10 Ga. 321 | Ga. | 1851
By the Court.
delivering the opinion.
This is an application for dower under the law as it existed pwtothe enactment of the Statute of 1826, limiting the wife’s right to dower in such lands of which her husband died seized and possessed, and such as the husband acquired by his intermarriage with the wife. The tract of land in which the demandant
On the trial of the cause in the Court below, several questions were made, which are now before this Court by writ of error, and we shall notice them in the order in which they appear in the record.
As early as 1760, the Legislature of this State passed an Act providing in what manner the wife should relinquish her dower, in all conveyances of lands and tenements. Prince, 159. At that time most of the lands in the State were wild and uncultivated, and yet the Legislature seem to have acted upon the idea that if the wife did not relinquish her dower in and to the lands conveyed by her husband, she would be entitled to demand it, as well in wild, uncultivated lands, as any other. The reason given in some of the cases why the widow was not dowable in England of wild uncultivated lands is, that the land would be wholly useless to her if she did not improve it, and if she did, she would expose herself to disputes with the heir, and to forfeiture of the estate for waste.
In the early settlement of this State, wrhen the Legislature adopted such portions of the Common and Statute Law's of England, properly adapted to the circumstances of the inhabitants thereof, it would hardly have been considered such waste on the part of a widow, who improved wild and uncultivated land, as to
The fourth ground demurred to was, that no notice had been given to the legal representatives of Schroeder, and if there was no such legal representative, the demandant could not proceed until one be made. . This ground of demurrer was also properly sustained by the Court below. The only interest which the representatives of Schroeder can have in this controversy is, in regard to the claim which the defendant may have against 'them on the covenant of warranty contained in his deed; but that is a matter between him and them, with which the demandant has no concern. If the defendant has not thought proper to give them notice, or there is no legal representative of his estate, then this judgment will not affect his estate.
The present or future representatives of Schroeder’s estate, will not be concluded by the judgment which may be rendered between the parties now before the Court, without notice. The demandant is seeking her remedy against the. defendant, under the Act of 1824. Prince, 459. That Act provides, that persons applying for dower, shall give to all the parties in interest twenty days’ notice of their intended application.
The next objection taken is, that John A. Schroeder, the husband of the demandant, was an alien, and never seized of the land to which the demandant claims her dower.
The Court in that case held, that the widow of an alien was entitled to recover dower in lands against a party whose title was derived from her husband, although the husband, at the time he took a conveyance of the land, was not entitled to take and hold real estate. The defendant here deriving his title to the land from Schroeder, the husband of the demandant, is now es-topped from denying the seizure of the husband on the ground that he was an alien. This view of the question makes it unnecessary for us to notice the objections made to the record of naturalization from the City Court of Charleston.
This was no settlement of the case, which would operate as a bar to the demandant’s right of dower, either in Law or Equity. She received no equivalent for her right of dower in the land; besides the case was not settled, it was merely dismissed, which left the rights of the parlies in the Court as it found them, in respect to the claim of dower.
Let the judgment of the Court below be affirmed.