137 Ala. 588 | Ala. | 1902
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
Reversed and remanded.