The Columbia herald. [volume] (Columbia, Tenn.) 1850-1873, 1873-01-10
CHAxCEay DECTsIoNs-xo. 8.
PERRY rs. PERnY.-Columbia. 1s7O

EhSA CSs EkIt1 s-SOluulDld. 1CGVs
The single question presented by thu
record is, whether the widows right o
dover is superior to the vendors's egbi-
table or implied tien for unpaid purchase
money.
The land was sold for the SUM of $500,
part Of which WAS paid in cash, and the
remainder secured by note. Some
$500 remain due and unpaid. A deed
was executed By vendor to vend5e, ac-
kno Vledging receipt Of the purchase
money. This deed is in fee simple alb
solute on its face, and retains no lien on
the land. t e vendor died, and his
widow fl ed hen petition to have dover
assigned in the band so sold and COP
veyeG. The Bill, in this case, was then
filed, seeking to enforce the vendors
Len by g 10 Of the land, and to eniOin
the proceeding, on tho part Of the wiG7
ow,- for dover. The writ of Injunction
was granted: and amotion is now made
TO dissolve the Injunction.
By common law, the widow was emit
tied TO one-Jhird of all the lands, of
which her deceased husband was seized
and possessed during .coreTt.sTe. BY act
OF 1884, tn right wac restr eted to lands
of which the husband died Seized and
possessed. Subsequent acts extended
her right TO equitable interests.
This right to dover is one favored in
lnt law anu CONSTITUTE one Vi kuS IIlU,
which Lord Coke declared were favor.
ties with the law, to wit: lie, liberty
and dover. The wife is regarded as a
purchaser for d valuable consideration.
that consideration being marriage.
It has be II recognized as superior to the
claim OF q creditor who died not having
specific lien upon the land. And, in
deed, in comparatively recent case. our
SupreilIu ,ou.U went so far as to hold,
that where husband was seized of land,
and where judgment was recovered
against him, -eXecation levied upon his
land, ana the land sold, if he died be-
fore the Sheriff executed a deed TO the
purchaser, who had actually paid the
money for it bis widow would have
right of dover in the land, superior tc
the right of the purchaser. See Harrell
as. Harre'l, Cold. 49,.
This case we think goes al CePg001 te-
giS, and perhaps beyond 1t. So, it had
been before deciIed that this right of the
widow had preference and priority over
the claim of a creditor who had prosecu-
ted the same to judgmGnt'agains the hus-
band, in his lifetime, and had his tNecu-
tion levied on the lands OF the husband
before his death. See 2 Cold. 246.
Before our act OF 1856, q deed of trust
or mortgage, executed by the hus band,
defeated the wife's right of dover; but
that act, carried into the Code, Il $500,
provides that she shall be entitled to
dover in lands that are niortgaged or
conveyed in trIIstto pay debts, in case
the husband dies before foreclosure of
the mortgage, or sale under the trust
deed. Cold, 246. The act OF 1854 en-
dowed her of the legal estate, and the
act OF 1923. carried into the Code Il 239S),
of the equitable estate OF the husband.
None of these statutes or cases, how
ever, come up directly to the question
before Us, hut are referred TO only by
way of ar alngy.
We arc not aware of any case directly
upon the precise point in hand. There
are cases deciding that, where a ii le
bond only given, and the legal title re-
tanned, or where lien is expressly re-
tanned on the face of the deed, the ven>
doris lien is superior to the widows
right to dover But, suppose, as in this
case, the deed expresses, Oh its face, an
acknowledgment OF payment OF pur-
chase money, aud conveys title absolute,
without reservation OF any lien, what
lien in such case has the vendor? What
is its nature and character? It is an
equity simply, which thevendor of land
mas, to file his Bill and enforce payment
OF purchase money, by sale Of the
land. In such case there is an implied
lien, which attaches only from the filirg
" III" mn. III To- uEC6iI,
Head l 3 ,I.i in some other cases not
recess AIRY 10 cite. II well-drnwn distiuc-
lion is AIKEN between the express lien
retained On the face of the deed and his
implied lien, the courts holding hat the
latter Is mere creature OF u cOurt of
equity, and that it has no effect, or valid
ivy, or pr ority ~ against or over bona
tide or E, r suhseq "ent purchaser. in
lerven,ug before B.Il tiled.
Now. il view OF the enlarged legisla-
ti"n and Judicial liberality extended to
widows, wound she hot be expected to
Z ccupy II position III least Ms favora ble
in point of right, ~ creditor or subSe-
quent purchase: ? If the vendor had a
specific lien, the idow's right would be
subordinate thereto, unquestionRlly.