The opinion of the court was delivered by
Mr. Chief Justice McIveR.All the cases named in the title were actions for dower, and as they all grew out of the same state of facts, and rest upon the same principles of law, they were heard together both on the Circuit and in this court, and will *414therefore bo considered together. By agreement the cases were heard upon the pleadings and an agreed statements of facts, set out in the “Case,” by the court without a jury. The plaintiff, as the widow of Alfred Holley, claims dower out of the several parcels of land in the possession of the several defendants in the above stated cases, which several parcels originally constituted a single tract of land known as the Hollow Creek land. ' From the “agreed statement of facts,” which should be incorporated in the report of this case, it appears that some time prior to the year 1839, the said Alfred Holley and one William H. Carey purchased jointly the Hollow Creek land, and the same was conveyed to them as tenants in common, and on the ftth of March, 1841, Alfred Holley conveyed his undivided one-half interest to Wise Holley. Subsequently, W. H. Carey having died, his son, John L. Carey, instituted proceedings in the Court of Equity against the other heirs at law of W. H. Carey, together with Alfred Holley and Wise Holley, for the partition of said land, which resulted in a sale of said land under the orders of said court. At such sale one John Holley became the purchaser, and having paid the purchase money, received titles from the commissioner in equity, and the defendants in the several cases above stated claim under the said John Holley. The purchase money was divided amongst the several parties to the proceedings in pursuance of the provisions of the decree of the court under which the sale was made, but the plaintiff herein was not a party to the proceedings, and neither received any portion of the proceeds of the sale, nor was there any provision made for the protection of her inchoate right-of dower.
Alfred Holley, the husband of plaintiff, having died in February, 1881, these actions were commenced (when, is not stated) by the plaintiff to recover her dower in the several tracts held by the several defendants. The Circuit Judge held that while a sale for partition would bar the contingent or inchoate right of dower of the wife of one of several tenants in common under proceedings to v'hich he was a party, though the wife was not a party, yet in this case, inasmuch as Alfred Holley had sold and conveyed to Wise Holley his undivided interest in said land before the proceedings for partition were instituted, the plaintiff *415was not barred of such right, because although Alfred Holley as well as Wise Holley were parties to the partition proceedings, yet neither, nor both of them together, represented the rights and interests of the plaintiff in such proceedings. He therefore rendered judgment in favor of the plaintiff in each of said cases. From these judgments the several defendants appeal upon the several grounds set out in the record; and the plaintiff, according to the proper practice, gives notice that if the Supreme Court should find itself unable to sustain the judgments appealed from upon the ground taken by the Circuit Judge, the plaintiff will ask this court to sustain said judgments upon other grounds likewise set out in the record.
These various grounds raise substantially the following questions : 1st. Whether the wife of one tenant in common can be barred of her inchoate right of dower, by a sale for partition under proceedings instituted by another tenant in commop against her husband and the other co-tenants, but to which the wife was not a party. 2nd. If so, whether the same rule would apply where the husband, though made a party to the proceedings for partition, had previously conveyed his undivided interest to a third person who was also made a party. 3rd. Whether the Circuit Judge erred in finding as matter of fact that William H. Carey died testate. 4th. If not, whether the former Court of Equity had the power to sell lands of a testator for partition amongst those entitled thereto; and if so, whether the inchoate right of dower of the wife of one of the tenants in common would be barred by such sale under a proceeding to which she was not a party.
1 As to the first question, we are of opinion that, while the wife of one of several tenants in common has an inchoate right of dower in her husband’s portion of the real estate held in common, yet such right is subordinate to the paramount right of the other tenants in common to have partition of the common property in any of the modes by which such partition may be lawfully made. Hence if a sale for partition becomes necessary, the wife’s inchoate right of dower in the land is barred, even though she is not a party to the proceedings for partition; and the purchaser at such sale takes his title disen*416cumbered of such subordinate right of dower. As is said in 1 Washb. Real Prop., book I., chap. 7, sec. 2, par. 10, page 185, of 3rd edit.: “The wife of a tenant in common holds her inchoate right of dower so completely subject to the incidents of such an estate, that she not only takes her dower out of such part only of the common estate as shall have been set (off) to her husband in partition, but if, by law, the entire estate should be sold in order to effect a partition, she loses by such sale all claim to the land, although no party to such proceedings.” Whether in such a case some provision should be made for the protection of the wife’s inchoate right of dower, in the event it should after-wards become absolute out of the husband’s share of the proceeds of the sale, is not a matter now before us, and will not therefore be considered.
So far as our experience extends, this rule has always been recognized in this State, and we are not informed that it was ever before questioned. The reason of this rule is this: the right of the other co-tenants to demand partition being paramount to the inchoate right of dower in the wife of any one of the co-tenants, whenever the paramount right is exercised, the subordinate right cannot properly be allowed to interfere with or abridge the full enjoyment of the paramount right. Inasmuch as the inchoate right of dower springs out of, and is necessarily dependent upon, the concurrence of marriage and seizin of the husband during coverture, it must necessarily depend upon and be qualified by the nature of such seizin. If, therefore, the nature of the husband’s seizin be such as will not support the claim of dower — as, for example, the husband be seized as trustee — it is competent for the defendant in dower to show such defect in seizin as a defence to the claim of dower. See what is said in Whitmire v. Wright, 22 S. C., at page 451, commenting on the case of Gayle v. Price, 5 Rich., 525.
So also the husband’s seizin may be shown to be subject to the lien of a purchase money mortgage, and therefore not of such a character as will be sufficient to support the claim of dower as against such paramount right. Crafts v. Crafts, 2 McCord, 54. And the same doctrine applies where the inchoate right of dower is subordinate to the lien of a judgment recovered before the *417marriage. Jones v. Miller, 17 S. C., 380. Again, the rule is well settled that while a judgment against one of several tenants in common is a lien upon the undivided interest of such tenant in common, under which such undivided interest may be levied on and sold, yet such encumbrance is subordinate to the paramount right of the other tenants in common to demand partition, and if a sale of the undivided property is made for that purpose, the purchaser-takes his title freed and discharged from such subordinate encumbrance on the share of the judgment debtor, and the credit- or is remitted to his debtor’s share of the proceeds of the sale, even though the judgment creditor is not a party to the proceedings for partition. Keckeley v. Moore, 2 Strob. Eq., 21; Riley v. Gaines, 14 S. C., 454; Ketchin v. Patrick, 32 S. C., 443. See, also, Shiell v. Sloan, 22 S. C., 157.
Now, while these are cases of liens or charges upon the common property, or rather upon the interests of one or more of the tenants in common, and while the inchoate right of dower may not, properly speaking, be a lien, yet the principle upon which they rest is applicable here, to wit, that the enforcement of a paramount, right must not be interfered with or abridged bv persons holding subordinate rights, whatever be their chaiacter. Hence, as the inchoate -right of dower arises out of, and is dependent upon, the nature of the husband’s seizin, such inchoate right must necessarily be affected with any infirmities of such seizin, and be qualified by any paramount right, subject to which it has been acquired; and where, as in this case, the husband’s seizin was qualified by and subject to the paramount right of the other co-tenants to demand partition, the plaintiff’s inchoate right of dower, growing out of and dependent upon such seizin, was subject to the same qualification. When, therefore, the seizin of the husband was divested by the exercise of the paramount right of the other co tenants to demand partition, the inchoate right of dower was likewise destroyed, so far at least as the land was concerned, and the plaintiff was no more a necessary party for that purpose than is a judgment creditor of one of several tenants in common, in case of a sale of the common property for partition. Keckeley v. Moore, supra, where, as pointed out in the Circuit *418decree, the point here involved, though not discussed, was practically decided.
2 The second question involves an inquiry as to the effect of the sale by Alfred Holley to Wise Holley of his undivided one half of the common property prior to the institution of the proceedings for partition, under which the land was sold to John Holley. It seems to us that the conveyance to Wise Holley placed him in the shoes of Alfred Holley, invested him with the same seizin, subject to the same qualifications, with which his grantor, Alfred Holley, had previously been invested, and made him a tenant in common with the other joint owners Of the land. When, therefore, such seizin was divested by the sale for partition, the effect, so far as any subordinate right dependent upon such seizin was concerned, was the same as if the title and such seizin had remained in Alfred Holley. When the basis upon which the subordinate right of dower rested, was destroyed by the exercise of a right paramount to the inchoate-right of dower, such right necessarily fell with it, and could not be asserted against one claiming under a right paramount to it. We are therefore unable to see how the conveyance by Alfred Holley to Wise Holley could affect the question which we are called upon to determine.
The view taken by the Circuit Judge, that by reason of such sale the plaintiff’s inchoate right of dower was not sufficiently represented in the proceedings for partition, does not seem to us to be sound, for we do not think it is a question óf representation at all. If Alfred Holley had never sold and conveyed his undivided interest to Wise Holley, we would not be disposed to hold that the plaintiff’s inchoate right of dower was barred by the sale for partition, because, though she was not a party to the partition proceedings, yet her interest was represented therein by her husband, who was a party. On the contrary, our view is that such inchoate right of dower was defeated by the exercise of a right paramount to it; practically that such inchoate right of dower in her husband’s share of the common property was contingent upon the non-exercise of the paramount right to demand partition by a sale of the common property; but when such paramount right was exercised, the contingency upon which such sub*419ordinate inchoate right of dower rested could never happen, and hence it could never afterwards become absolute. Indeed, it would be anomalous to hold that the purchaser at a sale made under the exercise of a paramount right, should take his title subject to one claiming under a subordinate right. Under this view we do not see how it is possible that the transfer by Alfred Holley of his interest to Wise Holley prior to the proceedings for partition can affect the question; nor do we see any necessity for making the plaintiff a party to the partition proceedings, for she then had no such interest in the property sought to be partitioned as rendered her a necessary party, in any sense of those terms, and since the sale she never could have any such interest.
The third question, under the view which we shall take of the fourth, becomes wholly unimportant, and as it is a mere question of fact, will not be considered.
3 The fourth question has been so fully and satisfactorily discussed by the Circuit Judge in his decree (which should be incorporated in the report of this case), that we find it very difficult to add anything to what is there so well said. It is there shown that the power of the former Court of Equity to order a sale of land for' partition, owned by several tenants in common, cither as distributees of an intestate’s estate or otherwise, is not derived from, or dependent upon, the provisions of the act of 1791, but existed and was exer'eised long before the passage of that act, an instance of which will be found in the case of Dinckle v. Timrod, 1 DeSaus., 109, decided in 1784, seven years before the passage of the act of 1791. This was expressly decided in the case of Pell v. Ball, 1 Rich. Eq., 361, and the doctrine was recognized in the subsequent cases of Steedman v. Weeks, 2 Strob. Eq., 145, and Gibson v. Marshall, 5 Rich. Eq., 254. While, therefore, it may be true that the Court of Common Pleas, deriving its power in this respect only from the act of 1791, can only order a sale for partition in cases of intestacy, as has been held in the case.s of Crompton v. Ulmer, 2 Nott & McC., 429; Spann ads. Blocker, Ibid., 593; and Barns v. Branch, 3 McCord, 19, yet these decisions cannot affect, and do not purport to question, the long established, and as we may say the universally recognized, powers of the Court of *420Equity in this respect, under which, as is said by Harper, Ch., in Pell v. Ball, supra: “Titles have accrued and money has been paid and invested; thus involving perhaps the titles of a large portion of the property of the country.” We would not feel at liberty, at this late day, to disturb or even question what may be called a rule of property so long established, even if we entertained much graver doubts than we do of the authority of the rule.
We concur, therefore, in the conclusion reached by the Circuit Judge as to this matter : that the power of the former Court of Equity to order a sale for partition is not confined to cases of intestacy, and that the inchoate right of dower of the wife of one of the several tenants in common is defeated by such a sale, even though such wife be not a party to the proceedings for partition. But as we differ with the Circuit Judge as to the effect of the transfer of Alfred Holley’s interest to Wise Holley, as we have hereinbefore indicated, the judgments below must be reversed.
The judgment of this court is, that the judgment of the Circuit Court, in each of the cases stated in the title, be reversed, and that the complaints therein be dismissed.