30 Ala. 131 | Ala. | 1857
The plaintiff derived title to the land, the rent of which is in question in this case, from Armstead Oakley, by a conveyance which was not so
These charges must be sustained, under the decisions of this court. In Inge v. Murphy, 14 Ala. 289, it was held, that the widow, whose husband had his dwelling-house on the land at the time of his death, could recover rent against the husband’s alienee, for the period between the husband’s death and the assignment of her dower. The opinion in Shelton v. Carroll, 16 Ala. 148, decides, that where the husband, at the time of his death, occupied premises previously aliened by him, the widow, who had not transferred nor received an assignment of her dower, could successfully resist an action of ejectment brought by the alienee against the tenant of herself and second husband, notwithstanding her first husband was the tenant of the alienee at the time of his death, and her second husband had paid rent to the alienee. In McLaughlin v. Godwin, 23 Ala. 846, this court decided, that the heirs were not entitled to recover rent received by an administrator, for the time prior to the assignment of dower, because the use and occupation of the land belonged to the widow, and not to the heirs. It is also said in Shelton v. Carroll, supra, that the alienee of a husband, whose wife did not assign dower, stood in the same position with the heir, as to his right to resort to a court of chancery to
The widow’s right to the occupation and use of the mansion-house, and of the plantation therewith connected, does not depend upon the fact of her actual possession, nor upon the fact of her having made a demand, or asserted affirmatively her claim. To hold otherwise, would do violence to the authorities quoted above. The case of Shelton v. Carroll, supra, cannot be reconciled with the position, that the widow’s quarantine, or right to the rents incident to it, depends, like her right to damages incident to dower, upon a demand made. She is entitled to the mansion-house at which her husband most usually resided before his death, and plantation connected therewith ; and until that right is terminated by the assignment of dower, it is as perfect and exclusive in its character, as any other title to land; and another person could no more recover rents accruing during the pendency of her right, than he could recover rents accruing during the pendency of any other title. These views are decisive in favor of the propriety of the refusals to charge by the court below as asked by the plaintiff.
The judgment of the court below is affirmed.