92 Ala. 530 | Ala. | 1890
Mattie Brandon filed the bill, December 20, 1888, for the purpose of obtaining an assignment of dower in the lands of which her first husband, Henry T. Wilkinson, was seized and possessed at the time of his death in Jammy, 1874; and also a homestead exemption. The assignment is resisted on the ground, that in December, 1884, complainant and her present husband, in consideration of fifteen hundred dollars, sold and conveyed all her right, title and interest in and to the real estate of her deceased husband, to W. W. Wilkinson, one of his heirs, under whom the other defendants claim. ’ The chancellor decreed that'complainant was entitled to assignment of dower, being oí opinion that W. W. Wilkinson acquired no interest by the conveyance, the same having been made before dower was assigned.
A conveyance of the dower interest to a person other than the terre-tenant. before it is assigned, has different operation M, law and in equity. The widow having no fixed, determinate i any specific part of the land until dower is allotted,
It appearing from the evidence that Wilkinson had not paid all the purchase-money, the chancellor was further of the opinion, that he could not insist upon the protection of his equitable rights, and that the principle declared in Reeves v. Brooks does not apply. Defendants are not appealing to the courts for aid; they ask no affirmative relief. Complainant seeks the intervention of the court, and defendants merely bring forward in bar of her asserted right a conveyance executed by her and her husband, absolute in form and terms, which is prima fade valid and operative in equity. The vacation of the conveyance is essential as preliminary relief. This may be done, and the dower assigned in one suit, on proper allegations and proof, that it was procured by fraud, imposition or undue advantage; also, the evidence showing that she has received nearly seven hundred dollars of the purchase-money, there should be an offer to restore it. The bill not only contains no such allegation, but makes no reference whatever to the conveyance; it comes only by way of defense; and until assailed and annulled prevents an assignment of dower for her benefit. Its effect and operation can not be defeated by proof, merely, that all the purchase-money has not been paid.
Reversed and remanded.