Vaughn v. Vaughn, 60 So. 872

Vaughn v. Vaughn

60 So. 872 | Ala. | 1912

ANDERSON, J.

While the pleader designates the j) resent bill as a “cross-bill,” we do not so consider it, as it shows that the original bill had been dismissed.

Nor do we understand that it is a bill of revivor, as there was no abatement, but a dismissal of the original suit. Section 3120 of the Code of 1907.

Neither can it be treated as a good bill of review', as it contains no charge of fraud, error of law apparent upon the record, or newdy discovered evidence.—McCall v. McCurdy, 69 Ala. 65; 3 Mayfield’s Digest, 307.

Therefore, the only theory upon which the bill can be said to contain equity is as an original bill for partition and the allotment of dower, and for this purpose, we think, that it contains equity; but the heir, Susie Miles, is a necessary party, and the bill cannot be maintained against John W. Vaughn alone.

It is true that Vaughn bought most of the land from the heir; but it also appears that he conveyed some of it to said heir Susie Miles; and, for aught that appears, it may be as valuable as the portion received by Vaughn, and, if it is, this should be treated as a voluntary partition between the joint owners, subject, of course, to complainant’s marital rights in and to the interest of her deceased husband, but which a court of equity would enforce against the share of the heir rather than upon the interest conveyed to the cotenant of the father. As we understand the law as to the right and enforcement of dower in lands jointly held, there should be a partition and the dower fixed as against the share allotted to the estate or heir of the deceased husband. — 10 Am. & Eng. Encyc. Law, p. 176, and note 4. If there has been a voluntary partition, to which the widow was *216not a party, it would not be binding on her, if unjust, and she could proceed to impress her dower upon the interest to which her husband’s estate would be entitled; yet, if the partition has been equitable and fair between the heir and the joint owner with his ancestor, we see no reason why a court of equity cannot impress the interest received by the heir of the deceased co-tenant with the dower to which the widow is entitled. If the division between the daughter and her uncle John W. Yaughn, as mentioned in the bill, was fair and just, this complainant should look to the land conveyed to her daughter for the enforcement of her marital rights. If, on the other hand, the division Avas not equitable, she can no doubt impress her dower upon so much of the property as the estate of her deceased husband should have under a fair and equitable partition. The bill should repudiate the division and charge that the part assigned to the heir Avas inadequate to afford her the dower to which she Avould be entitled, else it should be filed against the heir alone for the purpose of subjecting the interest of said heir to the claim of dower.

While the present bill must be considerably amended so as to render it immune from demurrer, yet it contains equity for the purpose of enforcing the marital rights of the complainant in and to the lands left by her deceased husband, and AAdiich can be enforced by amendments to the bill, which avIII not work a departure; and as long as the bill contained equity, Avhether Avell or badly set up, it should not have been dismissed during vacation.—Kyle v. McKenzie, 94 Ala. 236, 10 South. 654; Singo v. Brainard, 173 Ala. 64, 55 South. 603. Moreover, there was no general demurrer to the bill for want of equity, as provided by section 3121 of the Code of 1907, and, notwithstanding that some of the special demurrers were properly sustained, the action of the *217chancellor in declaring that the bill, as amended, was without equity, and, in dismissing the same, was gratuitous, and the same should not have been dismissed in vacation, when the complainant had no opportunity to amend or to decline to do so.

Most of the demurrers raised the question of laches or prescription; and the chancellor evidently reached the conclusion that the bill could not be maintained because not filed within 20 years after the death of the husband. It is true that section 3837 of the present Code fixes the statute of limitations as to dower at three years in favor of an alienee of the husband or any one claiming under him, and at 10 years in all other cases. This 10-year provision has no application to the present bill as it first appeared in the Code of T907. There was therefore no statutory bar as against the dower of this complainant in favor of one not the alienee of the husband, and she could be cut off only by a conclusive presumption of extinguishment, which arises after the expiration of 20 years from the consummation of the right of dower, and in the absence of evidence which shows a recognition of the right by parties whose estate is affected by it.—Barksdale v. Garrett, 64 Ala. 277, 38 Am. Rep. 6. The bill before amendment averred a recognition of the complainant’s dower right by Susie Miles, and was amended so as to charge a recognition by John W. Vaughn, and was not, therefore, after amendment, subject to the demurrers of the said Vaughn setting up laches. As above stated, this is not a cross-bill, and was subject to the sixth ground of demurrer.

While the bill, as amended, sets up that the respondent Vaughn occupied the land in subordination to and in recognition of complainant’s homestead and dower right, the averment is a mere conclusion of the pleader, and the facts showing the recognition or subordination *218should be set out. The amended bill was subject to the third ground of demurrer, as interposed to said amended bill.

The decree of the chancery court, in sustaining the demurrers as above mentioned, is affirmed; but there was error in holding that the bill, as amended, was without equity and in dismissing same in vacation, and the decree in this respect is reversed, and the cause is remanded.

Affirmed in part, and in paid reversed and remanded.

Dowdell, C. J-., and Mayfield and de Graffenried, JJ., concur.