September 30, 1915. The opinion of the Court was delivered by
MR. CHIEF JUSTICE GARY.
There is only one respect in which the judgment of the Circuit Court must be reversed, to wit, as to the right of Mrs. Minnie E. Evans to claim dower.
The land described in the complaint was conveyed by E. H. Frost Company in 1881 to W.D. Evans, R.M. Pegues and John K. Pegues, in consideration of $7,000, no part of which was paid in cash, but the said grantees executed a mortgage of the premises to secure the purchase money.
The grantees entered into possession of the land, and operated a farm during the years 1882, 1883 and 1884, under the firm name of John K. Pegues Company.
At the end of the year 1884, no part of the purchase money having been paid, the three grantees entered into a contract in writing, whereby the said R.M. Pegues assumed the payment of the indebtedness of John K. Pegues Co., to the extent of $11,000, and assumed payment of the whole purchase money of the lands conveyed by E.H. Frost Co.
The mortgage executed by the grantees to E.H. Frost Co. was afterwards paid in full.
The respondents rely upon the case of Groce v. Ponder, 63 S.C. 162, 41 S.E. 83, in which it was held that where a husband buys lands upon which there is a mortgage which it is agreed he shall pay, and the transaction is arranged by his taking a deed to the land, and at the same time giving a mortgage to the holder of the first mortgage, which is marked satisfied, the transaction being simultaneous, there is no such seizin in the husband, as will give the wife dower against the mortgage lien. (Italics added.)
That case was properly decided, for the reason that the agreement under which the transaction took place, was made before the husband became seized of the fee in the land. In the present case, the mortgage executed in favor of E.H. Frost Co. for the purchase money was paramount to the right of Mrs. Evans to claim dower, but that mortgage has been paid in full under an agreement between the grantees, each of whom was liable for the purchase money.
After the husband becomes seized in fee, he can not enter into any agreement with other parties that will affect his wife's right of dower. Grube v. Lilienthal, 51 S.C. 442, 29 S.E. 230.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, in so far as it decides that Mrs. Minnie E. Evans is not entitled to dower in the one-third of the lands, of which her husband was seized in fee in 1881, and that in all other respects, for the reasons therein stated, the judgment of the Circuit Court is affirmed.
MR. JUSTICE GAGE concurs in the opinion announced by the CHIEF JUSTICE.
MR. JUSTICE HYDRICK concurs in the result.