Ware v. Owens, 42 Ala. 212

42 Ala. 212 | Ala. | 1868

BYRD, J.

1. The evidence is not sufficient to establish the point made by appellant, that-the lot was partnership property. The deeds of the 6th of July, 1846, and 7th June, 1847, executed by the partners, do not indicate that the lot was held by them as partnership property, but as tenants in common. And the fact that they carried on a partnership business upon the lot, does not necessarily impress it with the character of such property. As Chief Justice Collier says in the case of Long’s Heirs v. Waring, 18 Ala. 153, “ so far as the partners and ther creditors are concerned, real estate belonging to the partnership is in equity treated as mere personalty, and so it will be deemed as to all other intents, if the partners have by agreement or otherwise purposely impressed upon it that character.” In this case it does not appear that the lot belonged to the partnership, although it belonged to the members thereof, nor that they purposely impressed upon it the character of partnership froperty. The question, therefore, whether a widow of one partner is dowable of land belonging to the partnership does not arise in this case. The court did not err in decreeing that appellee was entitled to her dower interest in the lot.

2. In the case of Boyd v. Harrison, 36 Ala. 533, this court held that the widow’s right to dower is governed by the law which was in force at the time of the husband’s death, and not that which was in force at the marriage, or may have been during its continuance. It is true, the husband in that case was seized of the land at his death ; and in this he had aliened it before the adoption of the Code. But upon principle and the reasoning in the case cited, we can perceive no distinction in the two cases, which would authorize us to lay down a different rule as applicable to the case in hand, from the one applied in the case of Boyd v. Harrison ; so far, at least, as this question is concerned.

3. Did the chancellor err in allowing appellee one-third of the rents from the time of filing the bill to the determination of the cause ?

The bill alleges that “on account of the improvements on said lot, and the character of the lot, it is impossible for dower to be set out by metes and bounds”; and the Code provides “in such case, the widow is dowable of the value of the land at the time of the alienation, the interest on one-third part thereof, to be paid to her annually, during her life, and secured, if necessary, by a lien on the land» unless the parties agree to a compensation in gross, which the court must give effect to.” — § 1370.

Now, suppose the land was worth at the time of alienation, thirty dollars an acre, and at the time of the death of the husband, ten dollars an acre, with the improvements made by the purchaser, what would the widow be entitled to under this statute ? It would seem, to “the interest” on one-third part of the value of the land at the time of alienation ; and that, although, such annual interest might amount to more than the whole value of the land. This might seem a singular result, but so the statute reads. Suppose such interest amounts to more than one-third of the annual rents of the land, would she be compelled to take the rents, or would she be entitled to the interest as provided by the statute from the filing of the bill till the determination of the suit ? After that, she certainly is not entitled to anything but the annual interest on one-third of the value of the land at the time of the alienation. And we see no reason why the same rule does not apply before as after the determination of the suit. The statute does not give her any election to take rents or interest before the determination of the suit. The statute fixes the measure of her compensation, and it relates as well to that ■which accrues before, as to that which accrues after suit brought. The statute prescribes a rule for the admeasurement of the rights of a widow in such a case, different from, and in the stead of, the one at common law. And I think the widow is entitled to the compensation given by statute from the death of the husband. This view is in harmony with the rule adopted in the cases cited from 35th and 37th Alabama Reports, and with the principle which favors dowers ; and is in accord with the language of the statute.

We do not think this view conflicts with the following decisions of this court: — Frowner and Wife v. Raney, 9 Ala. 901; Beavers et al. v. Smith, 11 ib. 20 ; Johnson v. Elliott, 12 ib. 114; Portier et al. v. Barclay et al., 15 ib. 430 ; Fry v. Mer. Ins. Co., ib. 810; Springles’ Heirs, &c. v. Shields et al., ib. 295. These cases were all decided before the adoption of the Code, and the cases cited from 11th and 17th Alabama Reports, we conceive to be in accord with the views expressed.

In the case of Francis v. Garrard, which was a case similar to this, it is said that the widow is “entitled, by way of damages, to one-third the rents- of the premises, to be estimated without considering the improvements made by the alienee from the time the bill was filed, which will be decreed her as an ordinary monied demand.”

Now, suppose the land at the time of alienation was unimproved and not yielding rent, but at the death of the husband, was highly improved by the alienee, and but for such improvement, would still be unyielding rent, how could she be entitled to any damages between the filing of the bill and the termination of the suit ?, Yet if the land had been worth at the time of alienation one hundred thousand dollars, the statute would, in our opinion, give her a right to one-third of the interest on one-third of the value. The case last- cited was decided prior to the adoption of the Code. § 1370 of the Code has never been construed with reference to the question under consideration. The cases of Perine v. Perine, 35 Ala. 644; Slatter v. Meek and Wife, ib. 538 ; and McAllister v. McAllister, 37 ib. 484, were decided subsequent to the adoption of the Code ; but in those cases, the husband died seized of the land, and a different rule applies to that class of cases than to this, except that the right in both cases vest on the death of the husband, and must be enforced from that time.

The court should have directed the register to take an account of the annual interest on one-third of the value of the land at the time of alienation, from the death of the husband to the term of the court to which the report is directed to be made, allowing interest on each year’s interesfc, from the end of such year to the term at which the report is required to be made, and add up the same, and a decree should be rendered for the sum ; and a decree should be rendered for the interest accruing each year during the life of the widow, subsequent to the decree, as was done in this case. «

4. The statute has fixed this rule, and has allowed no abatements for taxes or anything else, and the court cannot make any allowance therefor.

We desire to administer the law as we find it, not as we would have it. We can see how this statute (§§ 1369, 1370,) may, in some cases, operate very hardly on purchasers, in the present condition of the country, when lands are not worth as much now in a high state of improvement, as they were a few years ago in a wild stale or condition.

But this is a matter for the legislature to consider and remedy, and not for the courts.

For the error pointed out, this cause must be reversed and remanded.