Johnson v. Elliott , 12 Ala. 112 ( 1847 )

GOLDTHWAITE, J.

1. As the decree settling the equities of the cause, provides for its own suspension until the bond is given which the statute requires, when the defendant is a non-resident, and as there is some doubt with us whether that confirming the master’s report, and directing the sale, is not to be considered as within the reservation of the other, we shall put our present decision on other points of the record.

2. The decree is erroneous in directing a sale of the entire estate conveyed by the husband, for the purpose of producing the sum ascertained by the master as the value of the complainant’s dower interest. It is evident, that under a forced sale, it might happen that the whole interest which the husband had, and out of which the right of dower arises, would be sold without producing more than the sum decreed as compensation to the widow, and thus the purchaser, instead of losing one-third of the estate during the life of the widow, would be deprived of the whole. This matter was considered fully in the recent case of Beavers v. Smith, 11 Ala. 20, and we there held, that when compensation is made in money, the decree should not be for a gross sum, by estimating the supposed present value of the widow’s life estate, but for the payment annually of the sum ascertained to be the annual value of the dower interest, during the life of the dow-ress, secured by a lien upon the estate. It was erroneous, therefore, in our judgment, to decree a specific sum to the widow, to be produced by a sale of the premises from which the right of dower arose.

3. It also admits of question, whether the sum ascertained as due the complainant, for her proportion of the back rents was properly chargeable as a lien on the estate. It seems to us, this is a matter for which the decree should have been a mere money decree, against the defendant, and the effect of which would be to charge him personally. We do not see well, how the decree in its present form could, in this particular, affect him injuriously, if he remains the owner of the premises, and therefore might not feel warranted in reversing on this ground only, yet, inasmuch as a lien or charge created pending the suit, would seem entitled to override the claim of the complainant, on account of the back rents, we think any future decree should be put on the proper ground.

Decree reversed and cause remanded for further proceedings.