60 So. 870 | Ala. | 1913
This is a bill by the complainant, appellant here, claiming to be the equitable owner of the widow’s right of dower in the lands of her deceased husband, who died in the year 1891, and seeking to have the same allotted and set apart to him, as an alienee of the widow, of her right of dower before allotment. The cause was submitted for final decree upon the pleadings and proof; and, upon the hearing and consideration thereof, the chancellor rendered a decree dismissing complainant’s bill, from which said decree the present appeal is prosecuted. Pretermitting any consideration of the question of the statute of limitations raised in the case, we are of the opinion that on the merits of the case, upon a fair and full consideration of all the evidence, the decree of the chancellor should be affirmed.
“Until assigned, her [the widow’s] right to dower is an equity, of which a court of law does not take cognizance; but, on the principle that an assignment of a right in action, though not assignable at law, will be protected in equity, a court of equity will uphold the widow’s alienation of her dower interest to a stranger, and protect the rights of the alienee; there being a valuable consideration paid, and the absence of fraud, imposition, or undue advantage.”—Wilkinson v. Brandon, 92 Ala. 530, 9 South. 187.
The defense of fraud, imposition, and undue advantage and no consideration paid is made by the answer to the bill. The respondent Marietta Roebuck was an illiterate old woman; could neither read nor write. The mortgage, under which complainant claims at foreclosure sale, was made to complainant’s brother, and the complainant superintended the preparation and execu
The chancellor properly, upon the whole evidence, dismissed the bill, and his decree will be affirmed.
Affirmed.