90 Ark. 351 | Ark. | 1909
(after stating the facts). I. The Constitution of the United States declares that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” Art. IV, § 1. And section 905 of the Revised Statutes of the United States provides' a mode for the authentication of such records, and declares that the “records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State' from which they are taken.”
Hancock National Bank v. Farnum, 176 U. S. 640, was a suit in Rhode Island on a judgment recovered in Kansas. Judge B’-ewer, in passing upon the duly authenticated record of the Kansas court, after setting out the provisions of the Constitution and the acts of Congress, said (quoting earlier decisions) : “It is held that the same effect is to he given to the record in the courts of the State where produced as in the courts of the State from which it is taken.” Our own court, in many decisions in suits in this State based on foreign judgments, has announced the same rule; and, indeed, no other rule in such cases could be announced. Hensley v. Force, 12 Ark. 756; Buford v. Kirkpatrick, 13 Ark. 33; Peel v. January, 35 Ark. 331; Lockhart v. Locke, 42 Ark. 17; Glass v. Blackwell, 48 Ark. 50; Williams v. Renwick, 52 Ark. 160; Hallum v. Dickinson, 54 Ark. 311.
Appellees rely upon these cases as authority for their contention that the duly authenticated record of the judgment of the district court of Oklahoma should have the same effect as if it had been a judgment rendered here removing the disabilities of nonage of the Sitterdings. But this is not a suit based on a judgment rendered in Oklahoma. Moreover, these decisions are not in conflict with, but, on the contrary, only declare and uphold, the view that the provisions of the Constitution and Revised Statutes above were only intended to and did establish a rule of evidence. The Supreme Court of the United States in Cole v. Cunningham. 133 U. S. 107, at page 112, says: “The Constitution did not mean to confer any new power on the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of the States domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can be issued upon such judgments without a new suit in the tribunals of other States, and they enjoy, not the right of priority or privilege or lien which they have in the State where they are pronounced, but that only which the lex fori gives to them by its own laws, in their character of foreign judgments.”
In Wisconsin v. Pelican Ins. Co., 127 U. S. 265, at pages 291 and 292, it is said: “Those provisions establish a rule of evidence, rather than of jurisdiction. While they make the record of a judgment, rendered after due notice in one State, conclusive evidence in the courts of another State, or the United States, of the matter adjudged, they do not affect the jurisdiction, either of the court in which the judgment is rendered, or of the court in which it is offered in evidence. Judgments recovered in one State of the Union, when proved in the courts of another government, whether State or National, within the United States, differ from judgments recovered in a foreign country in no other respect than in not being re-examinable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties.”
The Supreme of Georgia says: “This clause (‘full faith and credit’) is not to be received in the fullest import of the terms. It is referable to such records, etc., as pleadings and evidence. Any other construction, which would give the same effect to a foreign judgment as to our own, would, indeed, be to give to the laws of one State complete operation in another— would be to make a judgment in one State bind property in another.” Joice v. Scales, 18 Ga. 725; 23 Cyc. 1545, 1546, and 1556, 1557, and cases cited in notes; McElmoyle v. Cohen, 13 Pet. 312; Brengle v. McClellan, 7 Gill & J. 434, 438; Shelton v, Johnson, 36 Tenn. (4 Sneed) 672-682.
Conceding, then, the validity of this foreign judgment, we have given it the full faith and credit that it must receive when we consider it conclusive evidence that the district court of Oklahoma has adjudged a majority status for the Sitterdings before they were twenty-one years of age. Bowen v. Johnson, 5 R. I. 112; Olney v. Angell, 5 R. I. 198. But that is not the equivalent of a judgment here fixing such status for the minors. Far from it. Under our statute, an infant does not attain his majority until he is twenty-one years old. Kirby’s Digest, § 3756.
II. The proof is, that the deed of the Sitterdings to appellee, conveying the lot in controversy, was executed in Oklahoma, and appellees contend that the effect of the judgment was to make the deed an irrevocable conveyance. The judgment of a court under a statute authorizing the removal of disabilities of nonage could not be of any higher authority, or possess greater sanctity, than a direct enactment declaring majority at an age of 21 years. Proctor v. Hebert, 36 La. Ann. 250. That enlightened sentiment of international comity, based upon the principles of right and justice as well as good policy, generally causes the courts of one State to enforce, as far as practicable, ¡.he laws of another as to contracts and other transactions therein between pnvate individuals. Minor on Conflict of Laws, § § 3 and 4. But this rule of private international law or comity can not be invoked “where the enforcement of the foreign law would contravene some established and important policy of the State of the forum,” nor where the question relates to the transfer of the title to real property. Minor on Conflict of Laws, § 5. Smead v. Chandler, 71 Ark. 505. Says Mr. Minor: “Since immovable property is fixed forever in the State where it lies, and since no other State can have any jurisdiction over it, it follows necessarily that no right, title or interest can be finally acquired therein, unless assented to by the courts of that State, in accordance with its laws.” Minor on Conflict of Laws, § it ; Oakey v. Bennett, 11 How. 33; 1 Wharton on Conflict of Laws, § 276 b, p. 617. This general principle has been often recognized by this court. McDaniel v. Grace, 15 Ark. 465; Clopton v. Booker, 27 Ark. 482; Williams v. Nichol, 47 Ark. 254.
It has long been the rule in this State that an infant’s deed conveys title to his real estate subject to his right to disaffirm when he becomes of age. Bagley v. Fletcher, 44 Ark. 133; Horrad v. Myers, 21 Ark. 592. See also Stull v. Harris, 51 Ark. 294; Watson v. Billings, 38 Ark. 278; Fox v. Drewry, 62 Ark. 316; Tobin v. Spann, 85 Ark. 556.
It is deemed a wise policy of our law for the protection of the landed estate of infants to give them the untrammeled right to avoid their deeds on attaining their majority. The right is often their only shield against fraud, and their only remedy against improvident contracts. It has been held of such transcendent importance that an infant will not be estopped to' assert it even by his own fraudulent representations as to liis age after he appears to be full grown. Tobin v. Spann, 85 Ark. 536. If the consideration for the deed has passed out of his hands, he may rescind without returning it. 22 Cyc. 537“; St. Louis, I. M. & S. Ry. Co. v. Higgins, 44 Ark. 293. See also Stull v. Harris, 51 Ark. 294.
No rule of comity would justify ignoring this settled policy upon which property rights have been grounded, to meet the demands of any case, be it ever so meritorious and exceptional in its facts. 2 Wharton on Conflict of Laws, § 428 a. So, if we consider the deed and its covenants as one instrument, and as an executed contract transferring the title to land, then, as we have seen, the lex rei sitae prevails. Minor on Conflict of Laws, § 11. note 5; § ■§ 12 and 174; 1 Wharton on Conflict of Laws, § 276a, 276b; Sneed v. Ewing, 5 J. J. Marshall, 460; Thompson v. Kyle, 23 So. 12.
But appellees argue that the covenants for title are separate contracts, creating personal obligations, and therefore governed bj> the lex loci contractus. In Bagley v. Fletcher, supra, it is said that “the covenants in a deed constitute no part of the conveyance, but are separate contracts.” In the same case it was said that the infant “was not bound by the covenants contained in her deed,” and that these covenants were void. Hence, by the authority of this case, even if the covenants are considered as independent contracts, they are-void, or, rather, voidable, just as is the deed, and fall with it when it is disaffirmed. If an infant has the right to disaffirm his deed on reaching majority, as we have s'o often held, it would be incompatible with such holding to say that he could enter into covenants in the same deed, or otherwise, that would defeat such right. See Connor v. Murray, 84 Mass. 202, at p. 204. Therefore, even if these covenants create obligations that would, generally speaking, be governed by. the lex loci contractus, still that law would have to give way to the local policy as declared by this court.
The covenants under consideration, however, are not personal in the sense that the obligations incurred under them are governed by the law concerning movables. • There are many contracts relating to real estate that are so governed, For example; covenants of seisin, of right to convey and against incumbrances, and executory contracts for deeds or other instruments containing covenants that do not run with the land. All these contracts, in the absence of statutory law or an expressed intention to the contrary, are usually governed by the law of the place where such contracts are made. Such is not the case, however, with contracts containing covenants that run with the land — as, for instance, covenants of warranty and for quiet enjoyment; or covenants that can only be performed where the land lies, as, for instance, to defend title, to pay taxes, to repair, etc. These are governed by the law of the place where the land is situated. Minor on Conflict of Laws, § 185.
This court early recognized the distinction between personal covenants (using the word “personal” with reference to situs) and covenants that run with the land, and therefor savor of the realty. In Logan v. Moulder, 1 Ark. 313, we held that covenants of warranty belong to the latter class. See also Ross v. Turner, 7 Ark. 123. We believe the authorities with practical unanimity -hold to this rule, observing the distinction announced by this court between personal covenants and those that run with the land. Rawle on Covenant for Title, •§ § 202 and 213; 1 Wharton on Conflict of Laws, § 276d, pp. 630, 631.
A careful analysis and differentiation of the case cited by the learned counsel for appellees will discover, we think, that, when this distinction is kept in mind, they are not in conflict with the doctrine we have expressed. As Mr. Wharton says: “The distinction, as affecting the governing law, between questions that relate to the title to the property and those that relate merely to the personal rights and obligations of the parties has been expressly recognized in a number of cases.” 1 Wharton, j Conflict on Taws, § 276b, p. 626. He cites, as supporting this) view, the leading case of Polson v. Stewart, 167 Mass. 211.
We cannot review all the cases, but the above case of Polson v. Stewart is especially relied on, and may be taken as an example of them all. It was a suit for specific performance, to enforce a covenant made by a husband with his wife in North Carolina, by which he contracted to surrender all of his marital rights in certain lands of hers in Massachusetts. The contract was lawful in North Carolina, where the parties were domiciled, but would have been void according to the laws of Massachusetts. The court said: “It is true that the laws of the States can not render valid conveyances of property within our borders which our laws say are void, for the plain reason that we have exclusive power over the res. Ross v. Ross, 129 Mass 243, 246; Hallgarten v. Oldham, 135 Mass. 1, 7, 8. But the same reason inverted establishes that the lex rei sitae cannot control personal covenants, not purporting to be conveyances, between persons outside the jurisdiction, although concerning a thing within it. Whatever the covenant, the laws of North Carolina could subject the defendant’s property to seizure on execution, and his person to imprisonment for a failure to perform it. Therefore, on principle, the law of North Carolina determines the validity of the contract.” 1't will be noticed that the basis of the opinion was that the contract to release the marital rights was a personal covenant, and should be so treated in a suit for specific performance. The court cited with approval Ross v. Ross, 129 Mass. 243, wherein it is said: “A capacity to take and have differs from a capacity to do and contract; in short, a capacity of holding from a capacity to act. Generally speaking, the validity of a personal contract, even as regards the capacity of the party to make it, as in the case of a married woman or an infant, is to be determined by the law of the State in which it is made. * * * And the validity of any transfer of real estate by act of the owner, whether inter vivos or by will, is to be determined, even as regards the capacity of the grantor or testator, by the law of the State in which the land is situated. * * * But the status or condition of any person, with the inherent capacity of succession or inheritance, is to be ascertained by the law of the domicil which creates the status.”
All of which shows that the Supreme Court of Massachusetts, in Polson v. Stewart above, was speaking of the capacity of the parties to enter into a personal covenant for the release of the husband’s marital rights. Mr. Minor, speaking of this case, says: “The question was not of the formal validity of the covenant, but of the capacity of the parties.”
The case of Polson v. Stewart is invoked by appellees as authority for the doctrine that the Sitterdings might enter into valid personal covenants in Oklahoma that would prevent their annulling conveyances that were voidable in Arkansas, where the land is situated; but, as we view it, the holding is expressly to the contrary, for it says: “The laws of other States can not render valid conveyances of property within our borders which our laws say are void.” We can see no analogy whatever between 'contracts containing covenants for the relinquishment of marital and dower rights, or Scotch terce, and covenants of warranty for title in fee. The one creates purely personal obligations, which are governed by the proper law for personal covenants; the other creates obligations that follow the res, partake of its nature, and are therefore governed by the proper law for covenants real. I Wharton, Confl. of Taws, 631; Roberson v. Queen, 11 S. W. 38; Woodward v. Woodward, 11 S. W. 892; Walling v. Christian & Craft Gro. Co., 47 T. R. A. 608.
A covenant of warranty, says Mr. Rawle, runs with the land “for the protection of the owner in whose time the breach occurs, and until then, passing with the estate by descent or by purchase, by voluntary or by involuntary alienation, and may therefore of course be enforced, not only by the covenantee and his representatives, but by heirs, devisees and alienees, who claim under the seisin vested in him.” Rawle on Covenants for Title, § 213. Not so with personal covenants.
As eviction is necessary to a breach of warranty, it can not be ascertained that there has been an eviction under a paramount title except by the law of the situs of the land. Therefore, conceding that the Sitterdings had the capacity to enter into covenant of warranty in Oklahoma, the effect of the obligations imposed by that covenant must be determined by the laws of Arkansas. Here is the place of performance, and hence the lex solutionis is the proper law to govern. Tillotson v. Pritchard, 60 Vt. 94; Riley v. Burroughs, 41 Neb. 304; Kling v. Sejour, 4 La. Ann. 128; 1 Wharton, Confl. Laws, § 27ód, pp. 632, 633; Minor, Confl. of Laws, § 12, p. 37, § 185 and cases cited in note 1. It is unnecessary to determine whether the district court of Oklahoma had jurisdiction to render judgment removing the disabilities of the Sitterdings, for it follows from what we have said that they had the right to disaffirm, even if such judgment be valid.
III. The next question is, have they done so? They were sui juris when they executed their deed to appellant. It is unnecessary to detail the evidence showing the negotiations resulting in the execution of the deed. The terms of conveyance, “grant, bargain, sell and convey,” used therein made it at least a quitclaim deed under our statute. Sec. 731, Kirby’s Digest. The grantors received a consideration in cash of $250. The evidence is conclusive that Herman Sitterding executed the deed, intending it as a distinct disaffirmance of his prior deed to appellees. The evidence is in conflict as to whether George Sitter-ding executed the deed for that purpose or for the purpose of ratifying the former deed; but our conclusion is that a decided preponderance of the evidence shows that George Sitterding also executed the deed to appellant for the purpose of disaffirming his.former deed. The evidence warrants the conclusion that appellant advised the Sitterdings that he expected to enter suit against appellees if they executed their deed to him, and, knowing this to be his purpose, they made the deed for a cash consideration to them and an agreement on the part of appellant to repay to appellees the money they had paid for the lot.
The appellees alleged and contend that appellant made certain misrepresentations to the Sitterdings, and concealed from them the fact that he intended to repay the appellees by charging them rent for the land in controversy, and that such conduct rendered the deed of the Sitterdings to him invalid, and constituted appellant a trustee ex maleficio for them in the purchase of the lot. The Sitterdings are not here complaining of any fraud on them in obtaining their deed; and, if they were, the evidence is not sufficient to justify this court in setting it aside at their instance for fraud. Appellant knew the Sitterdings had the legal right to disaffirm their deed to appellees, and he had a perfect right to deal with them and make the best terms with them he could as to the purchase. It is not a question as to whether his conduct in making the purchase', or theirs in making the sale, is reprehensible under any code of morals or professional ethics. The law giving them the right to deal with each other, the appellees can not call them to account. Appellant owed the appellees no duty in the premises. Devlin on Deeds, § 99; Black v. Hills, 36 Ill. 376. Appellees must also be held to a knowledge of the law giving infants the right, on attaining their majority, to disaffirm their deeds.
Since the deed to appellant was not, under the evidence, made to ratify the deed to appellees, it could not have been made for any other purpose than a disaffirmance thereof. The deed to appellant, although only a quitclaim, operated as a disaffirmance of the deed to appellees, although their deed was a warranty deed. 22 Cyc. and authorities cited. “There can not be a more decisive act of disaffirmance than the conveyance of the same land to another person, who is not in privity with the first grantee.” Bagley v. Fletcher, 44 Ark. 153.
But appellees contend that this doctrine is not applicable here for the reason that the land in controversy in Bagley v. Fletcher, supra, was wild and unimproved, while in the instant case it is in the possession of the appellees. The doctrine that “an infant, to avoid his deed, must enter on the land and oust the occupant, or, if already in possession, must perform some ac1 explicitly evidencing his intention to defeat the conveyance,” can have no place under our statute. Sec. 736, Kirby’s Digest, reads : “Any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest in the same manner and with like effect as if he was in actual possession thereof.” Under this statute, “where one who has • conveyed his property while an ■ infant executes, after his arrival at majority, another deed conveying the property to another person, the first deed, is thereby disaffirmed.” 22 Cyc. 556, note 71, and 557, note 78; 5 Am. & Eng. Enc. L. 2d Ed. 837, n. 1; Haynes v. Bennett, 18 N. W. 539.
Since the last deed is a disaffirmance of the first, and conveys the title to the lot in controversy to the appellant, what are his rights under it?
IV. The effect of the deed to appellant was to make void the former deed of his grantors to appellees, and appellant succeeded to all the right of the grantors in the lot in controversy. It is conceded that the widow, now Mrs. Thomas, owned an unassigned dower in the lot. This passed to appellees under the deed which she executed May 5, 1904, jointly with the Sitter-dings ; and their disaffirmance could have no effect on her deed. The deed was hers as well as theirs, and conveyed all her interest in the lot mentioned. It is true that where a greater and less estate meet in the same person without any intermediate estate — and, we may add, without any contravening equities — the less estate, in the language of the old law, is drowned or merged in the greater and ceases to exist. 2 Rapalje & E. Law Dict. 815; Youmans v. Wagener, 3 L. R. A. 447; Mangum v. Piester, 16 S. C. 316. But the doctrine of merger can have no place here. The extinguishment of the greater estate by the deed of disaffirmance necessarily destroyed any merger, if there was one, and left the equitable title to the unassigned dower in appellees. Weaver v. Rush, 62 Ark. 51; Flowers v. Flowers, 84 Ark. 557. Moreover, “the doctrine of merger never applies where there are any equities which would be thereby defeated.” Simpson v. Robinson, 73 Ark. 132; Bemis v. First Nat. Bank, 63 Ark. 625. See also Neff v. Elder, 84 Ark. 277.
If there was a merger of the dower, it was when the dower and fee united in appellees by their purchase from Mrs. Thomas and the Sitterdings; but the two estates never united in the Sitterdings. They never had a dower interest, and their deed to appellant could only transfer to him such estate as they had. They never acquired any éstate through appellees. The appellant, therefore, never purchased the dower, but appellees did purchase and pay for it. It would inequitable to take it from them and give it to appellant.
The appellant, then, is the owner in fee of the lot in controversy, subject to appellees’ unassigned dower right.
V. The only remaining question is, How are the rights of the respective parties to be enforced? The appellees in their cross-complaint alleged that they had paid $4,100 for the lot— “that is, $3,000 to the parties and by paying off obligations for the grantors in the sum of $1,100.” Appellant in his answer denied that over $1,720 was paid the Sitterdings, but he does not deny that appellees paid obligations for the Sitterdings, or the amount thereof. On the contrary, he alleges that the consideration he was to pay for his deed was “the money George W. and Herman H. Sitterding had received from the defendants, the amount of the claims which had been probated.” etc. The appellees show that the amount of the claims against the estate of the Sitterdings paid by them was $700. While appellant in his testimony says that he was to pay “back the money that Bertig had paid them,” the Sitterdings, he does not say that he was not to pay also the obligations that Bertig had paid for them. He was silent as to this. He does not show that the allegation in his answer, to the effect that he was to pay these obligations, was untrue. As he made the allegation, he should be bound by it.
Furthermore, aside from the contract, equity will compel the appellant, before he can recover possession, to repay the appellees for the debts which they discharged against the Sitterding estate. For this the estate would be liable after the minors reached majority, their homestead rights having expired. Appellees, who held this debt against the estate, made it a part of the consideration of their purchase from the Sitterdings-, and they, the Sitterdings, thus received the benefit of it. Under the doctrine of Stull v. Harris, 51 Ark. 294, they, or appellant who succeeds to their rights, must do equity and repay this amount before a recovery of the property can be had. 22 Cyc. 557; Eureka Co. v. Edwards, 71 Ala. 248.
The evidence shows that $400 was paid by the appellees, not to the Sitterdings, but to their own agent for making the negotiations. This amount, therefore, cannot be considered as a part of the consideration that appellant was to pay.
According to appellant’s own pleadings and evidence, the money he was to pay appellees, in addition to what he was to pay the Sitterdings in person, was the consideration for the deed by which they disaffirmed. This contract between .appellant and the Sitterdings was for the benefit of appellees, and they are entitled to have the money that appellant -agreed to pay them refunded before he can recovep under his deed.
The improvements made by appellees were under their lease contract, and are referrible to that and not to their dower estate, which was acquired after these improvements were made. Under the terms of the lease, which the deed of disaffirmance ipso facto reinstated, the improvements were chattels and belonged to the appellees.
Our statute impowers the probate court, upon being satisfied that it would be for the best interest of the estate of a minor, to make an order authorizing the guardian to rent the lands of such minor publicly or privately, as in his judgment shall be best for the interest of his ward, subject to the approval of the probate court, or the judge thereof in vacation. Secs. 3789-90, Kirby’s Digest. It also gives the probate court power to sell or lease for purposes of reinvestment or putting proceeds on interest. Sec. 3801, Kirby’s Digest.
At the common law the guardian in socage could make a lease in his own name of the lands belonging to his infant ward, to continue only till the infant was fourteen years of age, unless the latter chose to continue it longer. But “the'common law,” says Drake, Justice, “in its ever-watchful care of the interest of minors, has suffered their guardians to make advantageous leases for them continuing at the option of the minor beyond the age of twenty-one. Snook v. Sutton, 5 Halstead (N. J. L.), 133 and authorities cited.
Under the common law, or statutes simply declaratory thereof, leases made by the guardian to extend beyond'the term of the guardianship are voidable. Rodgers on Domestic Relations, 861, note 5; 15 A. & E. Ency. Law, (2d Ed.) 68 and 69, note 1; Emerson v. Spicer, 46 N. Y. 594; Ross v. Gill, 1 Wash. (Va.) 114; Ross v. Gill, 4 Call (Va.) 250; Talbot v. Provine, 7 Baxter (Tenn.) 510; 1 Bac. Abr. Leases; 2 Kent, Com. 228; 1 Wash. Real Prop. 307; Schouler, Dom. Rel. § 350, note 1; Putnam v. Richie, 6 Paige 390; Field v. Scheiffelin, 7 Johns. Ch. 150; People ex rel. Hannigan v. Ingersoll, 20 Hun, 316.
In England from the time of Lord Hardwicke, the High Court of Chancery had no power to lease or sell an infant’s real estate without the aid of an act of Parliament. The course was to give reference to a master to inquire whether it would be for the benefit of the minors that application be made for an act of Parliament. Russel v. Russel, 1 Molloy, 525. But the supreme lawmaking power in our State has by the above statutes invested the probate court with power to sell and lease the lands of infants. The matter is left in the judgment of the probate court, and there are no limitations prescribed for the term of lease, and we are of the opinion, from the above and cognate provisions of chapter 76, Kirby’s Digest, that none were intended. The best interest of the estate of the minor is -the prime and only consideration, and that seems to be the only limit to his discretion within the statutory provisions. Complying with these, the intention of the law makers was to give the probate courts plenary power in the premises. Hence the lease made by order of the court was valid, although it was to continue beyond the minority of the infants.
The improvements are not a part of the freehold, and therefore appellees and appellant, as to these, are not tenants in common. The lease had not expired at the time of the trial, and appellees were then entitled to possession under it, and will be until six months after its expiration, to have the improvements removed from the premises.
Under the case of Tobin v. Spann, 85 Ark. 556, appellant was entitled to rents only from the date of the deed of disaffirmance, which was April 6, 1907. From that date he is entitled to two-thirds the amount of the rent specified in the lease, with interest at the rate of six per cent, per annum after maturity. The appellees are entitled, also, from that date to have the money —$2,700—which the appellant had agreed to pay them under the terms of his contract with the Sitterdings, refunded with interest on the amount at the rate of six per cent, per annum from that date until it is paid.
It would be premature to make any decree touching the assignment of the dower interest of appellees until the expiration of the time during which they may hold the property under their lease. The condition, of the property at that time will furnish a proper criterion for ascertaining the proper value of the unassigned dower interest and the method to be pursued in its allotment. The suit of appellants for possession was in fact premature. But, inasmuch as the court retained the case, and the court and the parties have treated it as a suit-to settle and quiet the rights and title in and to -the lot in controversy between the respective parties, we have defined and adjudged their rights as indicated above.
The decree quieting the title in appellees will therefore be reversed and the cause remanded with directions to the chancery court to enter a decree adjudging the rights of the parties in accordance with this opinion; and for such other and further proceedings as may be necessary and not inconsistent herewith.
