16 Ala. 633 | Ala. | 1849
The plaintiff in error as the widow of Thomas Blackmon, deceased, filed her petition in ihe Circuit Court of Wilcox, against the heirs and representative of her late husband, to recover her dower in certain parcels of land. The petition alleges the seizin of her husband during the marriage, and that after the marriage he conveyed by his deed the same land to his three sons, who are the defendants in er
The defendants in error (the three sons) filed their three several pleas to the petition. There is no question of law, however, as to the first. The second plea alleges an ante-nuptial covenant and agreement under seal, between thg petitioner and her late husband in contemplation of their marriage, whereby he was to enjoy all his then present and future estate free from the claim of the petitioner by way of dower, or otherwise, in case she should survive him, and she was to have and hold to her own separate use all her then present and future estate, together with the rents, &c. of the same, to be controlled &c. as she might think proper. This plea further alleges that she has ever since had and still has her estate, &c. according to the deed.
The third plea alleges that the petitioner, while she was sole and unmarried, covenanted with her late husband, that in the event of their marriage, and in consideration that he then and there covenanted with her that she should, notwithstanding said marriage, have and hold &c. to her sole and separate use, all her then present and future estate, together with the rents, &c. of the same, then and in consideration thereof, released and relinquished all claim &c. that might accrue to her by said marriage, in case she should survive him, by way of dower, or otherwise, to his then present or future estate. The plea further alleges that said Thomas did then and there enter into covenants with the petitioner,to the effect aforesaid, that she accepted the same, and has ever since held, &c. her own estate, with the rents &c. to her sole and separate use.
To the second and third pleas there were demurrers, which were overruled by the court, and this is assigned as error. If for the purpose of avoiding circuity of action, we could hold that the agreement stated in the second plea amounted on the part of the petitioner -to a release of dower, then the second and third pleas would be the same in effect. As the third plea however alleges a release, we will confine our remarks chiefly to it, for if it cannot be sustained, the second plea must fall of course. In Gould, executor of Hays, v. Womack and wife, 2 Al. 83, the court observed: “At common law, by the marriage, the wife acquired a right to be endowed of one-
Tb,e matters alleged in the 2d plea are clearly within the 2d of these maxims, unless those matters can have the effect of a release of her dower. If they can have that effect, then they and the third plea stand on the same ground, and are subject to the first of the maxims, “ that no right can be barred before it accrues.” It may be said, however, that the question whether a woman can, before marriage, release her claim to dower in the lands of her intended husband, did not arise in the case cited. But we find by other authorities that it is á correct principle, and that it applies to such a claim; — Bac. Ab. title Jointure, In Hastings v. Dickinson and wife, 7 Mass. Rep. 153, the case was that the widow of one Thomas Hastings brought her writ of dower, and it appeared that previous to her marriage with her deceased husband, a marriage settlement was executed by them and one Watson, as trustee, in which she covenanted with her intended husband, his heirs, &c. in consideration, &c. never to claim any right of dower, &c. in the estate of which he might die seized and possessed. It was remarked by Chief Justice Parsons, “that it was well known that at common law, a jointure made to a wife, before or after marriage, was no bar to her dower; because the dower being a freehold estate could not be barred by any collateral satisfaction,” citing Coke Lit. 36, b.; 4 Coke 1. The Chief Justice next considered the second question in the cause, viz, whether her covenant never to claim dower could have the effect of a release. Upon this he said, “ it is true that a covenant never to prosecute an existing demand shall operate as a release, to avoid circuity of action. But á release of a future demand, not then in existence, is void. Now in this case, the settlement being executed before the marriage, the demand of dower had no existence, the same not being inchoate.” And then he stated that if there be any relief against the widow on her covenant, it must be by action. There are other cases which support the doctrine of the case last cited, and they show besides, that neither the widow’s
At present we decide nothing as to the effect which the matters stated in the second and third pleas might have in equity. We only decide that as a bar to her claim of dower in a proceeding at law, they are unavailing. The demurrers to those pleas should have been sustained; and for the error in this respect the judgment must be reversed, and the cause remanded.
