4 S.C. 37 | S.C. | 1872
The opinion of the Court'was delivered by
By the 20th Section of the 4th Article of the Constitution the Probate Court is vested “ with jurisdiction in business appertaining to minors and the allotment of dower.” The Act of 21st September, 1868, 14 Stat., 77, defines its extent and regulates its exercise.
The material objection to the decree submitted by the appellant in this case, ordering the allotment of dower, is raised by his second ground of appeal to the Circuit Court, and brought here by him from that Court for our revision, to wit: “Because the Probate Judge erred in not sustaining the objection to the jurisdiction taken by the defendant, upon the ground that a question of fact had been made by the evidence so important and material as to require the verdict of a jury, which the Probate Judge had no right to empannel.”
If this proposition is sustained there would be an end to the jurisdiction of the Probate Court in cases of dower. The determination of all questions in Courts of Justice depend on the facts through the existence and virtue of which rights are claimed, and these facts must appear before the principles of the law can be interposed to ascertain what benefits they, confer, or what duties they impose.
In every case of dower it must be shown that the demandant is the widow of the husband who, during the coverture, was seized of the premises to which the defendant, either by possession or otherwise, assorts a title in bar of her recovery. The objection, it seems from the language of the appeal, was made after the testimony had been heard.
The Probate Judge, even if it was conflicting, was obliged to decide Avithout the intervention of a jury, for he had no authority to summons or empannel one. His judgment must be formed from his solution of the facts and his understanding of the laAV. The appellant was not Avithout remedy, and if he failed to pursue the course by Avhich his claim to a jury could have been secured, the fault is his.
By the Act of 1868, (14Stat., 21st Section, p. 78,) “The Circuit Court shall have appellate jurisdiction of all matters originally Avithin the jurisdiction of the Probate Court.” The 26th Section requires “ a certified copy of the record of the proceedings appealed
It was the default of the appellant which deprived him of a finding on the facts by a jury in the Circuit Court. By the said Act of 1868, Section 28 : “ When such certified copy shall have been filed in the Circuit Court, such Court shall proceed to the trial and determination of the question according to the rules of law; and, if there shall be any question of fact, or title to land, to be decided, issue may be joined thereon, under the direction of the Court, and a trial thereof had by a jury.” This, as well as the 26th Section of the same Act, is repeated in the Code of Procedure, Sections 60, 62. No application was made for an issue to be joined “on any question of fact or title to land to be decided, and a trial thereof had by a jury,” and in the absence of it the issues were to be taken as submitted to the sole determination of the Judge. The grounds of appeal make no exception, because the case was heard -without a jury in the Circuit Court, where the appellant might have moved for and obtained one, but object, because it was heard without a jury in the Probate Court, which was without power to provide such a body.
There -was no error in admitting the copy deed of the United States Marshal by which the land was conveyed to the defendant. “ The demandant in dower is not required to make out a regular-chain of title in her husband.” — Forrest vs. Trammell, 1 Bail., 77. To show prima facie seizin in the husband, it has been held enough to prove “ that the defendant went into possession under one to whom the husband had conveyed.” — Platt vs. Payne, 2 Bail., 319. Even proof that the husband was in possession during coverture, claiming title is sufficient evidence of seizin in him. — ■ 2 Scribner on Dower, 200. In the case before us, no evidence was necessary to establish the title of the husband during the coverture, for the defendant, in his answer, admits that he purchased the land as the property of the husband, at a sale by the Marshal, at the price stated in the petition, and actually filed, as an exhibit, a copy of the deed by which it was conveyed.
It is not necessary to discuss the general question made by the third ground, whether a widow can be barred of her dower in
The motion is dismissed.