128 Ala. 671 | Ala. | 1900
The plaintiffs, purchased the lot in controversy at an execution sale on the 2d day of September, 1895, receiving a sheriff’s deed thereto, as the property .of J. M. Nelson, defendant in execution. Thejr contention is, that it was the property of J; M. Nelson, the husband of the defendant Abigail Nelson at the date of the rendition of the judgment and at the date of the sale. This contention is sustained by the evidence if we eliminate from all consideration the evidence offered by the defendant, Mrs. Nelson, tending to establish that Shirk, from whom both she and her husband claim to have derived title, executed to her a deed prior in point of time to the one he executed to her husband. — Winston v. Hodges, 102 Ala. 304; Wells v. American Mortgage Co., 109 Ala. 430. Under the view we take of this case, it is unnecessary to discuss the question whether the testimony in point of fact establishes the execution of a deed by Shirk to Mrs. Nelson. The testimony on that point is in hopeless conflict, and it does not appear that the finding by the court against the plaintiffs’ contention is plainly erroneous. — Woodrow v. Hawving, 105 Ala. 240; Malone v. Cobb, 92 Ala. 630.
Accepting the theory of the plaintiffs that fhe lot belonged to J. M. Nelson, and that it was subject to execution and sale, as true, upon the undisputed facts as disclosed by the evidence, they are not entitled to recover the portion of it in Mrs. Nelson’s ^possession. She and her husband went 'into possession of the, lot in 1874- and resided continuously upon that portion of it claimed by her as their homestead until his death in 1896. Since the death of her husband she has continued to reside on it. The sale, under which the plaintiffs claim title, did not defeat her right of dower. — Code, § 1509; Wood v. Morgan, 56 Ala. 397; Jackson v. Isbell, 109 Ala. 100. Having a right of dower in the portion of the lot claimed by her, and it being the homestead of her husband, her right of quarantine, attached as" an incident thereto. And under section 1515 of' the Code, she is entitled to retain the possession of it until her dower is. assigned, free from the payment of rent. Indeed, if she were out of'possession, she Could maintain an action not only to recover the possession of it, but could sue for the
It is contended by appellants that there is no proof that Mrs. Nelson’s dower has not been assigned to her— that (the burden of proof is upon her to show this fact. It is true the record, which purports to set out all the evidence, is silent as to whether dower has- or has not been assigned. We take it, that no evidence on this point was introduced. But the burden was not on Mrs. Nelson to show that her right of quarantine, had been destroyed by the assignment to her of dower or by relinquishment of dower. It was not her duty to have dower assigned and certainly not to her interest to do so. The duty is clearly upon the plaintiffs. It is insisted that this duty Is not upon the plaintiffs, for the reason that section 1516 of the Code confers the right to petition the probate court to assign dower upon the widow, heir or personal representative. The answer to this is, that the plaintiffs can by proceeding in chancery 'have her dower assigned and that, if they desire to obtain possession of the portion to which they are entitled, they must themselves become the actors to have the dower assigned to her. The right of quarantine being once shown to exist, it is not to be presurrfed that she would destroy it, simply to acquire a less valuable one, and especially is this true since no duty was devolved upon her to do so. The case of Shelton v. Carrol, supra, is decisive of this question.
As to the portion of the lot in the possession of the defendant, John Nelson, the evidence shows undisputedly that he had been in the actual possession claiming to own it in right of his wife for more than ten years before the bringing of this suit.
A great many exceptions were reserved by the plaintiffs to the introduction of evidence against their objection. Confessedly much of the evidence objected to was irrelevant and illegal and should have been excluded. But with it in or out of the case, the facts are undisputed that Mrs. Nelson is the widow of J. M. Nelson and that the lot In suit claimed by her, was their home
The judgment must be affirmed.
Affirmed.
