Jeffries v. Allen

Citations

• 29 S.C. 501
• 7 S.E. 828
• 1888 S.C. LEXIS 159

Syllabus

<p>1. To secure a debt to B, A executed a mortgage of land with his wife’s dower renounced thereon. A then died, leaving his estate to his executors in trust, with power to mortgage. The executors made a mortgage of this same land to C, A’s widow renouncing her dower thereon, and with the money thus realized B’s mortgage was satisfied. Held, that the widow of A was entitled to both dower and homestead in this land in priority to C’s mortgage.</p> <p>2. The inchoate right of a wife to dower in her living husband’s land is released by renunciation as prescribed by statute; but after her husband's death, the right becomes complete, and may be divested only by deed.</p> <p>3. 0 was not subrogated to B’s rights under the prior mortgage, which was fully paid, and thereby extinguished.</p> <p>4. A widow cannot be deprived of her right to homestead in her husband’s lands by any act of his executors, nor by her receipt of rents and profits prior to the filing of a bill to marshal assets.</p> <p>5. The widow is not precluded from interposing the defence of usury by failing to tender the amount due; but she cannot interpose it in this case, because, having elected to take dower and homestead, she does not occupy any such position towards the debtor as would entitle her to rely on this defence.</p> <p>6. It having been admitted that the widow was entitled to dower and homestead in the surplus after payment of the C mortgage, it is too late to make the point that she is not entitled to homestead, because she owned other lands in her own right.</p> <p>7. Petition for rehearing refused.</p>