The opinion of the court was delivered by
Mr. Chief Justice Simpson.The petitioner, appellant, demanded dower in certain lands in the possession of the defendant, Janie C. Todd. This demand was allowed in the Probate Court, but, upon appeal to the Circuit Court, the decree of the Probate Judge was reversed, except as to a small portion of the land, described in the petition. The case is now before us on appeal from the decree of the Circuit Judge, in so far only as said decree reversed and overruled that of the Probate Court. This appeal, therefore, does not involve that portion of the Circuit decree which allowed the claim of dower in a certain part of the land.
The facts of the case were as follows: Mr. Z. L. Holmes purchased a tract of land, containing some one hundred and twenty acres, at the sale of the real estate of the late Col. J. IT. Irby, deceased, sold for partition under an order from the court. He gave bond to commissioner in equity for the purchase money, which, under the act in such cases, was secured by a statutory mortgage — act of 1791. Robert Seibert, the husband of the demandant, also purchased at the same sale a small portion of land — some 10 7-10 acres — this purchase being also secured by the statutory mortgage aforesaid. Some time after this, Mr. Holmes sold his land to Mr. Seibert, the purchase money, however, to the commissioner had not been paid, nor the statutory mortgage satisfied, or in any way released. Some time after this, Seibert went into bankruptcy, and these lands were sold by his assignee, and the proceeds applied to the unpaid purchase money represented by the bonds of Holmes and Seibert in the hands of the commissioner or his successor, at which sale S. R. Todd, jr., the then husband of the defendant, Janie C. Todd, became the purchaser. Todd subsequently died, and also Robert Seibert, and the petitioner, the widow of Seibert, commenced the action below against Janie C. Todd, the widow of said S. R. Todd, jr.
The Circuit Judge, in overruling the decree of the Probate Court, finds as a matter of fact, “that the assignee of Seibert sold these lands under the decree of the Bankrupt Court, to satisfy *210the liens thereon and to pay the other debts of the bankrupt; that these liens were duly established in the Bankrupt Court, and that the lands were sold by order of the court, and the proceeds applied first to their extinguishment — all this in the life-time of the debtor, the demandant’s husband.” Upon these findings, he adjudged that demandant’s right to dower in said lands was defeated. The appeal questions the findings of fact supra, and on that account first denies the application of the principle of law mentioned. It also denies that the right of dower could be defeated in such cases, except by a strict foreclosure, claiming that ¡the bankrupt sale was not such a foreclosure.
In looking into the testimony, we think the findings of his honor must be sustained, under the established rule in such cases, there being neither an entire absence of evidence, nor a manifest preponderance against them. The purchase money of these lands due the commissioner had not been paid; the'proceeds, or at least a large portion thereof, were applied by the assignee to the bonds representing the original purchase money. We think the Circuit Judge was warranted in holding that these claims were established before the Bankrupt Court, and that the sale took place under the orders of said court; and that, therefore, it was substantially a foreclosure sale.
Now, what is the law of dower under such circumstances? No doubt of the general doctrine, that where a man is seized of lands during coverture, with no lien or encumbrance attaching, or in existence at the time of seizin, the wife has an inchoate right to dower, which becomes complete upon her surviving her husband. And in such a case, we know of no law or power that could defeat this right, except the consent, legally expressed, of the wife 'herself. Where, however, the seizin is accompanied at its inception with a lien, mortgage, or judgment, the inchoate right of dower of the wife attaches in subordination and subject to said lien. Jones v. Miller, 17 S. C., 380. And if it becomes necessary to sell the land to pay off this lien, and it is legally sold for such purpose, the dower in the land is gone, whatever may be the rights of the widow as to an interest in the surplus arising, if any.
A mortgagee or a judgment creditor having a lien prior to the *211attaching of the inchoate right of dower of the wife.of the debtor, has such lien upon the whole land, and has the right to sell the whole in payment of such lien ; and when such sale is made by proper proceedings, the purchaser takes the land free from said lien, and as well from all others. When the sale is made after the death of the husband, and the right to dower has become complete, then, if there be a surplus, the widow may claim dower in that, or she may redeem and receive her dower; but where the sale is made in the life-time of the husband, and in foreclosure and satisfaction of the lien, the land cannot afterwards be pursued for dower on the part of the widow ; and if there should be a surplus, that has already passed into the hands of the husband, before the inchoate right has ripened into a perfect right.
Now, applying these principles to the facts of this case, there is no doubt as to the correctness of his honor’s ruling below. Here, there was a statutory lien or mortgage over the land at the inception of demandant’s husband’s seizin, to which her inchoate right was subject and subordinate. This mortgage gave a right of sale, free from the encumbrance of said inchoate right of dower. Has such sale been made? The Circuit Judge has so found, and that it was made in the life-time of the husband. This finding we have not felt at liberty to disturb. It follows, therefore, that the decree of his honor, predicated upon the facts found, must be sustained. The cases of Tibbetts v. Langley Manufacturing Company (12 S. C., 465), Jones v. Miller (17 Id., 380), and Agnew v. Renwick (27 Id., 562), cited by appellant, do not conflict here; on the contrary, when analyzed, thej7 sustain our conclusion. In the last case, the land was not sold at a foreclosure, but ata private sale. In the next, the sale of the personal property was held sufficient to extinguish the ante-nuptial judgment. And in the other, the mortgage lien attached after coverture.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.