51 S.C. 442 | S.C. | 1898
The opinion of the Court was delivered by
The facts of this case are fully set
The question raised by these exceptions has not heretofore been decided in this State. In Park on Dower, star page 192, the following language is used: “It was for a long time doubted by great lawyers, whether before the death of the husband, there were any means by which the wife’s inchoate title of dower might be voluntarily extinguished. It was thought that as she had no right of action until the death of the husband, she had nothing to part with till then, and could not be barred even by fine. But it is now clearly established that the title of dower, although inchoate till the death of the husband, yet being an interest attached on the lands, from the instant of the concurrence of marriage and seisin, is extinguished by those modes by which a married woman may relinquish any other legal interest; and even so long since as the time of Eord Coke, we are told that ‘no question was made, but that if the husband and wife levy a fine, the wife is barred of her dower, for the intermarriage and seisin are the fundamental causes of dower, and the death of the husband but an execution thereof’ ” (italics ours). In our State, this inchoate right of dower may be relinquished by a contract with the wife during coverture — Smith v. Oglesby, 33 S. C., 194 — by a renunciation under the statute, or by a sale of the land
The master who was reversed by the Circuit Judge upon this question relied upon the cases of Keith v. Trapier, Bail. Eq., 63; Tibbetts v. Langley, 12 S. C., 476; Wilson v. McConnell, 9 Rich Eq., 512; Henagan v. Harllee, 10 Rich. Eq., 285, and Keckley v. Keckley, 2 Hill Ch., 250. But in none of these cases was there a destruction of the seisin during coverture by the aid of the wife. Apart, however, from the foregoing reasons for overruling the exceptions, there are decisions in this State that could not have been rendered, if Mrs. Lilienthal’s claim is valid. Section 143 of the Code provides that “The Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them' to be brought in” (italics ours). In the case of Miller v. Bank, supra, the Court says: “In cases where the rights of the wife are in privity with those of her husband in the land, and the land is sold under a judgment of foreclosure during coverture, the wife is not a necessary party to foreclosure proceedings, and after the death of the husband, has no right to claim dower in the land.” From this it necessarily follows that the wife during coverture has not such an interest as the.Court is empowered to protect.
The third exception of this appellant is as follows: 3. “Because his Honor erred in holding that it would be impracticable to ascertain and protect the inchoate right of dower of this defendant.” After what has been said in considering the other exceptions, the question presented by this exception becomes purely speculative. We may say, however, that if the doctrine for which the appellant contends
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.