Potier & McCoy v. Barclay , 15 Ala. 439 ( 1849 )

CHILTON, J.

The decree in this case, cannot be sustained. The register reported one-sixth of the entire value of the premises, as dower, and the defendants are required to bring this sum, together with one-third the rents from the death of the husband, and the costs, into court, and on failure, the premises are decreed to be sold to raise the amount.

The chancellor, it seems, adopted the South Carolina rule, which is influenced by a statute of that State. Here we have no such statute, and our decisions must conform to the common law.

The mode of assigning dower in such cases as the one before us, has been so fully discussed, and decided in Beavers and Jemison v. Smith, 11 Ala. Rep. 20, and in Johnson v. Elliott, 12 Ib. 112, that it is altogether needless to say more upon it here. These cases will constitute suflicient guides for the future conduct of the cause, and show that the chancellor erred in decreeing a sale of the premises.

2. There are no allegations in the original bill, which would limit the issue to the lands of which the husband of the demandant died seized, and the mis-recitals of the contents of the original bill in the supplemental bill, which was filed to reverse the suit in the name of the husband, whom complainant, in the mean time, had married, cannot have the effect to change the character of the relief sought by the original bill. The supplemental and original bills must be taken together, as forming but one bill, and although the allegations are somewhat loosely made, and liable to hypercriticism, still we think it is substantially averred that the deceased was seized of the premises in wliich dower was allotted during the coverture, and a discovery is sought as to other lands of which he died seized and possessed, in which dower is also prayed. 14 Ala. Rep. 150.

3. As to the main defence relied upon, the facts on which it rests may be thus briefly stated: The complainant, a young lady, aged about 16, was married to the deceased, who was an elderly gentleman. The espousals and solemnization of the marriage having been completed, it appears the relation stopped; for although she immediately went home with her husband, she refused to recognize him as such, and having remained for a few days, she abandoned him, and returned home to her mother, where she continued to live up to the death of her husband. In the mean time, she rejected all overtures for reconciliation, protesting he was no husband of hers, and that she would have nothing to do with him, or any thing that belonged to him.

The counsel insists, that the marriage not having been followed by cohabitation, was not consummated, so as to give to the wife the right of dower. The position cannot be supported. Mr. Jacobs (tit. Marriage) says, “nothing more is necessary to complete a marriage by the laws of England, than a full, free, and mutual consent between the parties,” they being capable of entering into such a relation. Mr. Wood, in his Institutes of the Civil Law, p. 120, lays down the doctrine broadly, “that espousals de praesenti, or marriage, is contracted by consent only, without carnal knowledge.” It is clear that the vinculum matrimonii, is the consent freely given by the parties competent to contract. “Nuptias, non concubitas sed consensus facit,” is a maxim both of the civil and common law. 2 Kent’s Com. 89; Reeve’s Dom. Rel. 195, note 1; Dig. L. 50, tit. 17, § 30; Jackson v. Winne, 7 Wend. Rep. 50; Fenton v. Reed, 4 Johns. Rep. 52; Hantz v. Seeley, 6 Binn. Rep. 405; Bunting v. Leppingwell, 6 Coke’s Rep. 29; 2 Salk. 447.

The marriage, in this case, having been solemnized according to our statutes, we are bound to regard it as valid and complete, and as entitling the parties respectively, to all the rights which accrue upon entering into such relation.

4. The marriage being valid, has the complainant, by her conduct, forfeited her claim to dower in a court of equity, in which forum she seeks its allotment ? This is a question of some embarrassment. We are not prepared to say, that if the object of the complainant in submitting to the marriage ceremony, was merely that she might entitle herself to be endowed of the property of the deceased, without any intention of performing any of the duties devolved upon her as a wife, and that had she carried out this intention, it would not have amounted to a fraud upon the husband, which in equity would induce the court to refuse its aid in allotting her dower out of his land. We express no opinion upon this point, as the facts of this case do not call for it. We think the proof in the record shows that the marriage was contracted and solemnized in good faith, and that the conduct of the lady, so unusual, as well as reprehensible, is to be attributed, not to any intention, existing previous to, or at the time of marriage, but to a sudden sense of the unfitness of the match, which resulted in disgust for her husband, and at once banished all hope of that affection, so indispensable to render this most sacred relation, the source of joy and domestic comfort. Her conduct was certainly indefensible, unless indeed it finds an apology in her tender years, and consequent indiscretion, and in the unfortunate importunities of friends. Be this as it may, we find no warrant in the law, which equity must follow, to bar her right of dower by reason of it. And the learned counsel has not been able to find any adjudicated case, indicating such a rule.

■ It seems that the tenant in dower was greatly favored by the common law, so much so, that before the statute of Westminster 2, (13 Edw. 1) the adultery and elopement of the wife did not bar her right. 2 Co. Inst. 435; Park on Dower, 75.

So in Cogswell v. Tibits, 3 New Hamp. Rep. 41, it was held, the wife did not forfeit her right to dower by committing adultery, unless she eloped with the adulterer.

It is said also, if the wife refused to bring an appeal of her husband’s death, when he was killed by another, she shall not lose her dower; for this is only a waiver of the privilege the law gives her, to be avenged of her husband’s murderer. So it seems, if she refused to minister, or come to her husband in his sickness, yet she shall be endowed, “ for this is only undutifulness, which the law does not punish with the forfeiture of her subsistence.” 2 Bac. Abr. 360, per 364. Indeed, such was the privileged character of dower at the common law, that although the parties were infra anuos nubiles, yet, according to Lord Coke, “ if the wife be past the age of nine years at the husband’s death, she shall be endowed, of what age soever her husband be, albeit he were but four years old.” Co. Lit. 33, a. So; in cases where the marriage was void causa precontracts, consanguinitatis, frigiditatis, or other similar causes, yet if the husband died before sentence of divorce pronounced, his wife de facto was entitled to dower. 2 Bac. Abr. 370. These authorities may suffice to show, that even though our statute authorized a divorce for an abandonment of ten months, instead of three years, yet no divorce having been obtained, the wife is dowable.

5. The counsel for the defendants below, insists, that the court of chancery should apply the ordinary rules which govern its action in civil contracts, to this case, and that the wife, having repudiated the contract of marriage, and violated it in toto, can claim no benefits under it. To this we reply, that dower is a legal right, and whether application for its recovery be made to a court of law or equity, the principle of decision is the same. 15 Peters’s Rep. 21. When it is consummated by the three requisites, marriage, seizin, and death of the husband, the statute makes it imperative upon the court to allot it. Digest, 172. And it is for the legislature, not the courts, to prescribe the causes for which it may be forfeited. This may be, and doubtless is, a hard case, but the law would cease to be a rule of action, if the courts may bend its provisions to meet the exigencies of such cases.

6. There was no error in making the husband of the demandant a party to the bill. It may be well questioned, whether he was not an indispensable party. Adams v. Barron, 13 Ala. 205. See Hickman et al. v. Irving’s heirs, 3 Dana’s R. 125, as to the husband’s interest.

7. It may be well to observe, lest our silence may be misconceived, that we do not see on what rule of evidence the copy of the deed from Mansony to Barclay was admitted. No notice was given to the opposite party to produce the original, nor was it shown to have been lost. This secondary evidence was, then, clearly inadmissible.

8. There is nothing in the objection, that the commissioner swore the witnesses to the deposition they gave. He was invested with this power by the commission, as an officer of the court pro hac vice. 9 Por. 160. The objection was also too late, being made for the first time at the trial. Scott v. Baber, 13 Ala. Rep. 182. As to the competency of the commissioner, see 13 Pick. 279.

For the error in the decree above noticed, the cause is reversed, and remanded for further proceedings.