40 S.E. 1030 | S.C. | 1902
March 17, 1902. The opinion of the Court was delivered by
The plaintiff brought this action to recover dower in a tract of land in Pickens County, which was in the possession of the defendant, to whom A.H. Moon, plaintiff's husband, had devised said land pursuant to his contract as established in Bruce v. Moon,
It appears that the plaintiff was married to A.H. Moon in 1863, and lived with him until August, 1883, when they separated, the plaintiff executing the following instrument, which she called the contract of separation:
"State of South Carolina, county of Pickens. Know all men by these presents, that I, Mary E. Moon, of Pickens County, and the State of South Carolina, am the wife of A. H. Moon, for and in consideration of the sum of $1,600 — $600 of the said sum to be rated and consist of good personal property, to wit: One mule, one horse, cows, hogs, wagon *128 and buggy, farming tools, household and kitchen furniture, and also the present crop of every sort, growing upon the lands of the said A.H. Moon, and $1,000 which he, the said A.H. Moon, allows me in the purchase of one tract of land, situated in the county and State aforesaid, made by me from him, to me paid by the said A.H. Moon, of the county and State aforesaid, have remissed, released and forever discharged, and by these presents do, for me, my heirs, executors and administrators, remise, release and forever discharge the said A.H. Moon, his heirs, executors and administrators, of any and all manner of action and actions, cause and causes of actions, suits, debts, dues, sums and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, extents, executions, claims and demands whatever, in law and equity whatsoever, and especially for any alimony, or on account of any money, credits or property whatsoever, which he, the said A.H. Moon, may have any time come in possession of, from me or by me, in any way, which against the said A.H. Moon I ever had, now have, or which I, my executors, administrators, hereafter can, shall or may have, for, upon or by reason of, any matter, cause or thing, whatsoever, from the beginning of the world to the end of time.
"In witness whereof I have hereunto set my hand and seal, the 10th day of August and in the year of our Lord 1883, and the 108th year of the independence of the United States of America. Mary E. Moon [seal]. Signed, sealed and delivered in the presence of J.B. Smith, E.H. Bates."
It will be observed that the contract was executed in 1883, and must, therefore, be governed by the Constitution of 1868 then in force. Now, if it be true, under the authority of the cases of Shelton v. Shelton,
Having reached the conclusion that the intention to covenant to release dower is not clearly manifest from the terms of the instrument, it becomes unnecessary to consider whether the plaintiff had power to make such a contract to release dower as would estop her except by compliance with the statute, which prescribes the mode by which the favored right of dower shall be renounced. But see Townsend v. Brown,
The judgment of the Circuit Court is reversed.