Bettis v. McNider, 137 Ala. 588

Bettis v. McNider

137 Ala. 588 | Ala. | 1902

TYSON, J.

This is an action for money had and received, brought by plaintiff against defendant for the proceeds of the sale of five hales of cotton, received by the latter from a tenant after the plaintiff’s dower in the land on, which the: cotton was. grown had been assigned to her. Prior to the. assignment of dower, 'the administrator rented the land, taking the tenant’s obligation for the delivery of the cotton which he transferred to the defendant. The chief important question presented is, did the transfer of the tenant’s obligation to defendant by the administrator prior to the assignment of dower operate to defeat the plaintiff’s right to the rent? Prior to the assignment of dower, a widow has no such title to the land as will support, an action at law against an administrator or heir for refits collected. Her remedy in such case is in equity. And upon proper bill she may recover them of the administrator or heir from the date of the death of the husband to the date of the assignment. — Watts v. Williams, 38 Ala. 680; Slater v. Meek, 35 Ala. 538; Perrine v. Perrine, Ib. 644; Beavers v. Smith, 11 Ala. 32; Tillman v. Spann, 68 Ala. 102, 107. After assignment, the widow is invested with a life estate in the lands set apart- to her. — Code, § 1522. She immediately becomes seized for life of a freehold estate and has the same absolute ownership and control of the lands assigned as though her title had accrued by deed or will. The assignment, however, is not a conveyance, but the dowress, by intendment of law, is in by her husband.

The only object, to he accomplished by the assignment is to give the widow’ a right of entry and to define the boundary of her possession; the allotment conferring upon her no new right to the land. And after the dowser is assigned, he.]* seizure relates hack to- the date of the death.of her husband, and the antecedent seizure of the heir which took effect on the death of the husband is considered as never having had an existence, and she, is in contemplation of law7 the immediate successor in title of the husband.- — 10 Amer. & Eng. Encv. of Law (2d ed.), p. 152.

In Boyd v. Hunter, 44 Ala. 705, upon bill filed by a wddow, after dowmr assigned, against the administrators *592of her husband's, estate and the tenants to whom they had rented the land prior to the allotment of dower, but whose obligation to. pay the rent matured after dower was assigned, a recovery was allowed for the rents of the land collected by the administrators prior to the .assignment of dower, and also for the rent falling due after the assignment. Prom tills statement it will readily be seen that one of the questions presented was, which of the two, the dowress or administrators, had the better right to rents accruing after the dower bad been assigned. As indicated above, the decision was ini favor of the widow. The: court after affirming the right of the widow to. the rents collected by the administrators,, said, in part, on this point: “It is further objected thait Riggs and Hunter (the tenants) are liable at law, if at all, for the rents accruing after allotment of dower. These rents could certainly have been recovered in an action ait law, but as the jurisdiction of equity had attached, that court will complete justice between the parties by settling a mere matter of account. * * * * There would be more force in this objection if the assignment of dower per se evicted the tenant. But although as soon a.s the premises have been set out and assigned to the wife, and the allotment confirmed by the court, the freehold vests in her by virtue of her husband’s seizure and heir estate is a continuation of his by appointment of) law, the tenant is. not required to be ousted. * * * Whether or not the tenants were at liberty to relinquish possession of any part of toe dower interest on its assignment, there is no evidence that they did so. They were liable for the rent, which accrued during their possession.” The continuation of the possession by the tenant after the plaintiff’s right of entry accrued, notwithstanding be went into possession under toe administrator, converted him into a tenant of the plaintiff, and that without attornment. — Mills v. Clayton, 73 Ala. 359. This principle in no. wise conflicts with the familiar rude which, prohibits the tenant from denvilng toe title of toe landlord, in any proceeding instituted by the latter, for the recovery of rent or possession, but comes within the exception that a tenant may always show that, since the inception of the lease, the title of the lancb *593lord lias been extinguished or has passed from him, either by his own act or by operation of law. — Davis v. Williams, 130 Ala. 534. The administrator’s right to the. possession of the lands of the intestate, being subordinate to the plaintiff’s right "of dower, he could never acquire any title asi against her .to the rents arising from that portion assigned as dower. This being true, he was powerless to convey a superior title to the rent to another by a transfer of tire tenant’s obligation. Furthermore, the obligation or contract in this case shows on its face thait. it was given for rent of lands belonging to the estate of the plaintiff’s husband. The defendant, a,s assignee of it, being chargeable with the1'knowledge of the uncertainty of the administrator’s tenure, the right of 'the plaintiff to an allotment of dower, when assigned that she would be entitled to the possession of the land, and of the liability of the tenant to her if he remained in possession, instead of to the holder of his contract for rent, can not invoke the benefit of the doctrine of bona fide purchaser for value. In short, whatever title the defendant took by the transfer of the rent contract, he acquired subject to be defeated by the exercise of the right of the widow to dower, and this he: was bound to know. 1-Ie having no enforceable demand against the tenant, no title to the cotton which he received and converted, since it belonged to the plaintiff, he is a tort feasor. But the plaintiff could waive the tort and bring and maintain this action against him for the proceeds of the cotton received by him from its sale. He has money which ex equo et bono belongs to plaintiff. Miller v. King, 67 Ala. 575; Steiner v. Olisby, 103 Ala. 181; 2 Ency. of Pl. & Pr. p. 1022.

Reversed and remanded.