Wood v. Morgan

56 Ala. 397 | Ala. | 1876

STONE, J.

-Courts of equity entertain concurrent jurisdiction with courts of law, in the assignment of dower, in all cases. This jurisdiction is not affected by the statutes conferring jurisdiction on courts of probate.— Francis v. Garrard, 18 Ala. 794; Owen v. Slatter, 26 Ala. 547; Brooks v. Woods, 40 Ala. 538; Irvine v. Armistead, 46 Ala. 363. And equity alone has jurisdiction to decree compensation in lieu of an assignment of dower by metes and bounds. — Barney v. Frowner, 9 Ala. 901; Beavers v. Smith, 11 Ala. 20; Smith v. Smith, 13 Ala. 329; Thrasher v. Pinckard, 23 Ala. 616 ; Irvine v. Armistead, supra. And so, equity alone can award rents or mesne profits, for the time elapsing between the death of the husband and the assignment of dower. — Slatter v. Meek, 35 Ala. 528; Perrine v. Perrine, 35 Ala. 644; Waters v. Williams, 38 Ala. 680.

“ When land, out of which dower is demanded, has been aliened by the husband, and, from improvements made by the alienee, or from any other cause, an assignment of dower by metes and bounds would be unjust, the judge of probate .must decline jurisdiction, and application must be made to the court of chancery.” — Rev. Code, § 1640.

“ 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.”- — Bev. Code, § 1641.

Under these sections, the question arose in Ware v. Owens, 42 Ala. 212, by what standard the allowance to the widow should be measured, for the period between the death of the husband and the assignment of dower? The court ruled, that she was entitled to the same measure of compensation, both before and after the asssigmnent of dower. In that case, it was fixed at the statutory rate of annual interest on one-third of the value of the land at the time of alienation. And tiiis right of dower attaches, and becomes complete, from the moment of the husband’s death.— Irvine v. Armistead, supra.

It is contended for appellant, that, inasmuch as the lands in the present case were not in fact aliened by the husband, but were sold and conveyed by the sheriff, the rate of compensation is not governed by section 1641 of the Bevised Code, supra. It is further contended that, in this case, the dower should have been assigned by metes and bounds. A full answer to the last proposition is, that the bill avers that the execution purchasers had made certain valuable improvements, and that the “dower interest in said lands could not be equitably marked out and set aside [off ] by metes and bounds, in consequence of said improvements.” The answers repeat this averment, and expressly admit its truth. This, then, is not an issue in the cause; and the chancellor was left without option in the premises. He must render a money decree, or none.

Long before section 1641 of the Bevised Code (section 1370 of the Code of 1852) became statute law, this court had substantially adopted the same rule, when, by alienation and improvement of the premises, it had become impossible to asign dower equitably by metes and bounds.— See Jemison & Beavers v. Smith, supra; and Francis v. Garrard, supra. So that the section of the Code we are considering is rather a legislative recognition of an existing rule, than the enactment of a new one. It is simple and easy of administration ; and we think harmony of decision, and the necessity for an intelligible, fixed rule, alike require that we apply it in all cases, where, from any supervening cause, dower can not be assigned by metes and bounds, without manifest injustice. We therefore hold, that the chancellor did not err in adopting that as the rule in this case.

The only remaining question is the exception to the register’s report, fixing the value of the lands. We are not able to affirm that in this matter he erred. He took about the average of the several valuations given by the witnesses; and, conceding that all were equally intelligent and credible, his finding furnishes no ground for reversal.

The decree of the chancellor is affirmed.