Doe D. Burton v. Wright

¶1According to the view which the court takes of this case, it has no occasion to consider the question presented in the argument, whether the marriage of Elizabeth Wright the defendant, first to Robert Clark and afterwards to Walter Wright, was, or was not, a valid marriage in either instance. Because as the plaintiff and defendant in the *59 action. both claim under Walter Wright and derive their legal title to their respective portions and estates in the premises referred to from him, the plaintiff as the purchaser of the premises at the administrator's sale under the order of the Orphans' Court for the payment of his debts, subject to the defendant's right of dower, as his widow, therein, and the defendant as his widow, who afterward applied to the court and had her dower, as his widow, allotted and assigned to her by metes and bounds in the premises so sold, purchased by the plaintiff and conveyed to him under the order of the court, we consider that they are each concluded and estopped by the proceedings in the Orphans' Court, from controverting in this action between them, the right, title, and estate of the other in the lands and tenements in question, or from setting up any claim to any share, or estate therein, except such as they respectively took and derived under these proceedings; especially as neither party has shown, or attempted to adduce any other right, or title to the premises, or any part of them. We have already expressed on the motion for a nonsuit, our opinion of the title of Walter Wright at the time of his decease in the premises under the facts proved; but even if it were defective, or altogether insufficient, it would not be competent for either party in this suit to impeach, or deny it, for the reasons just stated. The counsel for the plaintiff, however, has contended that the administrator of Walter Wright was but a trustee under the order of the Orphans' Court for the sale of the land for the payment of his debts, and as such, he had no power to sell and the court had no authority to direct the sale of the premises subject to the right of the defendant, as his widow to dower therein. But under the statute the court would have had no power to order the sale of the land free and discharged of her right, or claim of dower, or without such a reservation or condition, unless she has, previous to the order of sale, appeared in Court and elected to take the interest on the one-third of the purchase money for the *60 term of her life, in lieu of her dower, and expressly waived the assignment of it by metes and bounds. We have therefore no hesitation in saying that the court had ample power and discretion under the statute made and provided for in such cases, to order the sale of these premises, or any part of them, for the payment of the debts of the deceased, Walter Wright, by his administrator, subject to the right of dower of the defendant as his widow in the same; and the plaintiff having become the purchaser thereof with full knowledge of this reservation and condition, and having afterward on the confirmation of the sale by the Court, taken a deed by the order of the Court, containing the statement, or recital that he had bought the same, and that the same was conveyed to him subject to such right and reservation, these orders and decrees of the Court in the premises are final and conclusive in regard to the matter and as to all questions necessarily involved in, or incident to them; such as the question whether she was legally married to the deceased Walter Wright, and was lawfully entitled as his widow to dower in the premises, unless appealed from by him, and which not having been done, they cannot now be drawn in question by him here, or elsewhere. Rev. Code, 314,Sec. 16. By force of another provision in the same statute, he took under the sale all the estate, title, and claim which the deceased, Walter Wright had in the premises at the time of his death either in law, or in equity, and no more, and you know that was subject to his wife's right of dower, the instant he died, provided he left a widow to survive him, which the plaintiff is not permitted now to dispute; for he is precluded and estopped by these proceedings in the Orphans' Court, as we have before stated, from denying in this action between them, that the defendant is his widow, and as such, was lawfully entitled to be endowed out of the premises so purchased by him. But this principle of estoppel does not apply in this case alone to the plaintiff, for the counsel for the defendant on her part has also sought to *61 invalidate, in the course of his argument, the title and estate of the plaintiff in the premises acquired under the sale of the administrator as ordered by the Orphans' Court, by impugning the right of Walter Wright himself to them in his life time and attempting to show that at the time of his death he had no legal and valid title to them; and this too, notwithstanding by his own pleadings on the record, he has specially restricted his defence to that portion of the premises, which was afterwards assigned to her by, and under the order of the Orphans' Court upon her own application, as and for her dower therein, as the widow of the said Walter Wright. But having, subsequent to he purchase of the premises by the plaintiff, made her application to the Court for the assignment of her dower as the widow of Walter Wright, by metes and bounds out of his lands and tenements so bought and then held and owned by the plaintiff and had her one third part assigned to her out of them, and having in this action waived and renounced all claim to any other portion of the premises, and by the pleadings and issues joined upon the record, specially restricted and limited her defence to the part so assigned to her, she is likewise precluded and estopped in this suit under these circumstances and the proceedings in the Orphans' Court, from impeaching the title and estate of Walter Wright in the premises, and of the plaintiff acquired under the sale to him by his administrator, or from setting up any claim or title on her own part to any portion of the premises whatever, other than that which was so assigned to her under the order of that Court, to hold for the term of her life, as and for her dower therein. And as the plaintiff has no right to the possession of this part of the premises, and is not entitled to recover it in this action, and as the proof on all the points upon which the case legally depends, is record evidence about which there can be no dispute, or controversy, if they were satisfied such were the facts of the case, then the verdict under the issue joined should be not guilty. *62