The opinion of the Court was delivered by

In a case like the present, where parties stand entirely upon their technical rights, and these are dependant upon the exact facts of the case, it is to be regretted that so much has been left to mere inference, or as to which the Court must be governed entirely by presumption.

It appears from the “ case ” submitted to this Court, that II. A. Jones was seized of valuable real estate, and was the owner of a large number of slaves and other personal property; that some time in 1860, judgments were obtained and duly entered *385up against bim to tbe amount of $17,000; tbat after these-were entered up, to wit, on December 19, 1860, he intermarried with Nellie H. Jones, the demandant; that after the marriage other judgments to the amount of $20,000 or 130,00o1 were obtained and duly entered up against him; that these latter ' judgments were obtained early in 1861; that executions were duly issued on all of these judgments; that about March, 1861, H. A. Jones and wife left the State and never returned; that all the records in the proceedings in relation to said judgments were destroyed by fire at Abbeville, in November, 1872; that from such secondary evidence as could be obtained, it appears that the executions issued under the above judgments were duly levied on the real and personal estates of IJ.-A. ♦ Jones; that the land appears first on the list of property as advertised for sale by the Sheriff; that the land and slaves were sold on sales-day in May, 1861; that the land was sold for about $9,000 or $10,000; that there were thirty-six slaves sold on that day, the average value of which was $500; that the remainder of the personal estate was sold several days after this sales-day, and that after all the proceeds of sales were applied, there was still a deficiency of about $10,000; and that H. A. Jones has died, leaving Nellie H. Jones, his widow, surviving him, who in this proceeding demands her dower in the lands of H. A. Jones, her husband, sold as above.

The Court has been left entirely to conjecture as to theTrue amount due on the oldest of the above judgments at the sale in May, 1861. If these judgments had been obtained early in 1860, the $17,000 might, by interest, have increased with costs to over $18,000, and may have reached the sum of $18,500. If the judgments had been obtained in ...December, 1860, the sum may not have been over $17,500. There is nothing, however, in the “Case” which shows whether $17,000 was an interest-bearing sum or the total amount of principal, interest and costs, at the date of the sales in May, 1861. As to the sale of the slaves on sales-day, in May, 1861, the statement in the “ Case ” is that there were thirty-six of them sold at an average value of $500 each. This is all the evidence on the subject, and it would be arbitrary for the Court to fix any other *386than thirty-six as the true number, and $500 as the average v;alue. The Court must, therefore, fix the amount of the sale of the slaves on sales-day in May, 1861, at $18,000. It must, therefore, be held that the slaves, sold on sales-day in May, 1861, as the property of EL. A. Jones, under these executions, brought the sum of $18,000, an amouut sufficient to extinguish the executions issued under ante-nuptial judgments, so far as there has been any evidence to fix the amount due on them at that date.

This Court concurs with the Circuit Judge in holding that tlie lien of these ante-nuptial judgments was paramount to the claim •of dower in this case. This position is fully sustained by the authorities to which he refers in the Circuit decree. Park on Dower, 236; Scrib. Dower, 572; Freem. Judg., § 361. The doctrine on this subject is correctly stated by Mr. Scribner (vol. 1, p. 572) as follows : “Where a judgment lien is acquired against the husband’s land prior to his marriage, and the land is sold subsequently thereto in satisfaction of the judgment debt, the right of dower of his wife in the land is defeated.”

While there is some difference between the statements in the Circuit decree and in the “ Case” before this Court, as to the number of slaves sold, the same conclusion has been reached— that there was ample personal property sold on that day to pay off these older judgments if the proceeds had been so applied. When the widow demands her dower in her husband’s land, and shows seizin of the husband, her marriage with him and his death, she is entitled to her dower unless the respondent •can show afvrmatwel/y something which defeats her claim. The burden of proof is then on him. “ The obligation of proving any fact lies upon the party who substantially asserts the affirmative of thelfesue.” 1 Green. Evid., § 74. “ It applies to every fact which is essential or necessarily involved in that proposition.” Ibid., note. Wilder v. Cowles, 100 Mass. 487. Now the propositions on which respondent relies in this case are, first, that there were ante-nuptial judgments against the husband; and second, that this land was sold under them, or one of them. Unless these two things are made to appear affirmatively, the land is liable to dower. It cannot be inferred *387that tbe land was sold first because it was first on tbe list of advertised property, especially wben tbe writ of fi-fa mentioned tbe property (if it was properly made out) in tbe reverse order, “ goods and chattels” being first mentioned and after-wards tbe lands, etc.

Neither is it a safe presumption that creditors sold tbe land first because it was their interest to do so. It may be safely presumed that the Sheriff did his duty, and sold for cash, each sale standing by itself and for itself, as each separate article or piece of property was sold. Tbe Sheriff became, wben tbe property was knocked down to a bidder, prima, facie liable for tbe proceeds, and if in fact tbe money was paid afterwards, tbe application must have been made as of the very instant tbe sale was made. This applies to tbe land as well as tbe personal property. If, in fact, tbe land bad been put up and bid off first, a subsequent compliance by tbe purchaser would have defeated tbe claim of dower, and made bis title good. If tbe personal property bad been put up and bid off first, then a subsequent compliance with the bid would have settled and paid off tbe older judgments and executions; and their bens on tbe land would have been just as effectually extinguished as if tbe money bad then and there been paid wben tbe bid was made.

If there had been no other property of tbe judgment debtor sold on sales-day in May, 1861, except this land for $9,000 or $10,000, there could be no doubt that tbe land was sold to pay these judgments and executions, amounting to $17,000, but personalty was sold on tbe same day and more than was sufficient to pay off these judgments and executions which antedated tbe marriage, and tbe Court cannot presume, in tbe absence of any proof on tbe subject, that tbe land was sold first, and tbe personalty last. If all tbe property sold had been land, and if instead of a number of slaves land to tbe value of $18,-000 bad been sold in addition to tbe land now in dispute, by what principle could it now be held that these lands now in dispute were first sold ? Clearly no such conclusion would follow without throwing on tbe widow tbe alternative of losing her dower in $28,000 worth of land when it could have been extinguished only, at most, in $17,000 worth, or of proving *388the executions to each parcel, as the cases came up. The burden of proof is not on her but on him who alleges that her right has been extinguished by a sale under an existing lien. To deprive one of rights there must be proof, something more than a probability, that creditors did what they now know to have been their interest to do, but of which they have not preserved' the evidence. At most nothing more than a probability has been shown, and this Court does not think that this is sufficient to defeat the widow’s right of dower.

It is therefore ordered and adjudged that the judgment of the Circuit Court be reversed, and that the case be remanded to the Probate Court for such further proceedings as may be necessary and proper to carry out the judgment of the Probate Court herein.

dissenti/ag. I cannot concur in the conclusion reached by the majority of this Court, and on the contrary, think that the Circuit Judge has taken the correct view of the case. I do not deem it necessary to add anything to what has been said by the Circuit Judge, except to say that, in my judgment, there was no sufficient evidence to warrant the conclusion that the personal property sold on the day the land was sold, brought an amount sufficient to satisfy the ante-nuptial judgments? Those judgments amounted to seventeen thousand dollars, but whether this was the amount at the time of the sale or the amount at the time of the recovery of • the judgments does not distinctly appear. The statement in the “ Case” is that “ during the year 1860, and prior to the marriage, judgments to the amount of $17,000 were obtained, and this would indicate that seventeen thousand dollars was the amount recovered, which, of course, would bear interest from the time of the recovery. But exactly when the judgments were recovered does not appear, except that it was some time in 1860, prior to the marriage, which took place on December 19th, 1860. It does, however, appear, from the Statute Book, that at that time the Court for Abbeville, where those judgments were recovered, was appointed to be held on the first Mondays in March and October in each year (12 Stat. *389262) and if the judgments were recovered in October, 1860, the interest to the first Monday in May, 1861, when the property was sold, to say nothing of the costs, wonld carry the amount over eighteen thousand dollars. And as it is not pre tended that the personal property sold on that day brought more than eighteen thousand dollars, there would still be a balance due on the ante-nuptial judgments, even after applying to them the whole amount of the proceeds of the sale of the personal property, which would authorize the sale of the land under those judgments.

But in addition to this, I do not think that the evidence is sufficient to justify the conclusion that the personal property sold on the day the land was sold brought the sum of eighteen thousand dollars. The only testimony on this point, as derived from the “ Case,” is that thirty-six slaves were sold on the day the land was sold — the other personal property having been sold on a subsequent day — “ and the witnesses estimated the average value of a lot of negroes at that time at $500” — not that such was the average value of this fa/rticula/r lot of negroes. Hence, in order to reach the conclusion that they brought eighteen thousand dollars, we must first infer, without any evidence from which to draw such inference, that this particular lot of negroes were of the average value, and next that they brought a full average value at Sheriffs sale- — an inference not justified by experience, as it very frequently happens that property does not bring its value under the Sheriffs hammer.

It seems to me, therefore, that the judgment of the Circuit Court should be affirmed.

Judgment reversed.