Lively v. Paschal

35 Ga. 218 | Ga. | 1866

Harris, J.

The many and strong cases cited and read by counsel for plaintiff in error, illustrate unmistakably the leaning of Courts in behalf of widows in claims to dower. We are not willing to add another, at least this case, to the long catalogue which evinces so palpably the weakness of even the Bench when a woman is a suitor. She is in a Court of Equity; the fundamental maxim upon which it gives relief is, that the party who asks equity must do equity. Acting on this rule, we must discard and throw out of -this case all of these arbitrary technicalities which stand in the way of administering substantial justice. What though at common law a contract cannot be made between husband and wife; what though the written contract here on the part of complainant releasing all claim to dower in lands thereafter to bo acquired by the husband could not be enforced by its principles and forms of procedure; yet, when it is made to appear to a Court of Equity, as is done here, that a very large and more than an adequate consideration was paid complainant by her then husband, Harwell, out of his property for such release, and that so far as he was concerned the contract was completely executed before the civil war begun, we cannot permit ,her, now that the negro property which she received, controlled, and enjoyed Jong before that war begun or was dreamed of, has been sw'*pt away and utterly lost to her by that war, to repudiate her contract with her husband, Harwell; tendering no equivalent in value to that of the property she had possession of through her trustee; such tender with interest upon the value of the property from the time received, would seem to be an indispensable preliminary to the relief sought. Without doing Equity we capnot recognize any claim of dower in and to land acquired by Harwell subsequent to the contract she made with him, and which the testimony shows she was so indefatigable in procuring to he made, and under the advice of counsel of her own selection. '

The Court of Equity below, as appears by the facts in the record, declined to give Mrs. Lively, formerly Mrs. Harwell, its assistance in subjecting the land puchased by Pascal from Harwell’s executor, to her claim of dower.

We think the Judge did right, and therefore affirm the Judgment below.