wife to dower; the legal title of the property was still in the trustee Roberts; and Wheatley, having paid the money secured by the mortgage, and paid a greater amount than the whole present value of the subject, was entitled to be subrogated to the rights of the mortgagee, which were ^paramount to the appellee’s claim of dower. 3rdly, Because, under the circumstances of the case, the deed of trust executed by Wheatley and Calhoun of May 1830, was only ancillary to their deed of trust of March 1824, since the latter deed mortgaged the same property to secure the same debt for which it was already mortgaged by the prior deed; so that the deed of trust of May 1830 likewise overreached the appellee’s claim to dower. And as Wheatley had fairly purchased the whole property, at a full price, under the deed of May 1830, and had applied the proceeds of the sales to him towards the satisfaction of the debt due from Wheatley and Calhoun on account of their original purchase of the property, for which it had been mortgaged from the beginning; therefore, Wheatley and his heirs were entitled to hold the property exempt from the claim of dower which the appellee asserted in her bill. As to her claim to dower of the 221 acres of land mentioned in the contract between Wheatley and Calhoun of October 1822, Calhoun had but an inchoate equity in that land, which was extinguished before he ever had a right to call for the legal title of the same; therefore, he never held any such equitable estate therein, of which his widow was dowable.
    
      
      Partnership — Real Estate — Immaterial in Whose Name Legal Title Stands. — As a general rule, real estate purchased with partnership funds, for partnership purposes, and appropriated to those purposes, becomes partnership property; and it matters not, in equity, in whose name the property may stand, as owner of the legal title; the party in whose name it stands being treated as a trustee of the partnership, and accountable accordingly. In support of this proposition, see the principal case cited in Hancock v. Talley, 1 Va. Dec. 443; Diggs v. Brown, 78 Va. 295; Cunningham v. Ward, 30 W. Va. 579, 5 S. E. Rep. 650; Brooke v. Washington, 8 Gratt. 255. See Hardy v. Norfolk Mfg. Co., 80 Va. 404; McCully v. McCully, 78 Va. 159. See also, Davis v. Christian, 15 Gratt. 11, and note; Brooke v. Washington, 8 Gratt. 248, and note; Christian v. Ellis, 1 Gratt. 396, and note; 4 Va. Law. Reg. 312.
    
    
      
      Dower — Transitory Seizin — Deed of Trust to Secure Purchase Money. — Where a husband purchases land during coverture, which is conveyed to him, and at the same time he gives back á mortgage or deed of trust to secure the purchase money, the two instruments will be regarded as parts of the same transaction, investing the husband with a transitory seizin only, and therefore his widow will not be entitled to dower in the land against the vendor, though she did not join in the execution of the mortgage or deed of trust, but she will be entitled to dower in the surplus after the payment of the purchase money so secured. Roush v. Miller, 39 W. Va. 641, 20 S. E. Rep. 664; Coffman v. Coffman, 79 Va. 508; Hurst v. Dulaney, 87 Va. 445, 12 S. E. Rep. 800; Summers v. Darne, 31 Gratt. 801; Randall v. Jacques, 20 Fed. Cas. 233. (The above cite the principal case.) George v. Cooper, 15 W. Va. 666. See foot-note to Robinson v. Shacklett, 29 Gratt. 99, and monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
      Same — Same—Deed of Trust Executed Ten Months after. — And though the deed of trust to secure the purchase money was-not executed at the same time with the deed conveying the land to the husband, but ten months after, yet if it was contracted for at that time, the same principle applies, as equity regards that as done which ought to be done'. Wheatley v. Calhoun, 12 Leigh 274.
      Same — Same—Same—Third Parties. — The principle above stated applies equally in favor of a third person who advances the purchase money, and at the time of the conveyance takes a mortgage on the land for his indemnity, for example, where the deed of trust is for the benefit of an assignee of the vendor. Cowardin v. Anderson, 78 Va. 91; Hurst v. Dulaney, 87 Va. 444, 12 S. E. Rep. 800; Roush v. Miller, 39 W. Va. 641, 20 S. E. Rep. 664.
      Same— Same— Same— Presumption.— Moreover, if both instruments are executed on the same day, the presumption is they were executed at the same time, and are parts of the same transaction, unless it be proved that they were separate and independent acts. Hurst v. Dulaney, 87 Va. 445, 12 S. E. Rep. 800, citing Gilliam v. Moore, 4 Leigh 30; Wheatley v. Calhoun, 12 Leigh 264; Wilson v. Davisson, 2 Rob. 384; Robinson v. Shacklett, 29 Gratt. 99; Summers v. Darne, 31 Gratt. 791; Coffman v. Coffman, 79 Va. 504
      Priority of Lien — Cotemporaneous Execution of Deed of Trust. — So, where a purchaser cotemporaneously with delivery of conveyance of the purchased land executes a deed of trust to secure the purchase money, he acquires a transitory seizin only, and not such an interest in the land as becomes subject to the lien of a judgment against him in preference to the deed of trust. Cowardin v. Anderson, 78 Va. 88.
    
    
      
       Partnership— Subrogation — Payment of Another Partner’s Share. — The principal case is cited in Sands v. Durham, 99 Va. 268, 38 S. E. Rep. 145, 6 Va. Law Reg. 256 ; Blair v. Mounts, 41 W. Va. 715, 24 S. E. Rep. 623.
      See foot-note to Buchanan v. Clark, 10 Gratt. 164, and monographic note on “Subrogation” appended to Janney v. Stephen, 2 Pat. & H. 11.
      See the principal case cited in Rosenbaum v. Goodman, 78 Va. 127.
    
   TUCKER, P.

This cause has been argued with very great ability by the counsel on both sides, and the court is much indebted to them for the light which has been shed upon the various points in the case.

The appellee’s claim of dower in the New Mills &c. is contested, first, because, as is alleged, the property was purchased, held, used and paid for, as partnership property ; and therefore was chargeable with partnership liabilities, and properly to be regarded as personal estate, not liable to any dower right of Calhoun’s widow. Whatever doubts majr have heretofore existed, as to the light in which real property is to be considered, when ^bought and used by a commercial partnership for the purposes of the concern, it is now well settled, that it is to be looked upon as forming a part of the partnership funds. Such is, at present, the received doctrine in England; Phillips v. Phillips, 1 Mylne & Keene 649; Broom v. Broom, 3 Id. 443; Randall v. Randall, 7 Sim. 271; 7 Cond. Eng. Ch. Rep. 208 ; 91 Id. 118; 10 Id. 52, and so, this court has decided; Pierce’s adm’r v. Trigg’s heirs, 10 Beigh 406. In the present case, however, I look upon the partnership as not comprehending the mills and land: I consider Wheatley and Calhoun as joint owners of the realty, and partners only in the milling business carried on upon the property. There may, indeed, be partnerships in the business of milling, or mining, or farming ; but unless the intent of the joint owners to throw their real estate into the fund as partnership stock, is distinctly manifested, or unless the real property is bought out of the social funds, for partnership purposes, it must still retain its character of realty. Considering the partnership as a third person, the titles of the individual partners cannot be passed to it, perhaps, without violating the statute of frauds, unless it be by express agreement in writing, or unless, by purchasing with partnership funds, 'an implied trust is raised in its favour. In this case, I see nothing from whence to infer,' that there was any design on the part of these joint purchasers, to convert their real estate into partnership stock; nor am I better satisfied, that the property was purchased with, or paid for out of, partnership funds. To raise a trust by such purchase, it must have been made at the time with partnership funds, or on partnership responsibility. The payment, incidentally, out of those funds, of an instalment due upon an antecedent contract on individual responsibility, cannot raise such a trust, or give title to any thing but reimbursement. Now, here, the purchase was on individual responsibilities. The parties gave their bonds, which bound each *and his heirs for his own part, as between themselves, though both were bound for the whole to the vendor. The payments, therefore, if they had been made with the partnership funds, would not have converted the land into partnership property. But the payments were, in fact, ultimately made by Wheatley himself, whose right to reimbursement rests on principles wholly different.

This brings us to the second point; and here, I think it clear, that the deed of trust of Wheatley and Calhoun to Roberts of March 1824, was paramount to the widow’s right of dower. Though it does not appear to have been executed at the same time with the deed of conveyance to them, yet it was so contracted for, and the two instruments must, therefore, in equity, be .regarded as parts of the same transaction. Gilliam v. Moore, 4 Leigh 30. The dower right of the wife must therefore be subordinate to the deed of trust.

Next, it is to be seen whether that deed of trust is yet in force. It would seem to be so in the strictest sense, for the whole purchase money has not even yet been paid. But even if it had been, I should be clearly of opinion, that it was kept alive for the benefit of Wheatley, so far as he has made payments beyond his just proportion of the debt. Admitting (what I am not yet disposed to concede) that when a surety pays off a bond, there is nothing to 'which he can be substituted, as the security .is gone, yet the. same inference cannot be drawn in relation to a deed of trust. If the surety for the debt has paid it, still the title is outstanding in the trustee, and is .'in the power of a court of equity which will apply it to his indemnification. The technical objection that the remedy is gone, and there is nothing to assign, cannot prevail; and the court will act upon the conscience of the trustee, and compel, him to execute the. trust for the benefit of him who stands in the shoes of the creditor.

*Had the sale, then, been under the first deed of trust of March 1824, there would, I think, be an end of the case. But it was not; and, of course, the equity of redemption under that deed has never been foreclosed, as to any rights of the widow. She was, without question, entitled to dower in that equity of redemption, to the extent to which her husband Calhoun, had made payment of his proportion of the purchase money. In other words, if upon a sale, there should be an excess over and above the debt secured, that excess, being the measure of the equity of redemption, would belong to Calhoun and Wheatley in the proportions in which they have paid the purchase money, and Calhoun’s widow would have her dower in her husband’s portion.

With this view of the case, I am of opinion, that if Mrs. Calhoun shall ask a resale of the trust property, she will be entitled to it; and if there be an excess over and above the purchase money, she will be entitled to her dower interest out of Calhoun’s portion of it. In the event of such claim being asserted, accounts should be directed to ascertain what proportion of the purchase money has been paid by Calhoun, what out of the partnership funds, and what by Wheatley, it being obvious, I think, that Wheatley, if he has over paid, is entitled, by substitution, to resort to the deed of trust for reimbursement.

The other judges concurred.

The decree of this court declared, that on the joint purchase by Wheatley and Calhoun of The New Mills and 200 acres of land, a contingent right of dower in a moiety thereof accrued to the wife of Calhoun, subordinate, however, and subject to the lien for the purchase money; and had that lien been discharged by the payment, by the purchasers respectively, of moieties of the purchase money, the dower right would have prevailed "'over an3r claim of the surviving partner for a general balance on the settlement of the partnership accounts. That the lien for the purchase money, being an express term of the contract of purchase, was paramount to the claim of dower, the efficacy of which lien in overreaching the dower right, was in no degree impaired by the delay in executing the deed of trust, whereby the purchase money was stipulated to be secured; and that deed being executed in fulfilment of one of the stipulations of the contract, has, in respect to the dower right in question, the same effect in equity, to all intents, as if executed uno flatu with the conveyance to Wheatley and Calhoun. That so far as either of the joint purchasers, Wheatley or Calhoun, shall have paid more than a moiety of the purchase mone3r, or so far as the purchase money may have been paid by the partnership of Wheatley & Calhoun, the deed of trust to secure the purchase money stands as a security for the partner or the partnership; and the partner, or the partnership, is entitled to be subrogated thereto, for reimbursement; and to these rights, so far as Wheatley is interested in them, the dower right is subordinate; so that it attaches only to .one moiety of the surplus after satisfying the claim of Wheatley for payment of the purchase money made by himself, or by the partnership of Wheatley & Calhoun. That this claim of dower in property of the nature of an equity of redemption, has not been foreclosed by the sale under the deed of trust of May 1830, to indemnify the endorsers of the notes of Wheatley & Calhoun, which were originally given to provide the means of paying the latter instalments of the original purchase money; and the appellee has still the right to have a resale, should she think proper to claim it, and to have dower of the moiety of excess of the sum produced by such resale, above the amount which, on the taking of the proper accounts, may appear to be necessary to discharge the claims of Wheatley for the payments on account *of the purchase money, made by himself or the partnership of Wheatley & Calhoun. And that the ap-pellee is not entitled to dower in the 221 acres of land her husband contracted to purchase of Wheatley by the articles of October 1822, the contract therefor never having been carried into effect, and the same having been rescinded and abandoned, while it was yet wholly executory, and before the payment of the purchase money was completed, or the legal or equitable possession or seisin of the land acquired by the purchaser. And that the decree of the circuit superior court was erroneous. Therefore, it was reversed with costs &c. And the cause was remanded for further proceedings to be had therein according to the principles above declared; and in case the appellee should not, within a reasonable time, choose to assert her claim to dower on those principles, and to that end, ask a reference to a commissioner to take the proper accounts, then her bill to be dismissed, but without costs.  