18 Ala. 810 | Ala. | 1851
It is perfectly clear that if the defendant, Matilda Webb, had such, an. interest in the land as was not liable to be sold under execution, the persons who attempted to acquire it under the sheriff’s sale, obtained no interest; because it would be absurd to say, that although the sheriff could sell no interest, his sale and deed should nevertheless operate such an investiture of title as would warrant ejectment against the tenant in possession.
It is indispensable to a recovery by the plaintiff in ejectment ¡hat he show such title in himself as will support the action. He must, at least, make out a prima facie case, from which the law would draw the inference of title, as that he, or those from whom he claims, had the prior possession of the land, before he can ■put the defendant upon proof of his title. If the plaintiff claim the land under a purchase at sheriff’s sale, he must prove four things, namely, a judgment, execution thereon, furnishing authority to the sheriff to levy and sell, the sheriff’s deed for the land, and that the defendant had such interestas, under the statutes of this State, was transmissible by such deed.
It may be sufficient to show that the defendant in the judgment was, at the time of its rendition, or between that period and the time of the levy, in the possession of the land; for in such case the presumption of ownership arises, as the law will not presume he was a trespasser; but no case has been found which
Let us apply the principles above stated to the case before us. The defendant was the widow of Elisha Webb, deceased. • The land sued for belonged to him at the time of his death, as was admitted by the plaintiffs on the trial. The defendant retained possession of the mansion house situated upon the land, and in which her husband lived up to the time of his decease; but the plantation around and adjoining the mansion house, composing-some three hundred acres, was cultivated by the hands which had been of the property of said Elisha Webb in his life-time, under the management and control of the administrator-of said estate, and the proceeds of the crops raised upon the land had gone as assets into the estate of said Webb. It was shown that no dower had ever been allotted to the defendant in the lands, and that her said husband had been dead more than five years. The Circuit Court was of the opinion, and so charged the jury, that if no dower had been assigned the defendant, and the lands in controversy were of the estate of Elisha Webb, deceased,
The statute, it is true, makes it lawful “for the widow to retain the full possession of the dwelling-house, in which her husband most usually dwelt, next before his death, together with the outhouses, offices, or improvements, and plantation thereto belonging, free from molestation and rent, until she shall have her dower assigned her. — Clay’s Dig. 173, § 7. But this mere right to occupy gives her no estate in the lands until her dower is assigned. Such was the decision of this court in the case of Weaver & Gaines v. Crenshaw, 6 Ala. 873. This decision we regard as a correct exposition of the law, and the principle which it establishes is fatal to the plaintiffs’ case. In Gooche v. Atkins, 14 Mass. 378, it was held that a widow’s right to have dower assigned her, was not subject to be taken in execution, and we have found no case holding a different doctrine. If our statute proceeds upon the idea of extending the widow’s quarantine, as recognised by the common law, a liability to sale would seem to contravene the policy of the law which confers it; for it is said that the law in its provident care has made this provision in consideration of the destitute situation in which the widow is • cast upon the death of her husband. . Be this as it may, we feel well assured that her estate is not such as can be sold under execution, — that it is but a permissive possession, determinable when the heir or person holding the fee shall elect to assign her dower and place her in possession of the specific allotment. Until then she may occupy, and may defend an ejectment brought against her to recover the land (Shelton v. Carroll, 16 Ala. 148;) she may also recover rents from a person, whom she permits to enter and rent out the premises. — Inge v. Murphy, 14 Ala 289. All ibis, an occupant upon the public land may do, and more, for he may sell his claim or improvement, but it is well settled that he has no such interest as may be sold under an execution. — Rhea, Conner & Co. v. Hughes, 1 Ala. 219, which has been repeatedly recognised by subsequent decisions— see 6 Ala. 71; 13 ib. 364; 7 ib. 117. This view of the case shows that the plaintiff cannot recover, and renders it unnecessary for us to examine the question as to the admissibility of the
We have examined the several cases to which we have been refered by the counsel for the plaintiffs in error, and do not think they militate against the conclusion to which we have come.
We readily concede the law to be that the defendant in the judgment, when sued by a purchaser under the execution for the possession, cannot defeat the action by showing an outstanding title in a third party, with which he is disconnected ; but that is not this case. Here the defendant shows the nature of her possession and right to occupy, by connecting herself with her late husband’s title.
The record shows no error, of which the plaintiffs can take advantage, and the judgment is consequently affirmed.