Edmondson v. Welsh, 27 Ala. 578

Edmondson v. Welsh

27 Ala. 578 | Ala. | 1855

CHILTON, C. J.

1. It is well settled that, to entitle.the wife to dower, the husband must have been beneficially seized to his own use, during the coverture, of the land out of which it is claimed. If it be so vested but for a moment, provided the husband is not the mere conduit for passing the title, the right of dower attaches. — 4 Kent’s Com. 37-8, (ed. 1854); Eslava v. Lepretre, 21 Ala. 504; 1 Greenl. Cruise, 171-2, and notes.

2. It is'also the settled law in this State, whatever it may be held elsewhere, that parol evidence is admissible to show the fraudulent use of a deed, or that a party receiving an absolute deed received it in trust for a particular purpose. The case of Kennedy’s Heirs & Executors v. Kennedy’s Heirs, 2 Ala. 271, is full to this point, and fully justifies the defendants in this case in proving that Edmondson was the mere conduit to pass the title of Wilkinson & Hunt, as trustees, back to them as individuals.

3. The deed to Edmondson was not void, but voidable at the election of the mortgagor. As he does not complain, it is not for any one else to set up that he is injured by reason of the trustees or mortgagees buying thus indirectly at their own sale. — See Cunningham’s Adm’r v. Rodgers, 19 Ala. 149; Saltmarsh v. Beene, 4 Port. 283; 5 Vesey, 678.

4. The doctrine of estoppel does not apply in the case before us. If the husband was the mere conduit to pass the title, as we have above stated, he had no such seizin as entitles his widow to dower. The estate in him is in the same category as if it had vested'in and out of him at the same instant; as in case óf a sale and mortgage back, or where he *582merely executes a power of appointment. In short, when it is shown that, although the husband was seized, it was not beneficially, but as a naked trustee, the right to dower does not attach. The seizin, therefore, is not denied, but' is so explained as to defeat the wife's claim. — See, as to estoppel in cases of dower, Edmondson v. Montague, 14 Ala. 370.

5. The proof of Justus Wyman (leaving out that portion of it objected to), he being a subscribing witness to the deeds from Wilkinson & Hunt to the demandant’s husband, and from him back to them, — coupled with the fact that those deeds bear even date, and the surrounding circumstances, as also with the further fact that the conveyance from Edmond-son to them is but a quit-claim,- — -very satisfactorily shows that Edmondson had no beneficial interest- in the land- — -that he was a naked trustee, or mere conduit, to pass the title to Wilkinson & Hunt.

Entertaining these views, it is unnecessary that we notice the other questions presented in the argument.

Decree affirmed.