Knox v. Higinbotham

1 Ga. L. Rep. 12

• Court: Supreme Court of Georgia
• Decided: July 1, 1885
• Status: Published

Opinion

Hall, J.

l. Where a wife joined with her husband in a mortgage ’ to secure money borrowed by him for the purpose of removing' encumbrances from the land mortgaged, and made therein a waiver of dower., .this did not prevent her from obtaining dower in the land aftef the ■ death of her husband. Code, §1769.

J. H. Felker; Ray & Walker, for plaintiff in error.' McHenry & McHenry ; James F. Rogers, for defendant..

2. While the right of dower is-highly favored and carefully guarded by the courts, yet if the widow should practice fraud upon innocent purchasers, and induce them to become purchasers of land .subject to her dower, under the impression that they were getting property free from such encumbrance, she would be esstopped from setting up her right to dower in such land. t But in order to avail himself of an estoppel on such grounds, the purchaser must have acted honestly and fairly, must have been a bona fide purchaser, in the full sense of the term, and free from practices and devices tending to lead the widow to acts and declarations barring her right. Code §§2966, 3753; 2 Scrib Dow., 266 et seq., 268-272.

Judgment affirmed.