#### *Milly Secrest*vs. *William McKenna.*

Where one enters under a written contract to receive titles on payment of the purchase money, and, after payment, under a hill for specific performance, to which his creditors are parties, the premises are sold as his property for payment of his debts, his widow, after his death, willnot be entitled to dower therein, he never having had a legal seizin.

The possession of one who enters under a contract to receive titles on payment of a note for the purohaso money, is not adverse until he makes the payment.

*Before*Dunkin, Oh. *at*Lancaster, *June,*1852.

The decree of his Honor, the Circuit Chancellor, which states the facts of the case, is as follows :

Dunkin, Ch. Dower is a legal right, and can attach only on a legal seizin of the husband during the coverture. The Court assumes that in July, 1833, Leroy Secrest, the late husband of the demandant, entered on the premises under a written contract to receive titles for the same, on payment of a note given for the purchase money, to wit: three thousand nine hundred and thirty dollars. While in possession, Secrest put valuable improvements on the premises, to the extent perhaps of $2000. The note was not paid at maturity,- being payable in three equal annual instalments ; but in Nov., 1833, Secrest had confessed judgment thereon, and execution was lodged in the Sheriff’s Office on 21st Nov., 1833 ; on the day of the confession the defendant executed to Secrest a bond to make titles on payment of the note ; on 7th November, 1842, other property of Secrest was sold by the Sheriff, and $5,512 56 of the proceeds were applied to the satisfaction of this execution, being the amount then due thereon.

On'26th April, 1843, Secrest.filed his bill in this Court against the defendant, to compel him to comply with his contract, by executing titles ; other creditors of Secrest were parties to the proceedings, as Secrest had, in the meantime, become embarrassed. The defendant resisted the prayer of the bill, on the ground that he was one of the sureties of Secrest on his official *73bond as Sheriff — that he had been compelled, or would be compelled to pay money on that account, and insisted on his right to tack. Pending the litigation, to wit: in December, 1844,the premises were ordered to be sold, by the Commissioner, and the proceeds to be paid into Court. They were accordingly sold and purchased by the defendant for about the sum of one thousand and fifty dollars, who complied with his bid. The defendant’s right to tack was sustained, and by an order of 26th June, 1846, (subsequently affirmed,) the proceeds of the sale were ordered to be paid to the defendant. Secrest died insolvent in 1847, or 1848 — evidence was offered that the defendant, as surety of Secrest, had paid some $2400 over and above the sales of the premises received from the Commississioner.

The Court is not called upon, nor is it at liberty to institute an inquiry whether-the defendant has not been greatly benefit-ted by his transactions with the plaintiff’s husband. Whether he has not only been fully paid for the property, which he received back in its improved state, but more than indemnified for any liabilities he may have incurred for the deceased.

The solution of that inquiry would not determine the only issue presented for the Court. If Leroy Secrest had, at any time, during the coverture, a legal seizin, the plaintiff is entitled to a decree ; if not, the defendant must be dismissed. In the argument the seizin of Secrest was inferred from his possession for ten years subsequent tq July, 1833. But it is very clear that until the note was payable, and even until the note was paid, in Nov., 1842, the possession was subordinate to the legal title of McKenna, and therefore not adverse. The bill of Se-crest, in April, 1843, is a substantial acknowledgment that until payment, his possession was fiduciary. If in November, 1833, the defendant had executed a conveyance, and Secrest had re-conveyed by way of mortgage, it has been ruled that until payment the possession of the mortgagor was fiduciary, and not adverse. *Thayer*vs. Cramer, 1 McC. Ch. 395.

It is ordered aqd decreed that the bill be dismissed, but without costs.

*74The plaintiff appealed and now moved this Court to reverse the decree on the grounds:

1. Because the husband of the demandant had a legal seizin during the- coverture in the House and lots from ten years’ peaceable and adverse possession subsequent to July, 1833, during which time he exercised repeated acts of ownership, such as renting the house and lots, and putting up various improvements and additions thereto, without any objection or hindrance on the part of the defendant, and the demandant is therefore entitled to her dower therein.

2. Because the husband of the demandant was beneficially seized of the house and lots, and after payment of the note given for the purchase money, had a right in Equity, to a conveyance of the fee simple : his wife is therefore entitled to her dower therein, though the husband’s right be derived under an executory contract, to make titles upon payment of the purchase money.

3. Because the defendant in his answer to the bill of Secrest, filed in April, 1843, having consented to the sale of the house and lots, as Secrest’s property, and his purchase of the same, at the Commissioner’s sale as Secrest’s property, is a substantial acknowledgment that the possession of Secrest was title— paramount — to the legal paper title of himself, and therefore adverse, and having acquired his right to and possession of the house and lots by his purchase of the same, as Secrest’s property, he is estopped from, and cannot deny the seizin of Secrest; and his Honor erred in overruling the objection urged by plaintiff’s counsel, against the introduction of the record of the case of *Secrest*vs. McKenna, on the ground that McKenna is es-topped from denying Secrest’s title, as he purchased the property at the Commissioner’s sale as Secrest’s, and the demandant is entitled to her dower therein

Williams, *Cooke,*for appellant.

Clinton, contra.

*75
      *Per Curiam.*

This Court approves and affirms the decree of the Chancellor; and it is ordered that the appeal be dismissed.

Johnston, Dunkin, Dargan and Wardi.aw, CC. concurring.

*Appeal dismissed.*