Griffin v. Reece and Wife

1 Del. 508

• Court: Superior Court of Delaware
• Decided: July 5, 1835
• Status: Published

Opinion

The Court,

without hearing Wales for the petitioner, affirmed the decree of the orphans’ court. They remarked upon the case of Brinckloe and Brinckloe, as having been decided on very refined, if not questionable grounds; but said that they would nevertheless consider it in a case exactly similar, of obligatory authority to the extent to which it went but no further. They thought this was not such a case, but clearly distinguishable, (b)

In the case of Mrs. Brinckloe her husband died seized of the lands of which she asked to be endowed. Those lands had been sold by order of the orphans’ court for the payment of debts contracted prior to 1816, and which were existing debts at the time of his decease. The claim was resisted on that ground by the purchasers of the land; and their title under the sale made by order of the orphans’ court was held paramount to the widows right of dower under the act of 1816. The extent therefore of that decision was that debts created before the 16th of February, 1816, and remaining unpaid at the decease of the owner of the land, became on his death, when his land passed by devise or the operation of law to his widow, heirs or devisee, liens on his lands, and which were to be satisfied out of those lands in preference to the widow’s claim of dower; and that on a sale by order of the orphans’ court to pay such debts, the widow is not entitled to dower.

Three things, according to the decision in Brinckloe’s case, were necessary to complete the lien of a creditor, which would overreach the widow’s claim of dower: First. The existence of the debt prior to the 16th February, 1816. Second. The death of the debtor. Third. The existence of the debt at the decease of the debtor. On the decease of the debtor and not till then, the debt attached to the land and became a lien or incumbrance, because the debtor during his life, (no judgment having been obtained) could have conveyed his land, bona fide, free and unembarrassed- of all his debts secured •by bond or simple contract: such debts, therefore, were not a lien or incumbrance on his land so long as he lived. As the death of the party was necessary to consummate the lien or incumbrance by the extinguishment of the debt in the lifetime of the debtor, it would seem necessarily to follow that such a debt never had existed as a lien or incumbrance, according to the principle established in the case of Brincldoe, for by that case to make it a lien or incumbrance which would be paramount to the claim of the widow, it must have existed prior to the act of 1816, and must have continued to exist till the decease of the debtor: on the decease it attached to the land and was held as against the widow, a lien or incumbrance from the creation of the debt, if before February, 1816, but both the existence of the debt at the decease of the debtor, and the decease of the debtor are necessary according to that case to establish and perfect the lien and to carry its operation back to a period prior to the passing of the act of 1816, so as to defeat the claim for dower: that case does not establish the principle that debts which a man might owe on bond or simple contract and which were satisfied before his death, were ever liens on his land or aré to be held as liens after his decease so as to debar his widow of dower. The decision in Brinckloe’s case enlarged the class of liens and incumbrances and comprehended by those terms what had not before been supposed to be embraced within them, that is, debts, not reduced to judgment, mortgage or recognizance, which might remain unsatisfied at the decease of the debtor, and that such debts should operate as liens against the widow’s claim of dower, from the time of their creation. At the death of George Fisher, in 1829, there was no debt due from him to James Dougal and it cannot therefore be held that Dougal’s debt was a lien on the lands of Fisher, according to the principle as to liens first established in Brinckloe’s case. Dougal’s debt was reduced to judgment on the 29th May, 1816: it then became a lien and not before, for till then Fisher had full power to convey his land free from any operation or incumbrance of this debt, but such a conveyance would not have debarred his widow’s claim of dower. On this judgment the land of Fisher was sold in 1817, and the debt of Dougal by that sale discharged. Can a sale by the sheriff on a judgment obtained after the 16th February, 1816, preclude the widow from her dower, when a bona fide conveyance by the debtor himself would not be permitted to have this effect?.By the act of 1816 there is secured to her dower in all lands of which her husband was seized during the marriage, “free and discharged from all and every the alienations, covenants, debts, liens and incumbrances made, entered into, contracted or created by the husband after the intermarriage:” she takes it free from all his covenants, debts, liens and incumbrances, except merely those liens and incumbrances (not debts) which existed prior to that act. The only character as a lien which Dougal’s debt ever ’ possessed, was when it became a judgment in May, 1816, and that character ceased when the judgment was extinguished by the sale. Both the judgment and the debt were extinguished in 1817, and there remained at Fisher’s death in 1829 no debt which could attach as a lien to the house and lot. The sale made of the house and lot to Griffin by the sheriff was under a lien created on 29th May, 1816, the day when judgment was obtained.

Wales, for petitioner. Hamilton, contra.

Decree affirmed.

(b) In Gordon vs. Harris—Sussex, 1822. The Chancellor (Ridgely) decided that though the debt was contracted or created prior to the act of 1816, a bond or judgment subsequently taken, for the same debt, would not bar the widow’s claim of dower. He regarded the new form of security as a new contract; which, being after the law, fell within its provisions.