
    *Seekright on Demise of Gilliam v. Moore.
    
    [24 Am. Dec. 704.]
    November, 1832.
    Dowoi- — 'Transitory Seizin o( hi'seam! ileeii oí Trust for ¡Carchase Money.  — G-. by deed, of bargain and sale, sells and conveys a parcel ol laud to M. and M. by deed of the same date, conveys the same land to trustees, upon trust to secure the purchase money thereof to G. Hjslp, the two conveyances shall be intended parts of the same transaction, and the seizin of M. was instantaneous and transitory, so that M.’s widow is not entitled to dower of the laud.
    Ejectment, in the circuit court of Gooch-land, by W. B. Gilliam against Anna Moore, fora parcel of land described in the declaration as being “so much of a larger parcel of land lying part in Hanover and part in Goochland counties, containing by estimation 560 acres, more or less, and adjoining the lands of E. R., S. M., W. W. and others, as lies in the county of Gooch-land.” Upon the trial, the jury found a special verdict, stating, in substance, the following case:
    W. B. Gilliam being seized in fee of the 560 acres of land, whereof the land in question was parcel, sold the whole 560 acres to J. S. Moore, for yjlOOO. and conveyed the same to him by deed of bargain and sale, dated the 10th October 1804; and Moore, on the same day, by deed of bargain and sale (purporting to be the deed of Moore and Anna his wife, but she never executed it) conveyed the land to trustees, upon trust to secure payment of the purchase money to Gilliam. Several years af-terwards, the whole 560 acres of land was duly sold by the trustees, in pursuance of the deed of trust, to pa}' the purchase money due to Gilliam; and at that sale, Gilliam himself became the purchaser, and the trustees conveyed the land to him; but before he got possession of it, Moore died. Moore’s mansion house was on that part of the land which lay in Goochland; and his widow Anna Moore claimed to hold possession of this part on which the mansion house was situated, until dower of the whole tract should be assigned to *her, under the provisions of the statute, 1 Rev. Code, ch. 107, $ 2, p. 403. And the question of law upon the verdict, was, whether Mrs. Moore was entitled to dower of the 560 acres of land or not?
    The circuit court gave judgment for her; to which, upon the petition of Gilliam, this court awarded a supersedeas.
    Daniel and Ryons, for the plaintiff in error,
    said, there could be no doubt, that the conveyance of the land by Gilliam to Moore, and the reconveyance thereof by Moore to the trustees to secure the purchase mone3r to Gilliam, were contemporary, and, in fact and in law, parts of one and the same transaction ; and that Gilliam’s seizin was merely transitory as well as instantaneous, and, therefore, his widow was not entitled to dower. They cited Co. Ritt. 31b ; 1 Rop. on Prop. 370; 2 Bac. Abr. Dower, c. 2, p. 370; Holbrook v. Einney, 4 Mass. Rep. 566; Clark v. Mttnroe, 14 Id. 351; Stow v. Tifft, 15 Johns. Rep. 458; Childers v. Smith, Gilm. 200.
    Eorbes and Nicholas, for the defendant in error,
    insisted, that the verdict did not find, with certainty, that the conveyance by Gilliam to Moore, and the reconveyance by Moore to the trustees, were contemporary, much less that they were in fact, or were intended to be, parts of the same transaction ; and the court could not supply the defects of the verdict by intendment or inference from the facts found. Eor aught that appeared, Gilliam might have made his conveyance to Moore, and Moore being unable to secure the purchase money otherwise, might have agreed to secure it by the deed of trust, after Gilliam’s conveyance to him was executed and delivered, and might have executed the deed of trust in pursuance of such subsequent agreement. In such case, Moore’s seizin, however short its duration, and though it might have been momentary or instantaneous, would not have been merely transitory, and bis widow would have been entitled to dower. Therefore, Gilliam was not *'entitled to judgment on this verdict. They also objected, that the description of the parcel of land claimed in the declaration was so vague and uncertain, that it could not be known whether the circuit court of Goochland had jurisdiction over the subject.
    Ryons in reply, shewed, by a critical examination of the declaration, that there was no ground for the last objection.
    
      
      This seems to be part of the same controversy which w as before this court in 1817, Moore v. Gilliam, 5 Munf. 316.
    
    
      
      Dower — Transitory Seizin of Husband -Deed of Trust for Purchase Money. - Where laud is conveyed to a husband, and he, by deed of the same date, executes a deed of trust or other incumbrance to secure the purchase money, in which tile wife does not join, she will take her dower in the estate subject, to the incumbrance. For, in such case, the two instruments are regarded notas separate or distinct transactions, but as parts of the same contract, taking: effect at the same time, and investing the husband with a seizin for a transitory instant only ; and not such seizin as will entitle his wife to dower. This principle of law seems settled both In ■Virginia and West Virginia, several cases citing the principal case in support of it. See Wilson v. Davisson, 2 Rob. 398 ; Wheatley v. Calhoun, 12 Leigh 274, and foot-note; foot-note to Robinson v. Shacklett. 29 Gratt. 99; Summers v. Darne, 31 Gratt. 801; Coffman v. Coffman, 79 Va. 508; Hurst v. Dulaney, 87 Va. 445. 12 S. E. Rep. 800; George v. Cooper, 15 W. Va. 674; Holden v. Boggess. 20 W. Va. 73; Roush v. Miller, 39 W. Va. 641, 20 S. E. Rep. 661; Schmertz v. Hammond, 47 W. Va. 524, 35 S. E. Rep. 952; Randall v. Jaques, 20 Fed. Cas. 233.
      See further, monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
    
   CARR, J.

The first and principal question arising on this special verdict is, whether under the deed from Gilliam to Moore, a title to the land vested in Moore, whereof his wife was dowable? X am clearly of opinion, that she was not dowa-ble. It was objected, that the verdict has not found, that the deeds were executed at the same time, and as parts of the same transaction, and that, this being a special verdict, we cannot draw this inference ; but to my mind the finding is abundant to justify, and indeed to compel, the conclusion, that the two instruments were parts of one and the same transaction, and that the seizin of Moore was that instantaneous seizin, spoken of in the books, where the land was merely in transitu, and never vested in the husband. The deeds bear the same date; they are between the same parties; relative to the same subject matter. The vendor conveys the land, for so much money; the vendee reconveys it to secure that money. It is impossible to doubt for a moment, the meaning, connection and (I may say) unity, of the transaction. We have no reported case in our own books directly in point; and this, no doubt, has resulted from the general impression of the bar, that no such right existed in the widow ; for the case must have happened a thousand times. The english books, however, all lay down the position that a transitory seizin in the husband for an instant, does not entitle the wife to dower, and the point has been decided in the same way, in Massachusetts and New York. A different decision at this day, would be exceedingly mischievous, and Open an inexhaustible source of litigation. With respect to the objection taken on the ground *of uncertainty, it seems to have been founded in misapprehension of the meaning of the declaration. I think the judgment ought to be reversed, and judgment entered for the plaintiff on the special verdict.

CAÉEEE, J.

I am of the same opinion. The jury having found that the deed by which Moore acquired title to the land,' and also that by which he conveyed it in trust to secure the payment of the purchase money, were both executed on the same day, I am of opinion, that both deeds must, in the absence of proof to the contrary, be regarded as having been executed at the same time, and to have constituted parts of one and the same transaction; and consequently, that Mrs. Moore is not entitled to dower.

TUCKER, P.

I have no doubt that the description of the land demanded by the declaration is sufficiently certain, and that no part of what is demanded, lies beyond the county line of Goochland, and so out of the jurisdiction of the circuit court.

Nor have I any doubt as to the operation of the deed from the trustee to Gilliam. That deed was executed shortly before Moore’s death. It is found, that Moore was in possession at his death, and that the widow was in possession at the time of the verdict; but no adverse possession is found. This will never be presumed against the1 true owner, but the law will rather presume, unless the contrary is proved, that the . party who has possession holds it for the owner. And this is done not only to uphold his right, but because the law will always presóme that the acts of the party are rightful rather than wrongful. If in this case (as we think) the widow has no title to dower, and if her possession is adverse, then she is a trespasser or disseizor. This the court cannot presume. The jury must find it, and hence the rule that adverse possession must always be expressly found, or such facts as amount to it incon-testibly.

*The real question, in this case, is. as to the right of dower. The authorities cited by the counsel for the plaintiff in error, leave no doubt that where the vendor passes the title to the vendee, and at the same times takes a mortgage or deed of trust for the security of the purchase money, in which the wife of the vendee does not join, she will nevertheless take her dower in the estate subject to the trust or mortgage. In such case, the husband is seized but for an instant, and not befae-ficially for his own use; the deed of conveyance, and the mortgage or deed of trust, are to be considered, like the levy of a fine, as parts of the same transaction and of the same contract; as taking effect at the same instant, and as constituting but one act. If both contracts were contained in the same instrument, there could be no-doubt; and it is the same thing though they are contained in different instruments, provided they are parts of the same contract, and make together but one transaction. That they are parts of the same transaction, must be presumed where they are executed at the same time; and, moreover, as they' cannot be absolutely isochro-nous, as there must be some interval, however small, the court ought always to-take the same day to mean the same time, unless the contrary be found, — unless it be found, that the acts were separate, distinct and independent.

Judgment reversed, and judgment entered for the plaintiff.  