
    Anna Gregg v. Charles Jones et als.
    
    Dower. Vendor’s Deed of Trust not swperioi’ to right of Widow to Dower. Vendor made absolute conveyance of land, reserving no lien in the deed, and reciting the payment of the purchase-money. Vendee, same day the conveyance was made to him, executed a deed of trust on same land, to secure notes given for the purchase price of the land to the vendor. Vendee died, leaving notes unpaid. His widow filed bill, asking the land sold to pay purchase price, and to he endowed of the surplus. Held, the deed of trust not having been foreclosed in the lifetime of the maker, his widow is entitled to he endowed of the land, and she is not estopped, because of the prayer in her bill, to have dower of the surplus. She evidently expected the land would bring enough to pay off purchase price and endow her also, and was not fully informed of her rights in the premises.
    Case of Huffaher v. Bowman, 4 Sneed, 94, examined, and shown not in conflict with this decision.
    FROM SHELBY.
    "Writ of Error to Chancery Court of Memphis. W. M. Smith, Ch.
    George W. 'Winchester, for Mrs. Gregg, insisted:
    1. The vendor’s lien is paramount to the claim of the vendee’s widow to dower: 1 Hum., 414; 3 Sneed, 318; et passim. But it is insisted that Millington does not accede to the vendor’s lien in this case, and therefore, the widow’s claim must prevail, and the law, we insist, is as follows:
    2. The vendor’s lien is the right which the vendor has, notwithstanding an absolute conveyance of land by deed, to subject the land in the hands of the original purchaser or purchasers from him, with notice, or volunteers, to the payment of the original purchase-money : Adams’ Equity, side page, 128; White’s Equity Cases, 242.
    3. If the vendor give a bond for title, or take a mortgage or deed of trust to secure his purchase-money, what is known as the vendor’s lien no longer exists; but the vendor’s security in the one case is the title retained; in the other, the title conveyed for his security: White’s Equity Cases, 244; Adams’ Equity, side p. 128, note 2; Little v. Brown., 2 Leigh, 353.
    
      4. If tire vendor takes a mortgage upon the land sold, it is as much a waiver of his lien as if he were to take personal security or a mortgage upon other lands: Adams’ Equity, side p. 128, note 2; 2 Vernon, 281.
    5. The vendor’s lien is merely a personal and equitable right, not passing with the assignment of the vendee’s obligation, but extinguished when an assignment takes place; it properly lies between vendor and vendee: 3 Yerg., 34; White’s Equity Cases, 245.
    6. While an assignee of a bond or note given for purchase-money is not entitled to subject the land to the payment of the money by virtue of any supposed assignment of the vendor’s lien, it is nevertheless true that when the vendor reserves the title in himself, giving bond to the vendee, or takes a mortgage, or deed of trust on the land conveyed to vendee, an assignment of the bond or note for purchase-money, carries with it an assignment of the security: Meigs, p. 52.
    7. The vendor having the absolute title in himself, and dying before sale under the deed of trust to secure payment of purchase-money, the widow is entitled to dower in the land: Code, s. 2399.
    Wilson & Beakd for defendants, insisted:
    This cause is in the Supreme Court upon a writ of error to the Chancery Court, issued at the instance of Anna Gregg. She is the widow of one Paul Gregg, who, on the 29th of May, 1862, bought of Charles Jones a tract of land described in the bill. At this purchase Paul Gregg paid to Charles Jones $2,100 cash, and executed, together with one George R. Powell, three notes for $1,000 each, to said Jones for the balance of the purchase money. Jones made a deed in fee to Gregg and Powell, and they at the same time executed to T. S. Ayres as trustee, a deed of trust on the same property to secure the payment of these three notes. The deed, the deed of trust and the notes were all contemporaneous, bearing date the 29th day of May, 1862.
    Afterward Paul Gregg died leaving Anna Gregg, the complainant, his widow and two children, defendants herein, as his heirs. The widow filed this bill setting forth the above facts, and the further facts that Powell was simply a surety on these notes, and had no interest in the land, and that it was only to hold him harmless that he was joined in these deeds, and that Jones, the vendor, had assigned these three notes to one Millington, who was now their holder and owner. She alleges that the property is unproductive, and that it would be to the interest of the heirs that the property should be sold, and after the payment of the amount due on these said purchase-money notes, that the balance be appropriated to the purchase of some suitable home for the family.
    An order pro confesso was taken against Powell; an answer was filed by Millington, exhibiting the three notes described in the bill, and asserting his lien by virtue of the trust deed, but consenting to a sale of ’'the property by decree of the Court. In the progress of the cause proper accounts were taken to ascertain the amount due Millington on these notes, and finally a decree was entered declaring that Paul Gregg was the sole equitable owner of this property; that the purchase-money notes held by Millington were a superior lien on this property; that it should be sold by the Clerk and Master, and the proceeds of sale, after discharging these notes, should be invested for the benefit of the widow and heirs in other real estate.
    Under this decree the property was sold, and failed at the sale to bring money enough to pay off the purchase-money notes and interest. Afterward a motion was made and granted to complainant, as appears by order entered on the 21st March, 1868, directing the Clerk and Master to take proof, and report the money value of the complainant’s dower in the fund derived from said sale.
    On the 25th of June, 1868, an order was entered disallowing her motion for dower out of this fund, on the ground that the vendor’s and his assignee’s claim was paramount to the widow’s dower. In this, complainant claims there is error, and takes the record up for its correction. .
    Is the widow entitled to be endowed out of this fund before Millington, the holder of the purchase-money notes, is paid?
    1. Ve insist that the complainant is estopped from setting up this claim by the statements of her bill.
    In the bill, after setting out the notes, and alleging that they are held by Millington as assignee, she states “that, after the payment of the balance of the purchase-money,' for which the vendor’s lien primarily attaches, she is advised that she is entitled to the widow’s dower.” The priority of this claim is thus solemnly admitted by her.
    2. To grant this motion of complainant, would be inconsistent with the prayer of her bill.
    Among other things, she prays “that the lot of ground, including the dower be decreed to be sold, and, after the payment of the balance of the purchase-money, that the residue be applied,” etc.
    3. It can not be granted; because to do so, would violate the rule “that the decree must follow the pleading and proof:” Heis. Dig., 578.
    The bill admits the priority of Millington’s claim, the answer of Millington alleges this priority, and the whole cause goes upon the basis of this admission until complainant’s motion is made in its final conclusion, and this- is a mere motion without any amended bill or petition, or any effort to correct the pleadings, and make them consistent with the motion. A decree granting this motion would not only not follow the pleadings, but would flatly contradict everything in the pleadings. • ’
    We think these objections decisive of complainant’s application for dower, but we go beyond them, and assert that, by the laws of Tennessee, the rights of the vendor and his assignee are paramount to the claim of the vendee’s widow to dower.
    “When land is sold, and the title is reserved as sécurity 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:” Williams v. Woods, 1 Hum.; 414 ;t 
      
      Thompson v. Qoehran, 7 Hum., 72; Ellis v. Temple, 4 Col., 315.
    And Millington, tbe assignee of these notes, stands in the shoes clothed with all the rights of the vendor Jones.
    “Unpaid purchase-money secured by a mortgage of the property sold, or simply by a reservation of the title in the seller, draws after it, when assigned, the security provided for its paymentGraham v. McOampbell, Meigs, 56; JDishmon v. Jones, 1 Col., 554; Green v. Demoss, 10 Hum., 374.
    But complainant insists that, however this might have been under the old statutes, the Code, in s. 2399, makes a radical change as to the widow’s right to dower. She can not claim to be endowed under the last clause in s. 2398, because that is brought into the Code from the Act of 1823, c. 37, which was in existence when the cases in 1 Hum.-, 414; 7 Hum., 72; and other like cases were decided.
    Sec. 2399 is brought into the Code from the act of February 11, 1856; it is a re-enactment of it in specific terms.
    In 5 Hum., 26, and 8 Hum., 710, the Supreme Court had decided that a widow was not entitled to dower in lands mortgaged or conveyed in trust to pay debts. “These decisions induced the Legislature to pass the act of 1856:” Tarpley v. Gannaway, 2 Col., 249.
    These cases were the ordinary cases of trusts to secure general debts, involving very different principles from the case of a trust to secure the payment of purchase-monev.
    
      In the case of a general trust. On marriage by the common law, the inchoate right of the wife to be endowed of the real- estate of which her husband is seized during marriage springs up and attaches to each piece of property as it is acquired; this right becoming perfect, however, only at the husband’s death, ■Scrib. on Dower, 2 vol., pp. 1, 2, 3, 4.
    Our statute restricts this right to dower in lands of which “the husband died seized and possessed;” with this limit, the inchoate right attaches as at common law, and becomes perfect at the death of the husband. Thus the right of the mortgagee or trustee, who takes a mortgage or trust deed to secure his •debt, attaches after the inchoate right of the widow, and it is not inequitable to hold that he shall be postponed to this right.
    But in the case of the vendor, equity implies a lien in his favor for his unpaid purchase-moneys, upon the ground that good conscience requires that he should be paid his purchase-money, and it extends this to all purchasers with notice and privies, as it would be unconscientious to let them into the enjoyment of the vendor’s property until the purchase-money was paid. This as to the implied lien, and the reasoning becomes stronger in the case of the vendor who protects himself by an express trust.
    In addition, in the conveyance in fee to the vendee, and his trust deed to secure the unpaid purchase-money, the lien in favor of the vendor, which the law implies and which is made specific by the trust deed, exists -■before the wife’s inchoate right to dower, and so is prior in time as well as higher in conscience. Thus it would, in the face of the authorities of this State and equity, placing the vendor’s claim above the widow’s right to dower, require explicit legislation to alter this rule. Section 2399 by its terms includes general “trusts or mortgages to pay debts,” and excludes the idea of specific trusts to pay purchase-money. It has the fullest play upon conveyances of the first character, without being construed into a violation of all precedent and equity, by interfering with those of the latter class.
    That this is the proper construction of section 2399 of the Code, this example will clearly show. When a vendor of lands retains the title as a security for the unpaid purchase-money, the superiority of his lien over the right of dower of the wife of the vendee is clear and well established: Williams v. Woods, 1 Hum., 414; Thompson v. Cochran, 7 Hum., 72. In such a case .section 2388 will not give the widow dower until the vendor is satisfied, because this section is only a continuation of the acts of 1784 and 1823, which were in existence when these causes were determined. Section 2399 does not give the widow dower in such a case, because by express terms it applies only “to lands mortgaged or conveyed in trust.”
    But if complainant’s construction of this section 2399 is correct, then where the vendor, instead of securing his lien by expressing it in the face of ,his deed, or only giving a bond for title, gives a deed to the vendee and at the same time takes a deed of trust to secure the purchase-money, then in the latter case, in tbe event of tbe ' vendee’s death before payment, bis widow is entitled to dower before tbe payment of tbe purchase-money. The law never contemplated such a state of things, and tbe Courts will not adopt such a construction, especially when they have frequently determined that there is “ no distinction between the case of a legal title retained and a legal title eonveyed to secure the payment of purchase-money, and that in both cases the vendor has a lien, not only against tin. purchaser, his heirs and privies, but against all pu/ - chasers with notice:” Meigs’ Rep., 72; 10 Hum., 374, 4 Col., 315.
    Further, the principle we insist on is well established in the American Courts. It is well settled, that “when a deed for lands is executed, and simultaneously therewith the purchaser gives back a mortgage upon the same lands to secure any portion of the purchase-money, he acquires, as against the holder of the mortgage, no such seizin as will entitle his wife to dower. The deed and mortgage, although in themselves separate and distinct instruments, nevertheless, under the circumstances above stated, are regarded as parts of the same contract. They constitute but a single act and clothe the purchaser with a transitory interest only:” See Scribner on Dower, 1 vol., 261, and authorities cited to note 2.
    The Kentucky authorities at first sight seem to be against this doctrine, but an examination of the case on which complainant chiefly relies, of MeOlure v. Harris , 12 B. Monroe, 261, shows that the Court lays down the rule there upon the assumption that from the nature of that ease, “the vendor’s lien was extinguished;” “that the purchase-money was paid so far as the vendor was concerned.” This being extinguished, and the creditors, according to the Court, being general creditors, the widow of the vendee was entitled to her dower.
   Nicholson, C. J.,

delivered the opinion of the Court.

In May, 1862, Charles Jones sold to Paul Gregg a tract of land of seventeen acres, near Memphis, for $5,000, of which $2,000 was paid in cash, and three notes, for $1,000 each, payable on time, were executed by Paul Gregg and George E. Powell for the balance. An absolute deed was executed by Jones to Gregg and Powell, with covenants of warranty, reserving no lien for purchase-money, and reciting that the purchase-money was paid. On the same day, Gregg and Powell executed a deed of trust of the land to Ayres in trust to secure the payment of the three notes given for the balance of the purchase-money, with power to sell for the satisfaction thereof in the event of default in the payment. Powell really paid nothing toward the land, and claims no interest in it.

Gregg died without having paid the three notes aforesaid, leaving his widow, Anna Gregg, and two minor children * surviving. The three notes were assigned to Millington by Jones.

Anna Gregg files her bill, stating the foregoing facts, and making Millington, Jones, Powell, and her minor children defendants. She prays that the land be sold to pay the balance of the purchase-money, and, alleging that there would be an excess, she prays for dower therein, and the excess be vested in' other lands for a home for her and her children.

Millington answered and admitted the main allegations of the bill, and joined in the prayer for a sale of the land. The minors answer formally by guardian ad litem. The other defendants failed to answer, and the bill was taken for confessed as to them.

The Chancellor decreed a sale of the land, and at the sale the same brought only about $3,100, which was less than the balance due on the land.

Upon the confirmation of the report of sale, Anna Gregg moved the Court to refer the question to the Clerk and Master to ascertain and report what amount of the sum for which the land sold would be equal to her dower therein. The order of reference was made, and, upon the report of the Clerk and Master that her dower would amount to about $600, the Chancellor refused to allot dower, holding that the purchase-money constituted a prior lien.

From this decree Anna Gregg prosecuted her writ of error to this Court.

It is first insisted that complainant is estopped from claiming dower by the admissions in her bill, in which she claimed dower out of the surplus, after satisfying the balance of the purchase - money. <• It is evident that her bill was filed under the belief that the land would sell for an amount sufficient to pay the balance of the purchase-money, and leave a sufficient surplus to purchase a home for herself and minor children. It is farther evident that her bill was filed under a-' misapprehension as to her rights, if the law be as now maintained by her counsel, that her right to dower is superior to that of the holder of the notes for the balance of the purchase-money. The admissions and allegations having been made under a mistake as to the facts and as to her rights, she is not thereby estopped from asserting her rights in accordance with the facts, as they are shown in the pleadings: Singleton v. Ake, 3 Hum., 626.

But the main question in the case is, whether the lien of Millington, by virtue of the trust deed, overreaches the widow’s right of dower? As Jones secured an express lien on the land for the satisfaction of the three notes, of $1000 each, therein provided for, the transfer of the notes to Millington invested him with the right to enforce the security as fully as Jones could do.

When Jones sold the land to Gregg he had his election to secure the payment of the balance of the purchase, either by executing title bond to Gregg and retaining the legal title, or by executing a deed and reserving a lien on its face to secure the payment of the unpaid purchase-money, or to execute a deed without reserving any express lien, but relying on the lien which would then be implied by law. He chose not to adopt either of these modes of securing and enforcing his vendor’s lien. If he had adopted either of the two first-named modes, it is well settled that his lien would have been superior to the widow’s dower; and by some authorities it is held that the implied' lien secured by the third mode would, in like manner, have been superior to the widow’s dower, but on that point we give no opinion, as it is not necessary.

Jones elected to adopt neither of these modes of security, but entered into a contract with Gregg, by which he conveyed to him the absolute title to the land, acknowledging the payment of the consideration of $5000, and reserving no lien, upon Gregg immediately conveying the land to Ayres, as trustee, to secure the payment of the three notes of $1000 each, the balance of the purchase-money thereof, with power to sell upon default of payment of either "note. By the execution of these deeds, Jones waived all his rights or liens as vendor merely, and relied upon his contract to secure the payment of the notes by a more speedy process than he could have availed himself of by relying simply on. his vendor’s lien in either of the three modes specified. Although the three notes were given for the land, they ceased to have attached-to them the vendor’s lien whenever Jones elected to rely upon his contract to secure payment by means of the enforcement of his trust deed.

It is not material whether the two deeds were executed simultaneously or not, and therefore we deem it unnecessary to consider the question as to the effect of a simultaneous conveyance upon the seizin or ownership' of Gregg. It is clear, that by his deed Jones divested himself of his légal title and vested it in Gregg, and that by the immediate conveyance of the legal title to Ayres in trust, Jones had only the equitable title as security for his three notes. The trust deed was made by Gregg, in whom Jones had vested the legal title, and as Gregg died before the land was sold under the trust deed, the case falls directly under the ’section 2399 of the Code, which enacts that the widow “shall be entitled to dower in lands mortgaged or conveyed in trust to pay debts, when the husband dies before foreclosure of the mortgage, or sale under the deed.”

The deed from Gregg to Ayres was made in trust to pay a ■ debt from Gregg to Jones. The statute makes no distinction as to the kinds of debts to be secured. Upon whát rule of construction can we hold, that the Legislature intended to exclude from the operation of 'the language used, debts created for land, any more than debts founded on any other consideration? We have before us a deed of trust, made to secure the payment of a debt created for land; we have before us the fact that the maker of the trust deed died before the trust was executed by the sale of the land, and that he left surviving him a widow. Because the debt secured by the deed was created for the land, we are called upon to make it an exception to the statute, and to hold that it shall overreach the right of dower in the teeth of the statute. The vendor once had the right to assert the superiority of his lien to the widow’s right of dower, but he elected to make a contract by which he ceased to rely on his vendor’s lien, and chose to rely on his trust deed. By so doing he brought his debt under the operation of the express provision of the statute, and it is not in our power to restore him to his rights as a vendor.

The decree of the Chancellor is reversed and a decree will be rendered allotting dower to .the complainant. The defendants will pay the costs of this Court and "of the Court below. ' “

Nicholson, C. J.,

In refhsing a rehearing, said:

The petition for rehearing states two reasons for asking a reconsideration of. the opinion in the case:

1. Because the case of Huffaker v. Bowman, 4 Sneed, 94, was not brought to the attention of the Court in the argument.

2. Because complainant does not allege in her bill and prove that she was married to Paul Gregg at‘the time the deed of trust was executed by him.

It is true the case referred to was not brought to the attention of the Court. It is also true that that case was determined in 1856, and after the passage of the act of 1855-6, embodied in the Code as see. 2399. But it is no less true that the question as to the widow’s right to dower was not involved in the case of Huffaker v. Bowman. The question in that case was, whether the judgment lien oí a creditor would attach to the instantaneous seizin of his debtor in land which was conveyed by the purchaser at execution sale to the debtor to be by him conveyed to another redeeming creditor, in pursuance of a contract to that effect — the whole being one continuous transaction. By way of illustrating the position, that the vendor in such a transaction had only an instantaneous title, which was not reached by the judgment lien, Judge McKinney referred to and quoted the common law rule as to the widow’s dower. He quotes from Blackstone, book 2, p. 130, that “the seizin of the husband for a transitory instant only, where the same act which gives him the estate conveys it also out of him again, as where by a fine, land is granted to a man, and he immediately renders it back by the same fine, such a seizin will not entitle the widow to dower; for the land was merely in transitu, and never vested in the husband, the grant and the render being one continued act.” No controversy could arise as to the correctness of this rule, but Mr. Blackstone proceeds to qualify it by adding: “But if the land abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof.”

It is not denied that this is the well-settled rule, wherever the right of the widow is governed by the common law. Mr. Scribner closes his review of the doctrine as to instantaneous seizin, with this remark: “ The common law rule that instantaneous seizin, accompanied by a beneficial interest in the husband, is sufficient to confer dower, is very generally recognized in the United States.”

But the common law as to dower has been so changed by statute in Tennessee, that the widow is only entitled to dower in such real estate, legal or equitable, as the husband was seized and possessed of at the time of his death. The cases, therefore, in which the rule as to instantaneous seizin can arise, if indeed any such can arise, are necessarily very rare in our State. The husband having the right, by our laws, to defeat the inchoate right of bis widow to dower by divesting himself of title by conveyance, the question as to her rights, by reason of an instantaneous seizin, was necessarily confined to the seizin at the time of his death.

It followed, that as the husband, by a conveyance either by mortgage or deed of trust, could divest himself of his seizin, he could thereby give his creditors secured by mortgage or deed of trust, priority over his widow’s dower right, and postpone her to her dower right in the surplus, by virtue of the statute giving her dower in equitable estates. It was because the law was so held in '5 Hum., 26, 'and 8 Hum., 710, that the Legislature in 1855-6 interposed and enacted that the widow should “be entitled to dower in lands mortgaged or conveyed in trust to pay debts, when the husband dies before foreclosure of the mortgage, or sale under the deed.” This act was carried into the Code at section 2399. The necessary legal effects of this enactment are, first, to abolish the common law rule which made the right of dower dependent on the fact of seizin as to lands conveyed by mortgage or deed of trust;' and second, to give the widow priority over the creditors so secured, if the husband dies before the mortgage is foreclosed or the land sold under the deed. It follows, that when a widow claims dower under this statute the question of the seizin of the husband at his death does not arise, and therefore the rule of the common law as to seizin has no application. Such a case must be determined alone by the construction of the statute. In the case at bar we beld that the widow was entitled to dower by the ■necessary force and meaning of the statute, and we see no reason to doubt the correctness of our conclusion.

The other ground for rehearing is, that the pleadings and proof fail to show that complainant was the wife of Paul Gregg at the date of the deed of trust, on the 29th of May, 1862, and hence that she is not entitled to the benefit of sec. 2399 of the Code. This is a new point, not made in the answer nor in the former argument of the cause. It is now made under a misapprehension of the facts as presented by the pleadings. The bill alleges that Paul Gregg died in February, 1864, leaving two minor children; that he executed the deed of trust on the 29th of May, 1862, and that as widow she is entitled to dower. Jones, for whose benefit the deed of trust was executed, fails to answer, and there is a pro oonfesso as to him. Millington, the assignee of the notes secured in the trust deed, answers and admits that complainant is the widow of Paul Gregg as charged, but insists that his rights are superior to those of the widow.

The facts charged in the bill are not denied, but admitted, so far as they are alleged. If it be true that in February, 1864, when her husband died, complainant had two minor children by him, the inference is altogether probable that their marriage took place prior to May 29th, 1862. The case has been so treated until now, and we have no doubt as to the fact.

The petition for rehearing is dismissed.  