
    Arnold v. Donaldson.
    
      Assignment of dower to former divorced wife of decedent — Application of the rule, caveat emptor, to purchasers at executor’s sale, where dower has not been assigned— When executor cannot bind decedent’s estate, by a promise of indemnity against incumbrances.
    
    An executor, under an order issued by the probate court in a suit to sell lands to pay the debts of the decedent, sold the same without making the former wife of the decedent, who had obtained a divorce from him on account of his aggressions, a party to the suit. The purchaser being advised by counsel that the title to the lands was clear and unincum.bered, and that the wife had no dower-estate therein, bought the lands at their full value in money, paid over the money to the executor, and entered into possession of the premises. The court of common pleas afterwards adjudged, that the divorced wife was dowable of the lands, and dower therein was accordingly assigned and set off to her. Held .• That the purchaser can not maintain an action to recover back sufficient of the purchase-money, to compensate him for the loss he has sustained, by reason of the assignment of dower, and that the rule, caveat emptor, is applicable.
    2. In the absence of authority derived from the.will, or from the order issued by the court for the sale of the lands, the executor can not bind the estate of his decedent, by a verbal promise to indemnify the purchaser against incumbrances or defects in title.
    (Decided November 13, 1888.)
    Error to the District Court of Wood County.
    The defendants in error, James Donaldson, Benjamin F. Kerr, Thomas J. Sterling, Smiley McKee, Lewis Fitch, Isaac Groff and William Markloff, filed their petition in the Court of Common Pleas of Wood County, against the plaintiffs in •error, Wesley Arnold, Sarah Ann Seip, Louisa Bortle, Ada-line A. Arnold, and George P. Hinsdale, as executor of the last will and testament of Emanuel Arnold, deceased.
    The plaintiffs in their petition, in substance aver : “ That Emanuel Arnold died on or about July 14, 1874, leaving a last will and testament, of which George P. Hinsdale was duly appointed and confirmed the executor; that the testator died seized and possessed of the following described lands and tenements situate in the township of Weston, county of Wood, and state of Ohio, to-wit: The west half of the south-west-quarter of section number eight (8), township number five (5), north of range number nine (9) east, containing eighty acres; that defendants, Wesley Arnold, Sarah Ann Seip and Louisa Bortle are the only surviving children, heirs at law, and devisees of Emanuel Arnold; that some time in the year 1844, Emanuel Arnold intermarried with one Sarah Arnold, who on or about February 26, 1852, obtained a divorce from him by reason of his aggressions; that after the rendition of such decree of divorce in favor of Sarah Arnold, Emanuel Arnold was married to Adaline A. Arnold, and they lived together as husband and wife a number of years, when, she commenced an action against him for divorce and alimony, and duly obtained a divorce from him, by decree of said Court of Common Pleas of Wood County; that after Adaline A. Arnold had commenced her action for divorce and alimony against him, he paid to her by compromise and agreement about $2,500, in consideration, and in lieu of all her marital and property rights against him or his estate, either by -way of alimony, dower or otherwise; but through the mistake and inadvertence of the attorney who drafted the decree, the compromise and agreement was not entered upon the journal of the court; that afterwards, Sarah Arnold began her suit in the Court of Common Pleas of Wood County, praying that she might be endowed out of the above described lands and tenements, and of which her husband so died seized and possessed; that such proceedings were had in her suit, that it was adjudged by the court, that she was entitled to dower in the above described premises, and the same was duly assigned and set off according to law; that some time after the death of Emanuel Arnold, the probate court, upon the petition of George P. Hinsdale as executor, finding it necessary to sell real estate to pay the debts of the testator and the costs and expenses of administration, duly issued an order to the executor, empowering and commanding him to appraise, advertise and sell Said lands and tenements according to law; that in obedience to the command of such order, the executor did cause such lands and tenements to be appraised at their true value in money, and advertised and sold the same according to law to the plaintiffs for the sum of $5,240 — the plaintiffs not taking title thereto jointly, but mutually agreeing with each other to take and hold, in severalty, separate and distinct portions thereof, and severally pay said executor therefor; that George P. Hinsdale, executor, made said heirs-at-law and devisees of Emanuel Arnold, parties defendants to said proceedings for the sale of said lands and tenements, but did not make Sarah Arnold or Adaline A. Arnold parties thereto, because, the executor did not think that said Sarah or Adaline had any interest in or to said real estate, by way of dower or otherwise, and that he, the executor, had been so advised by counsel. That the plaintiffs believed when they purchased said lands, that they were acquiring a clear and unincumbered title thereto; that they were advised by counsel that said executor could make such a title to the same, and that neither Sarah Arnold nor Adaline A. Arnold had any interest by way of dower or otherwise, in said premises. That said executor believed he could make and was making a clear and unincumbered title to said lands and tenements, and in view thereof, caused the same to be appraised at their true value in money, free from dower, or any other lien or charge thereon: That the plaintiffs purchased the premises at their full value in money : That the sale to the plaintiffs was duly approved and confirmed by the probate court; that proper Reeds of conveyance were executed and delivered to them, and they went into possession of said lands and tenements.
    That on or about the 14th day of July, 1876, Adaline A. Arnold commenced an action in said court of common pleas, against the plaintiffs and the said defendants — the children and heirs-at-law and devisees of Emanuel Arnold — praying that she might also be endowed of the one-third of the two-thirds of said lands and tenements, and that it was adjudged and determined by said court, and by the District Court of Wood county, and by the Supreme Court of Ohio, that she was entitled to dower therein, and the same was duly set off and assigned to her according to law. That the court further adjudged the said Adaline A. Arnold to be entitled to the rental value of the one-third of said two-thirds of said premises, from the 14th day of July, 1876, to the first day of January, 1881, and accordingly rendered judgment against the plaintiffs, and in favof of said Adaline A. Arnold, for the sum of $317.05 in lieu thereof, and made the same a lien and charge upon said lands and tenements, less the portion set off to Adaline, as aforesaid: That said George P. Hinsdale, when he sold said lands to the plaintiffs, promised and agreed to indemnify and keep them forever harmless, and that if dower was ever asserted or assigned to either Sarah Arnold or Ada-line A. Arnold, he would refund to plaintiffs sufficient of said purchase money, paid by plaintiffs, to make them whole and keep them forever harmless, against any such claim or claims.
    
      “ That defendants, the heirs-at-law and devisees of said Emanuel deceased, were also of opinion that neither the said Sarah nor Adaline A. was entitled to dower in said premises. That since the dower has been assigned to the said Sarah, the said defendants, the heirs-at-law and devisees, have purchased the dower interest of the said Sarah in said lands, and paid her therefor, the sum of one thousand dollars in money, and said Sarah has quit-claimed all her right, title and interest in said premises to the plaintiffs.
    “ That the dower estate, set off and assigned to said Ada-line A., covers the entire ten acres sold and conveyed to Benjamin F. ICerr, and six acres of the portion sold to Lewis Fitch, and by reason thereof, said Kerr and Fitch have been damaged in about the sum of five hundred dollars, to be rated pro rata, according to their relative purchases.
    
      “ That said executor, Hinsdale, has yet in his possession, as executor of said estate, and as part of the moneys arising from said sales, the sum of one thousand dollars ($1,000), or more: That said executor has fully administered upon said estate, and has fully discharged and paid all debts and liabilities against the same, together with the costs and expenses of administration, and that said sum remains in his hands awaiting distribution amongst the defendants, Wesley Arnold, Sarah Ann Seip and Louisa Bortle, the children and heirs-at-law of said Emanuel, deceased.
    “That said executor threatens to pay over, and distribute all of said moneys in his hands, to said children and heirs-at-law: That he will pay over all of said moneys to said heirs unlegs enjoined, by order of this court, from doing so until this cause can be fully heard; thereby leaving these plaintiffs wholly remediless at law; for plaintiffs say that all of said heirs are wholly insolvent, and that there can be nothing whatever collected from them on execution at law, and that if said sum is paid over to them, the same will be hopelessly and irredeemably lost to these plaintiffs.”
    The petition concluded with a prayer for an injunction and all proper and equitable relief. In the court of common pleas there was j udgment for the plaintiffs. The defendants appealed to the district court, and there filed a demurrer to the petition, which was overruled. And thereupon the district court ordered and adjudged, that George P. Hinsdale, out of the moneys in his possession as such executor, and belonging to the estate of Emanuel Arnold, pay and refund to all the plaintiffs, pro rata, the amount, with interest, paid by them to Adaline A. Arnold in lieu of her dower from July 14,1876, to January 1, 1881, and to the plaintiffs Benjamin F. Kerr and Lewis Fitch the sum of $500, the present value ■ of the dower estate set off and assigned to Adaline A. Arnold; that out of the residue thereof, he pay the costs of the action, and distribute the balance, if any in his hands, to Wesley Arnold, Sarah Ann Seip and Louisa Bortle.
    The circuit court awarded a special mandate to the court of common pleas, to carry the judgment of the district court into effect, and to reverse that judgment this proceeding is instituted..
    
      Jashar Pillars and John McCauley, for plaintiffs in error.
    
      James B. Tyler, for defendants in error.
   Hickman, J.

When the land of which the testator, Emanuel Arnold, died seized and possessed, was sold by the executor, George P. Hinsdale, under the order of the court of probate, the knowledge had been brought home to the purchasers, that Sarah Arnold and Adaline A. Arnold were then alive; that they had been wives of the testator, and had been divorced from him on account of his wrongs and aggressions. Prior to the sale, it was a subject of inquiry with the executor and purchasers, whether the latter could acquire a clear and unincumbered title, free from dower — -the former wives of the deceased not having been made parties to the suit in the court of probate for the sale of the land. After advising with counsel, the purchase was made; but not until the executor had promised and agreed, to indemnify the purchasers against any claim for dower. The purchasers were, from the beginning, put on their guard, and acted in full view of the fact, that no dower had ever been assigned and set off to either of the wives. The right of the dowress is as plain and obvious as the right of the heir-at-law. It is a legal estate, and not a secret equity, and until assigned and set off, is a recognized incumbrance upon the land of the deceased husband. But the defendants in error purchased while cognizant that the surviving wives not only had not been endowed, but had not been made parties to the suit for the sale of the land, although the children, heirs-at-law and devisees of the testator, were parties to the proceedings. There is no intimation that any concealment, misrepresentation or fraud can be imputed to the executor, -whereby the purchasers were induced to buy the land.

The facts in this case require, we think, the application ■ of the rule, “Let the buyer beware.” The maxim caveat emptor is applied in all its force to judicial sales. Vattier v. Lytle’s Executors, 6 Ohio 477; Corwin v. Benham, 2 Ohio St. 37; Creps v. Baird, 3 Ohio St. 277; Dunlap v. Robinson, 12 Ohio St. 530; Westfall v. Dungan, 14 Ohio St. 276; Mechanics’ Loan Association v. O’Connor, 29 Ohio St. 651. In the absence of fraud, the buyer buys at his own risk as to title. The executor’s express warranty of title, unless authorized by the will or by the order of the probate court under which the sale is made, will not bind the estate of the testator. And no warranty of title by the executor, which can bind the estate, will be implied in law. He sells, and the purchaser gets only the interest or estate of the deceased in the premises, whatever it may be; and if the executor warrants expressly, he binds himself individually, but the warranty affects no one else.

It is alleged that when the executor sold the land to the defendants in error, he promised that he would indemnify them against any claim for dower, and that if dower should ever be asserted and assigned to either Sarah Arnold or Adaline A. Arnold, he would refund to the purchaser sufficient of the purchase money paid by them, to make them whole and save them harmless. It is not claimed that authority to make such promise in behalf of the estate, was derived from any power' contained in the will, or from the order of sale issued by the court; and if any liability was incurred by reason of the promise, it was that of the executor individually. It was-said by the court in Dunlap v. Robinson, supra: If express covenants contained in the deed of the administiator, do not bind the estate, we think it clear that his verbal representations, in regard to the state of the title, can have no such effect. Whatever ground such representations may furnish for rescinding or setting aside the sale, or whatever personal liability they may impose upon the administrator, the law which gives him the character of a trustee, has conferred upon him no power to create liabilities against the estate by any warranties, either within or outside of his deed of conveyance.”

It is averred in the original petition, that the executor' caused the lands and tenements to be appraised at their true value in money, and that they were bought for their full value in money. The executor could not have caused the appraisal to be made otherwise. And, as the surviving wives were not made parties to the action for the sale of the premises, and in no way appeared therein, there could not have been an appraisal subject to the dower interests. But the dower incumbrance existed nevertheless; and to what extent a knowledge of the existence of such a probable claim might have impaired the marketable value and saleableness of the property, we cannot definitely determine. It may be, however, that the purchasers would have been compelled to pay a higher price, had there been no such incumbrance, and they may have profited in their purchase by what others regarded a cloud on the title.

It is urged in behalf of the defendants in error, that at and before the time they purchased the lands and tenements, they, as -well as the executor, honestly believed that neither Sarah Arnold nor Adaline A. Arnold were entitled to dower in the premises; in other words they were mistaken as to the law governing the dower-rights of the former wives. They had been divorced from their husband at the date of the executor’s sale, and when the divorces were granted, the “ act concerning divorce and alimony,” passed March 11, 1853, (S. & C. 509) provided in section 7 — which is substantially retained in the Revised Statutes — as follows: That where a divorce shall be granted, by reason of the aggression of the husband, * * * * if wjfe survive her husband, she shall also be entitled to her right of dower in the real estate of her husband, not allowed to her as alimony, of which he was seized at any time during the coverture, and to which she had not relinquished her right of dower.” It would have been patent from an examination of the records of the court of common pleas, that neither at the time the divorce was granted to Sarah Arnold, nor at the time Adaline A. Arnold was divorced from Emanuel Arnold, was any allowance made by the court to either of them in lieu of their respective dower-rights. In view of the statutory provision, in connection with other facts set out in the original petition, it is manifest, that the claim of dower which might be asserted in the future, was not •one of those latent defects of title which a vigilant buyer could not guard against. Nor is there, in our view, in the case before us, such a mistake of law as to call for relief by a court of equity. The remedial power claimed by courts of chancery to relieve against mistakes of law, as said by the court in Bank of the United States v. Daniel, 12 Peters, 32, is a doctrine rather grounded on exceptions than upon established rules. It is well established, as was declared in Hunt v. Rousmaniere, 1 Peters, 15, that mere mistakes of law are not remediable, and that whatever exceptions there may be to the rule, they will be found few in number, and to have something peculiar in their character.” The circumstances connected with the judicial sale to the defendants in error, were not of so unusual a character as to constitute an exception to the general rule.

We are of the opinion, therefore, that the demurrer to the plaintiff’s petition should have been sustained by the district court; that the judgment of that court should be reversed, and the cause remanded to the circuit court for further proceedings.

Judgment accordingly.  