Oakley v. Oakley , 30 Ala. 131 ( 1857 )

"WALKER, J.

The plaintiff derived title to the land, the rent of which is in question in this case, from Armstead Oakley, by a conveyance which was not so executed by the wife of the grantor as to carry her dower. Although the testimony upon the point is by no means conclusive, we cannot say that there was not evidence conducing to show that Armstead Oakley had his residence, at the time of his death, in the dwelling-house, connected with which there was a plantation, embracing the land occupied by the defendant; consequently, we cannot regard the charges set out below as abstract. Those charges, when construed in reference to the evidence, substantially assert the proposition, that if Armstead Oakley, from whom the plaintiff derived title, usually resided, next before his death, on the plantation of which the land cultivated by the defendant was a part; and if Lucy Oakley, the widow of the deceased, was still alive, the plaintiff would not be entitled to recover, because the right to recover for the use and occupation of the land pertained to the widow, and not to the plaintiff.

These charges must be sustained, under the decisions of this court. In Inge v. Murphy, 14 Ala. 289, it was held, that the widow, whose husband had his dwelling-house on the land at the time of his death, could recover rent against the husband’s alienee, for the period between the husband’s death and the assignment of her dower. The opinion in Shelton v. Carroll, 16 Ala. 148, decides, that where the husband, at the time of his death, occupied premises previously aliened by him, the widow, who had not transferred nor received an assignment of her dower, could successfully resist an action of ejectment brought by the alienee against the tenant of herself and second husband, notwithstanding her first husband was the tenant of the alienee at the time of his death, and her second husband had paid rent to the alienee. In McLaughlin v. Godwin, 23 Ala. 846, this court decided, that the heirs were not entitled to recover rent received by an administrator, for the time prior to the assignment of dower, because the use and occupation of the land belonged to the widow, and not to the heirs. It is also said in Shelton v. Carroll, supra, that the alienee of a husband, whose wife did not assign dower, stood in the same position with the heir, as to his right to resort to a court of chancery to liave dower assigned. In a ease cited from. 3 Halstead, in Inge v. Murphy, supra, it was decided, that the widow “had a freehold for life in the mansion in which her husband resided next preceding his death, and the plantation thereunto belonging, unless her title be sooner defeated by the assignment of dower to her.” Guided by these authorities, we feel bound to decide that there is no error in the charges given by the court below.

The widow’s right to the occupation and use of the mansion-house, and of the plantation therewith connected, does not depend upon the fact of her actual possession, nor upon the fact of her having made a demand, or asserted affirmatively her claim. To hold otherwise, would do violence to the authorities quoted above. The case of Shelton v. Carroll, supra, cannot be reconciled with the position, that the widow’s quarantine, or right to the rents incident to it, depends, like her right to damages incident to dower, upon a demand made. She is entitled to the mansion-house at which her husband most usually resided before his death, and plantation connected therewith ; and until that right is terminated by the assignment of dower, it is as perfect and exclusive in its character, as any other title to land; and another person could no more recover rents accruing during the pendency of her right, than he could recover rents accruing during the pendency of any other title. These views are decisive in favor of the propriety of the refusals to charge by the court below as asked by the plaintiff.

The judgment of the court below is affirmed.