114 Ala. 259 | Ala. | 1896
The appellant filed the present bill to recover a dower interest in certain lands, which were sold under execution against her husband in his lifetime, and which were purchased at the execution sale by Pleasants and Gates. The bill shows, that after their purchase, the lands were sold to the respondents, a part to Thomas M. Wallace, and a different part to Thomas W. Williams. The bill avers marriage, seizin in fee by the husband during marriage, sale under execution, and purchase as above stated, and the death of the husband. It would seem on principle and authority that the averment of these facts makes a pringa facie case for relief, but the court sustained a demurrer to the bill, and the appeal is prosecuted from the decree of the court sustaining the demurrer. One ground of demurrer is, that as the bill shows that different-parties own the land in different rights, the two can not be joined as respondents in the same bill. The objection is not good. The purpose of the bill is to enforce a claim for dower. The claim is single. It applies to the whole land alike. It was sold by the sheriff as a whole, and the respondents purchased with legal knowledge of complainant’s right to dower to these lands. In section 632 of Story Equity
The other grounds of demurrer will be considered together, for they all rest upon the same principle.- The question raised by these grounds of demurrer is, whether a bill filed for the recovery of dower must affirmatively show, either that the husband died intestate, or that he died testate but made no provision in his will for the benefit of complainant; in other words, that the bill must not only show that her right of dower accrued, but affirmatively that it is not barred. We -are quite sure, that the defense can not be raised by demurrer. Mr. Daniell, in his work on Chancery Pleading and Practice, says : “Whenever any ground of defense is apparent upon the bill itself, the appropriate mode of defense is by demurrer.” — § 542. “A demurrer will lie whenever it is clear that, taking the charges in the bill to be true, the bill would be dismissed at the hearing.” — ib. 543 ; Story Eq. Pl., §448. In Grimmet v. Henderson, 66 Ala. 521 the principle is declared, “that an alleged fact, not appearing on the face of the complaint, is a matter for a plea, but nota cause of demurrer.” — Huss v. Central R. R. Co., 66 Ala. 472. Whenever a demurrer sets forth facts, which do not appear on the face of the bill, and which if true, shows that complainant’s cause of action is barred, or that the bill should be dismissed, it is termed a speaking demurrer, and presents a defense available only by way of a plea or answer. Dower attaches upon marriage to every estate of inheritance of which the husband is seized during coverture. It is inchoate until death. Neither the husband nor his creditor can deprive her of this right, against her consent. An acceptance of a testamentary devise or bequest to her by her husband, in lieu of dower, is a bar to any proceeding instituted against her, husband’s estate for its recovery. 1 Brick. Dig. 621, § 133 ; Hilliard v. Binford, 10 Ala. 977.
Our conclusion renders it unnecssary to construe section 1963 of the Code of 1886, at this time. We have no right to presume that any question involving its construction will arise, and if we were to venture upon its consideration, our discussion and conclusion might prove to be mere dictum.
Reversed and remanded.
