3 Ga. 207 | Ga. | 1847
By the Court.
delivering the opinion.
The plaintiffs in error, Daniel Rambo and Harris Hays, were the purchasers of lands at sheriff’s sale, under an execution in favour of Parish Carter vs. the executors of Robert J. Chisholm, deceased, issued from Decatur Superior .Court. Application was made to the sheriff, Augustus J. Bell, who is the defendant in error, to put them into possession of the land, who declined doing it. Whereupon a rule nisi was moved, calling upon him to show cause why he should not forthwith put the purchasers in possession. The sheriff showed for cause, that William Wooten, who had intermarried with the widow of the defendant in execution intestate, was in possession, under a claim of dower in his wife, and therefore he had declined putting them into possession until fur
But by act of our own legislature, the widow is entitled to the tenements as part of her dower. She is entitled by statute law in Georgia, to one-third part of the lands, including the tenements, having regard to the shape and valuation of them. Hotchk. 433; Act of 21st Dec. 1839, sec. 1; Pam. 148. By the common law she is not entitled to the tenements, and our statute is to that extent an enlargement of the common law. This humane provision of our statute, is in repeal of the ge neral rule, so far as the tenements are concerned, that the widow being in possession, cannot hold them against the person holding the fee, until after assignment. She being in possession of the tenements, to which she is entitled by statute, may hold that possession although her dower has not been assigned. In this case she held possession continuously, of the tenements, from the death of her husband until the rule against the sheriff was moved. We therefore confirm the judgment of the Court below, so far as relates to the tenements in which she was actually in the possession. I am gratified to learn that this judgment is sustained in several of the States of the Union, where there are statutes like our own, giving the mansion house and other tenements to the widow as part of her dowry — as in New Jersey, Kentucky, Indiana, Illinois, Alabama, Virginia, Connecticut and Missouri. In these States, upon the death of her husband, the widow is by law deemed in possession, as tenant in common with the heirs, to the extent of her right of dower; and her right of entry does not depend upon the assignment of dower, which is a mere severance of the common estate. Den vs. Dodd, 1 Hals. 367; Sledman vs. Fortune, 5 Conn. R. 462; Taylor vs. McCraken, 5 Blackf. Indiana R. 261; Stokes vs. McCallister, 2 Missouri R. 163.
As to her dower in these lands, other than the tenements, we think the common law rule obtains, and she is not entitled to the possession until after assignment. We therefore send this cause back for a rehearing, in accordance with this opinion.