15 Ala. 439 | Ala. | 1849
The decree in this case, cannot be sustained. The register reported one-sixth of the entire value of the premises, as dower, and the defendants are required to bring this sum, together with one-third the rents from the death of the husband, and the costs, into court, and on failure, the premises are decreed to be sold to raise the amount.
The chancellor, it seems, adopted the South Carolina rule, which is influenced by a statute of that State. Here we have no such statute, and our decisions must conform to the common law.
The mode of assigning dower in such cases as the one before us, has been so fully discussed, and decided in Beavers and Jemison v. Smith, 11 Ala. Rep. 20, and in Johnson v. Elliott, 12 Ib. 112, that it is altogether needless to say more upon it here. These cases will constitute suflicient guides for the future conduct of the cause, and show that the chancellor erred in decreeing a sale of the premises.
The counsel insists, that the marriage not having been followed by cohabitation, was not consummated, so as to give to the wife the right of dower. The position cannot be supported. Mr. Jacobs (tit. Marriage) says, “nothing more is necessary to complete a marriage by the laws of England, than a full, free, and mutual consent between the parties,” they being capable of entering into such a relation. Mr. Wood, in his Institutes of the Civil Law, p. 120, lays down the doctrine broadly, “that espousals de praesenti, or marriage, is contracted by consent only, without carnal knowledge.” It is clear that the vinculum matrimonii, is the consent freely given by the parties competent to contract. “Nuptias, non concubitas sed consensus facit,” is a maxim both of the civil and common law. 2 Kent’s Com. 89; Reeve’s Dom. Rel. 195, note 1; Dig. L. 50, tit. 17, § 30; Jackson v. Winne, 7 Wend. Rep. 50; Fenton v. Reed, 4 Johns. Rep. 52; Hantz v. Seeley, 6 Binn. Rep. 405; Bunting v. Leppingwell, 6 Coke’s Rep. 29; 2 Salk. 447.
The marriage, in this case, having been solemnized according to our statutes, we are bound to regard it as valid
■ It seems that the tenant in dower was greatly favored by the common law, so much so, that before the statute of Westminster 2, (13 Edw. 1) the adultery and elopement of the wife did not bar her right. 2 Co. Inst. 435; Park on Dower, 75.
So in Cogswell v. Tibits, 3 New Hamp. Rep. 41, it was held, the wife did not forfeit her right to dower by committing adultery, unless she eloped with the adulterer.
It is said also, if the wife refused to bring an appeal of her husband’s death, when he was killed by another, she shall
For the error in the decree above noticed, the cause is reversed, and remanded for further proceedings.