Beavers v. Smith

11 Ala. 20 | Ala. | 1847

ORMOND, J.

Although this court has appellate jurisdiction only, it may nevertheless restrain the action of its suitors, upon facts ascertained, and made known to it, from the general power vested in all courts, of preventing the abuse of its process, and of the means provided for the administration of justice. The cases of Hall v. Hrabrowski, 9 Ala. 278, and Bradford v. Bush, at the last term, are instances of the exercise of this power.

But this court can only act in such cases where the fact is admitted, or where its truth is inferrible from its not being denied. Having no original jurisdiction, it cannot ascertain the existence of a disputed fact in pais.

Here, the plaintiff in error having made a prima facie case, by the production of a power of attorney from the defendant in error, to confess error, and the confession of error founded on the power, a rule was granted upon the defendant in error, to show cause why error should not be confessed. The defendant being a non-resident, her attorney in this court controverts the bonafides of the act, and makes affidavit, that he believes the power of attorney to confess errors, was fraudulently obtained from.his client. In addition, it appears that before the power to confess errors was given, the authorized agent of the defendant in error, had transferred to third persons the principal part of the judgment. Under these circumstances we do not think this a proper case, for the interposition of the extraordinary power of this court, which can only be properly exeecised when the facts upon which its action is based, is either admitted or not denied, and when its action cannot by possibility prejudice the rights of any one. In all doubtful cases, the party complaining must bo left to that relief, which the law has otherwise provided for ■the redress of all injuries.

The question whether the complainant is debarred from •asserting her right to dower iñ the lands of her deceased husband, in consequence of her removal with him to Texas, in 1834, and remaining there since his death, which took place in 1836, and having thereby, as is insisted, become an alien 4o this country, is one of great interest. As it respects the right of expatriation, insisted on by the plaintiff’s counsel, without the consent of the government, it would seem to follow necessarily from our naturalization laws, that our people can migrate and transfer their allegiance at their pleasure, to a foreign government; as our laws do not require the consent of the former sovereign, to the expatriation of a foreigner, as a condition of his becoming a citizen of the United States. The well known rule of the common law, that a natural born subject cannot divest himself of his allegiance to his sovereign, appears to have been considered as the true rule in the United States, in Ainslie v. Martin, 9 Mass. 461. In the case of the Santisma Trinidad, 7 Whea-ton, 283, the question came before the Supreme Court of the United States, and it is put as a quere, whether an American citizen can throw oif his allegiance to his native country, independent of any legislative act authorizing him to do so. This interesting question must therefore, in this country, be considered as unsettled.

Nor is it necessary it should be settled in this case, for con-conceding the right of expatriation as it is called, to be as contended for, it is very certain that the mere removal of a citizen of the United States, to a foreign country, does not work a forfeiture of his political privileges, as a citizen of the United States. He may, by the removal, owe a local, temporary allegiance to the sovereign of his domicil, but neither in England, or the United Stateswould a sojourn of any length of time, entitle such resident to the political rights of a natural born subject, or citizen. In England he could only acquire such a right by act of parliament;, and in this country, by doing the acts enjoined by the naturalization laws. Until these aro done, he is regarded by the laws of both countries as an alien.

We need not stop to inquire, what would have been the effect on the wife, of the husband’s renouncing his allegiance to the United States during the coverture, and becoming a citizen of Texas, because it does not appear that the husband ever became entitled to the political privileges of a citizen of that Republic. Nor does it appear, that the complainant since his death has become a citizen of that State, and entitled to its political rights; yet this was a fact which the defendants put in issue, and were bound to establish. We cannot infer that such is the fact, from her continued residence there, since her husband’s death, although such an inference seems to have been drawn by the Supreme Court of Kentucky in Alsberry v. Hawkins, 9 Dana, 178.

Her residence there, is entirely consistent with the retention of her political rights derived from her birth in South Carolina, and until some further act is shown, inconsistent with the future assertion of this right, it appears to us illogical, and unwarrantable, to deduce such an inference from an act so equivocal as residence merely. This inquiry would seem to be of small importance in this cause, as the Republic of Texas has become an integral part of the United States whilst this cause has been in progress, and all its citizens have become citizens of the United States. If, then, there had been a temporary suspension of the right to' sue, has it not been restored by the annexation of that State to the Union ?

The question of what the widow shall be endowed, whether of the value of the land at the time of the alienation, or of the enhanced value at the time of the assignment, arising from improvements by the alienee in the erection of a mill, &c. was fully considered by us in the case of Barney v. Frowner and wife, at the last term, when it was held, that she was not dowable of such improved value. It was also held, that the statute remedy for the admeasurement of dower, was confined to those cases where an assignment could be made by metes and bounds, and where that was impossible, and it was necessary to make a compensation in money, resort must be had to a court of chancery. It is said in the old boobs, that where a mill is subject to dower, the widow may be endowed of the third toll dish. [Coke Litt. 32;a Thomas Coke, 671.] That was impossible in this case, because the mill, which existed at the time of the alienation by the husband, becoming dilapidated, was torn down by the alienee, and a much more valuable, and more costly structure erected in its stead, which it would be obviously unjust to endow the widow of; it was therefore a proper case for compensation, and a court of equity could alone afford the proper relief.

No question was made in the case as to the appreciation in value of the property, from any other cause than the improvements made by the purchaser, the true rule was therefore adopted by the chancellor — the value at the time of the alienation, and having ascertained that, he decreed her the interest on one-third part of such value from the time of the filing of the bill.

At common law, where an assignment could not be made of the thing itself, the widow was dowable in a special manner. Thus, although she was dowable of the third toll dish of a mill, the sheriff might assign her a third part of the profits — a third part of the profits of a fair, of an office, of a. park, of a dove cote, &c. [Coke Lit. 32,a.] So also of mines,, where an assignment of the mine was impracticable, of the third part of the profits. [Stoughton v. Leigh, 1 Taunton, 402.]

In this case there is no means of ascertaining what would have been the profits of the old mill, if it had remained, and which would have necessarily fluctuated from the operation of temporary causes, and we cannot conceive of a better criterion than that adopted by the chancellor — the interest of one-third of the value of the premises at the time of the alienation. This is fair and just to both parties, and in any series of years, would be found, we apprehend, to be as often above, as below the actual nett profits. This rule was adopted by Chancellor Kent in Hall v. James, 6 Johns. C. 258. This rule, it is urged by counsel, was agreed on by consent in that case, but that is a mistake. The consent was to receive an adequate sum of money, instead of an assignment of the portion of the premises, and the chancellor determined as matter of law by what rule it should be ascertained.

In a case where the principal value of the premises consists-of buildings, requiring an annual outlay to keep them in re-' pair, and prevent their destruction, it is but just that the dowress should contribute her proportion of the expense, as-she must have borne it herself, if an assignment had been made of the thing itself. [See the case last cited.] These-remarks are peculiarly apposite when applied to a mill, but-ilo such question appears to have been made in the court below, and was not here.

It is further objected, that damages should not have been given. Damages are properly the mesne profits, arising after the death of the husband, and before the suit for dower. These were not allowed at common law, but were given to-the widow by the statute of Merton. In this case the chancellor has properly restricted the widow in the recovery of profits, to the time of the institution of the suit, the defendant being a purchaser. As against the heir, the rule would have been different, and damages would have been recoverable from the death of her husband. But whatever may be the rule at law, in equity the established doctrine is to allow the widow the mesne profits as damages; and this not by analogy to the allowance of damages under the statute of Merton, but on the ground of title. This is decisively settled in the leading case of Curtis v. Curtis, 2 Brown’s C. 619.

The chancellor also allowed interest upon the arrears and up to the time of the decree, and this, in our opinion, was strictly correct. The general rule of the English chancery, is not to allow interest upon arrears of annuities, except in peculiar cases, [Anderson v. Dwyer, 1 Sch. & Lef. 303,] and this Mr. Roper states, is the rule of that court upon arrears of dower, though he admits he has found no case going that length, and argues to show that the rule should be otherwise. [1 Rop. on H. and W. 457.] We apprehend, however, that this rule applies in no case to arrears, which have accrued pending the suit, and even in regard to annuities, where they are given for maintenance, the rule is otherwise in England, and interest on the arrears is allowed. [Newman v. Auling, 3 Atk. 579.] That appears to be the principle of this case, as the widow’s dower is intended for her sustenance, and we think interest was properly allowed on the arrears.

The master, in ascertaining the value of the dower interest, instead of estimating one-third of the value of the profits, at the time of the alienation, determined the gross value of the dower at the time of the decree, by assuming the duration of the life of the widow to be seven years. By what data or upon what rule of law, this period was assumed in preference to any other, we are not informed. We are aware that from the bills of mortality in England, and other places, tables have been constructed, by which the average duration of human life, at all ages, has been ascertained. These tables form the bases of assurances upon lives, and furnish the means of ascertaining the present value of annuities; - but, conceding that the calculations from these tables apply to this climate, and country, we are not able to perceive, on what principle they can be considered proper to be adopted as rules of law. The dowress may live to.a patriarchal age, she may die the next day, and the assumption that she will live seven years, is alike unjust to her and the alieyiee. The dowress has but a life estate, where lands are assigned to her, and when from the necessity of the case, instead of the use of the land, she receives money, it should partake of the same qualities — the annual value of the portion which would have been assigned her, had it been practicable to do so. If the parties agree to a gross sum, as. the value of the life interest, tho court would of course give effect to it. In the absence of such an agreement, the decree must be for the payment of the arrears with interest, and for the payment annually thereafter during the life of the dowress, of the sum ascertained to be the annual value of her dower interest. This it would be the duty of the court to secure to her, by a lien on the property, or in some other eligible mode.

In Hazen v. Thurlow, 4 Johns. C. 605, a reference was made to the master to ascertain the gross value of the dower interest, but it also appears that the money was deposited in court, subject to the claim of dower, and that she elected to take a gross sum, and as no opposition was made to the reference, it must be understood to have been assented to.

In South Carolina, it appears, that one-sixth part of the fee simple value of the estate, has been settled, as the proper rule in those cases, where a compensation is made in money, except in cases of extreme youth, or old age. [Heyward v. Cuthbert, 1 McCord, 386; Wright v. Jennings, 1 Baily, 277.] But this is not put upon any general rule of law, but appears-to depend upon a statute of that State, which gives the power to commissioners, to assess a sum of money in lieu of dower, where the land cannot be equally and fairly divided.

We have been able to find no traces in the English books',, of any such rule as was adopted by the court here, or indeed of any rule to ascertain the present value in gross, of the dower interest. In Hobey v. Hobey, 1 Vernon, 218, a bill was filed by the dowress for a re-assignment of dower, charging the assignment of the sheriff to be fraudulent, there being a coal mine on the land of which she was not endowed. The court proposed to the parties, that she should take £300 per annum, or that she should work all the coal lands, and take a third penny therefrom of the clear profits; or that a new writ should issue to the sheriff. She elected to take the third penny, and no opposition being made, it was accordingly decreed, which very conclusively shows, that no assignment of dower, except that of common right, can be made but by consent of the parties.

These principles were affirmed in the case of Herbert v. Wren and wife, 7 Cranch, 370, where it was held, that a sum in gross, in lieu of dower, could not be decreed but by the consent of the parties; and that there was no legal authority, for estimating the life of the dowress at seven years, but that the interest on one-third part of the purchase money should be set apart for the dowress, during her life.

It is further urged, that as the husband conveyed with covenant of warranty, the dowress is liable to refund what she may recover from the portion she would receive as one of the distributees of the estate. It is perhaps a sufficient answer to this argument, that if it be admitted the court could thus decree compensation, it should have been put in issue by a cross bill. But neither the answer, nor the informal paper called a cross bill, contains any allegation upon this subject; the evidence therefore which was adduced was wholly irrelevant; and if it could be looked to, does not show what her distributive share of the estate is, or whether there is any thing to distribute.

It remains but to consider the question of costs. The rule appears to be settled, both in England and the United States, that where no impediment is thrown in the way, the dowress is not entitled to costs. [Hale v. James, 6 John. Ch. 264; Morgan v. Ryder, 1 Ves. & B. 20.] Here the widow’s right has. been resisted, she is therefore, on recovering her dower, entitled to costs. The costs of this court must be taxed against her.

Let the decree be reversed, and the cause remanded for further proceedings.