Foster v. Foster, 2 Stew. 356

Foster v. Foster

2 Stew. 356 | Ala. | 1830

By JUDGE WHITE.

In the rejection of the evidence offered by the defendants below,' and in the other matters hereinafter noticed, it is insisted the Circuit Court erred. The avowed and only legitimate object of this evidence was to shew, that Mary Foster, one of the defendants, was tenant in common with the plaintiff in the lands in controversy. If this were the case, it was important to the defence; as one tenant in common cannot sue another till actual ouster, or its equivalent. Would then the evidence, if allowed to go to the jury have' proven Mary Foster a tenant in common with the plaintiff? The articles of agreement, as already shewn, were dated long prior to the emanation of the grant, and contemplated *359the acquisition of the title in future. They therefore vested no estate in either Josiah Foster or Mary Foster, his widow, and were, no doubt, properly excluded. The same may he said of the suit at law and in Chancery, founded on, and growing out of them. The will made nine years before Josiah Foster acquired the lands in question, and if its provisions were admitted to be strong enough to vest a title in his widow, to the lands he possessed at the time it was executed, yetas it contained no prospective devise which would reach real property afterwards obtained, she acquired no interest in such property. The copy of the will, therefore, if read to the jury, would have proven nothing material to the issue. But it is contended, that the widow had her right of dower in the land; an interest not inconsistent, but in privity with that of the plaintiff. The widow was provided for, as already seen, by the will of her husband, which was recorded in 1SS I, five or six years before the commencement of this suit; and without determining whether she should not have renounced the provision under the will in the manner and within the time prescribed by the statute, to have authorized a claim to- dower in these lands, it may be sufficient to say, she ought not, after such a lapse-of years, to be permitted to interpose that claim against the right of one seeking the possession of the inheritance, but should be left to seek her dower in the ordinary way. After what has been said, it is scarcely necesary to add, that the Circuit Judge very properly refused to charge as requested, that if the jury believed the plaintiff was tenant in common with the defendant, the action could not be maintained without an actual ouster; such a charge would have been totally irrelevant, as there were no facts to which it would apply. The last request made of the Court was, to charge the jury that if they believed Harrison, one of the defendants, was not guilty of the trespass, they should acquit him, and the other defendant also. This too, was well refused, for there is no ¡Drinciple better settled, than that one defendant may be found guilty of a trespass, and the other acquitted. 'The Court are unanimously of opinion, that the judgment must be affirmed.

Judge Crenshaw, not sitting.