Hause v. Hause
57 Ala. 262
Ala.
1876
Check Treatment
BRICKELL, C. J.

1. The only error assigned by appellant, is the dismissal of the cross-bill. It is not deniable that courts of equity have concurrent jurisdiction with courts of law in the assignment of dower ; which is not impaired by the statutes conferring jurisdiction in courts of probate. Owen v. Slatter, 25 Ala. 547; Brooks v. Woods, 40 Ala. 538. It is also undeniable that when a court of equity acquires jurisdiction it will retain 'the cause and finally adjust the controversy, though in some respects there is an adequate remedy at law. — 1 Story’s Eq. § 71. It is equally true, that when the jurisdiction at law, and in equity, is concurrent, and the court of law first obtains jurisdiction, without the intervention of some special cause, rendering the jurisdiction at law inadequate, a court of equity can not interfere. 1 Brick. Dig. 639, § 7.

2. The petition filed in the court of probate by the executor for the assignment of dower to the appellant, conferred ■ on that court full jurisdiction to assign the appellant’s dower. *266The jurisdiction was in full exercise when the original bill was filed. The purpose of that bill was to arrest the pro-' ceeding in the court of probate, on the ground that the husband held the legal estate in the particular lands mentioned, in trust, not having any beneficial interest, and consequently, the appellant was not dowable. The court sustained the appellant’s claim to dower, as paramount to the supposed trust, dissolved the injunction which had been temporarily granted against the proceeding in the court of probate, and remitted the appellant to that court, declining on her cross-bill to decree an assignment of dower. So far as the appellant has any right involved, this decree is not erroneous. There was no ground on which the court of chancery could have interfered with the jurisdiction of the court of probate — no intervening cause, rendering the jurisdiction of the latter court inadequate. All the relief the court of chancery could have afforded, was obtainable ins the proceedings pending in the court of probate.

3. The primary object of the original bill, that alone, which would have authorized the interference of the court with the proceedings of the court of probate, and in which the appellant had an interest, was not sustained. The jurisdiction of a court of equity to grant relief when there is adequate remedy at law, because it has jurisdiction for one-purpose, and will therefore do complete justice, can not be converted into a primary ground of jurisdiction. It is consequential only, and when the principal ground of jurisdiction fails, there is nothing on which to rest the further’ jurisdiction of the court.—Pond v. Lockwood, 8 Ala. 669. We are of the opinion the chancellor correctly dismissed the-cross-bill. If it had been entertained, the result in this case would have been, that- the petition for dower in the-court of probate, embracing other lands besides those in controversy in this suit, would, without any sufficient reason,, have been split into two parts — the one pending in equity, and the other in the court of probate.

4-5. The appellees assign for error, the decree of the chancellor, declaring the appellant entitled to dower. The error of the decree, not available to the appellees, because not injurious to them, is, that the court did not dismiss absolutely the original bill. It seems to us devoid of equity. It is not averred that any mistake was committed in the writing of' the deed, or, that it does not truly speak the intention of the grantor, and the grantee. The pripeipal consideration moving to its execution, was doubtless an advancement to the daughter ■ *267of the grantor, the wife of the grantee. Coupled with this consideration was the payment by the grantee in money, of' the amount the value of the land exceeded, the advancement, the grantor proposed making. The mode of making the advancement, the parties intelligently selected, without fraud,, or undue influence, was a conveyance to the husband — notin trust, or for the use of the wife, or subject to any equity not expressed. It was certainly competent for the grantor to-adopt that mode of advancing to the wife, and heretofore, it was not unusual. It may have been deemed preferable to-a conveyance to the wife, or to the husband for her, which would have embarrassed the alienation of the estate. Whatever may have been the reasons for its execution, the deed in all its parts is the instrument in form and legal effect the-parties intended, and there is no ground on which a court can annul it, or convert it into another and different instru-' ment. The death of the wife, the subsequent marriage and death of the husband, may have introduced as a beneficiary a stranger to the affections of the grantor, but that is a legal incident of the estate, he voluntarily and intelligently created.

There is no error in the decree, of which the appellees can complain. The deci’ee must be affirmed. The appellant and the sureties on her appeal bond must pay one-half of the-costs of the appeal, and the next friend of the appellees the remaining half.