Thomas v. Cowin

39 So. 898 | Ala. | 1906

DENSON, J.

The purpose of the bill in this case is to have a dower interest carved out of the real estate described and set apart to the widow, the complainant in the' hill. The bill avers that the husband was seized in fee of the land described during the coverture, and that the complainant has never, by conveyance or otherwise, aliened or relinquished her right to do Aver in the same. The bill was demurred to, and motion made to dismiss the same for Avant of equity. Both the demurrer and the motion were overruled, and from this decree the present appeal is prosecuted.

The averments of the bill undoubtedly give it equity. The demurrer proceeds upon the theory that the bill sIioavs that the lot out of Avliich it is sought to crave the dower interest, and Aihich was sold and conveyed to the husband of the complainant during his life, was a lot in a survey which had been surveyed and platted or mapped' by the owner, but not in accordance with the provisions of the act of February 28, 1887 (Acts 1886-87, p. 98), and that, in violation of said act, which by section 7 (page 95) imposed a penalty on the owner of the land for such violation, the contract of sale was void, and consequently passed no title from the vendor to the vendee. The act in question did not declare the contract made in violation of its provisions void, but made it a misdemeanor for the owner of lands to survey and plat and sell in violation of the terms of the said act. It was never intended that it should operate as a snare, for the innocent purchaser. The prohibition and the penalty are expressly directed against the owner of the land who violates the statute. On well-settled principles, when the statute makes the doing of an act a misdemean- or, the contract arising out of the act is not enforceable; “yet it is subject to this qualification: that, although the legislature may forbid the doing of a particular act, a party not a privy to it, or involved in the guilt of the transaction, may recover of the guilty actor, unless the act itself is void.” — Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538; Whetstone v. Br. Bank of Montgomery, 9 Ala. 875.

In the case cited by counsel for appellants, the attempt was by the guilty actor to enforce a contract made in violation of the statute. So far as the record shows, Cowin, the husband of the complainant, was an innocent purchaser and vendee, and in no sense “involved in the guilt of the transaction.” And the same may be said as to his immediate vendor, Houston. We feel no hesitancy in declaring that by the conveyance to Houston, and from Houston to Cowan, the legal title to the land in question passed to the latter. The deed is not void for uncertainty in description. It clearly falls within that class covered by the doctrine of “Id cert-um est quod certum reddi potest.”

We find no error in the record, and.the decree will be affirmed.

Affirmed.

Haralson, Dowdell, and Simpson, 33., concur.