Martin v. Martin , 35 Ala. 560 ( 1860 )

A. J. WALKER, C. J.

We have recently considered the question, whether it is indispensable .to the maintenance of a bill for the rescission of a contract .on the ground of fraud, that there should have been an antecedent restoration, or offer of restoration, of what the complainant had received under the contract; and we regard that question as settled in the negative. — Garner, Neville & Co. v. Leverett, 32 Ala. 410; Bailey v. Jordan, ib. 50. See, also, Abbott v. Allen, 2 Johns. Ch. R. 519; Parham v. Randolph, 4 Howard’s (Miss,) R. 435; Edwards v. McLeay, Cooper's Ch. Cas. 308; S. C., 2 Swanst. 302.

[2.] It is a principle established by our decisions, that the Avidow’s dissent from her husband’s Avill is not.necessary to entitle her to dower in her husband’s estate, when no provision Avhatover is made for her in the will. — Green v. Green, 7 Porter, 19; Martin v. Martin, 22 Ala. 86; Turner v. Cole, 24 Ala. 364; Clay’s Digest, 172, § 3; Code, § 1609.

[3.] The bill in this case was filed on the 14th September, 1851, and there was, therefore, a period of more than three years after the Code went into operation, before the suit was commenced. Section 1372 of the Code provides, that “all suits or proceedings for dower must be commenced within three years after the death of the husband, and not after.” If this statute of limitations operates upon rights of doAver existing at the time when it went into force, then the suit of the complainant as to the claim of-dower is barred. InRidgwav v. McAlpine, (31 Ala. 458,) the remark was made, that 'the statute above quoted “applies only where the husband died after the Code went into effect;” but, as that suit was commenced in November, 1854, before the time prescribed in the statute had-elapsed after it became the law, the remark was altogether unnecessary, and had reference to a point which did not arise in the case ; and we do not feel bound to follow it as a precedent, if -we deem it wrong upon principle. We are bound by -the -adjudications in this State, -and the Weight of authority elsewhere, -to recognize the doctrine, that statutes of limitation, when they allow a reasonable time for the commencement of suit, operate upon -causes of action subsisting at their adoption, unless they contain some opposing provision.— Rawls v. Kennedy, 23 Ala. 240; Harvey v. Thorpe, 14 Ala. 103; Cox v. Davis, 17 Ala. 714; Owen v. Slatter, 26 Ala. 547; Angell on Limitations, 22-23; Weber v. Manning, 4 Missouri, 229; Rhinehart v. Schuyler, 2 Gilm. (Ill.) 473 ; Bank of Ala. v. Dutton, 9 How. 522; Central Bank v. Solomon, 20 Ga. 408; Pierce v. Toley, 5 Met. 168-171; Walker v. Bank of Miss., 2 Eng. 500 ; People v. Supervisors, 10 Wend. 363 ; Sayre v. Wisner, 8 Wend. 661; Sleeth v. Murphy, 1 Morris, (Iowa,) 321. If this 'were not the doctrine of the law, there -would be :an absurd discrimination in favor of the superior antiquity of subsisting causes of action.

The act approved February 15th, 1854, (Pamphlet Acts, ’53-54, page 71,) presents no obstacle to the operation of section 1372 of the Code upon causes of action existing when the Code went into force. That act'restricts the application of the provisions, of chapter 21, title 1, part 3d of the Code, to causes of action commencing on or after the day when the Code went into operation. But that restriction does not reach section 1372, which is not found in the designated chapter. The act of 1854 further provides, that causes of action accruing, and possessions commencing, prior to the time when the Code went into operation,' shall be controlled by thepre-existing statutes of limitations, which -were “ re-enacted, revived, and continued in full force, for that purpose only.” This provision does not, in our judgment, exempt those causes of action which existed when the Code became the law, from the influence of the statute of limitations contained in the Code, outside of the chapter above specified. The effect of the provision is, to leave the pre-existing statutes of limitations, not embraced in the specified chapter, unrepealed by the Code, so far as they affect the causes of action which existed when the Code went into operation. The result is, that the subsisting causes of action fall within the principle settled in the case of Bawls v. Kennedy, supra; and therefore a cause of action not within the operation of the chapter of the Code above specified, if it existed when the Code went into force, would come within the purview of both the statute of limitations in the Code and the old law. Accordingly, we decided in Lewis v. Lindsay, (33 Ala. 304,) that an appeal from a decree of the probate court, rendered before the Code, was barred under the old law; and we decided in Banks v. McDougald, (29 Ala. 75,) that a similar decree of like date was barred by the Code.

We feel constrained to decide, in contravention of the remark made in Ridgway v. McAlpine, that the complainant’s right of dower fell under the operation of the statute of limitations of three years, on the 17th January, 1853, when the Code became the law, and was barred in three years from that time. On the 8th February, 1858, an act was approved which amends section 1372 of the Code, so as to make it applicable only where the land out of which dower is claimed was aliened by the husband; but that act cannot affect the question here, for the bar against the complainant was complete before the adoption of the act; and it is an established principle, that the repeal of a statute of limitations does not impair a bar perfected before the repeal. — See the authorities collected in note 3, section 22, of Angell on Limitations ; United States v. Burford, 3 Peters, 30.

[5.] The bill in this case does not show that the complainant, with a full knowledge of the fraud perpetrated upon her, elected “ to treat the contract as a valid and subsisting one;” and she is not precluded by acquiescence from the maintenance of her bill. — Kern v. Burnham, 28 Ala. 428.

[6.] The allegation of fraud in the bill is sufficient. The averment is, that the complainant was homeless, friendless and destitute; without education, incapable of reading or writing, and, from age and weakness of mind and body, unfit for the transaction oí business, and the defendant was fully apprised of those facts ; that she was falsely told, that her agent and lawyers would deceive her, and would take to her exclusion her entire interest in the estate; that she was importuned to make the contract; that $3,500 was represented as the full value of her interest in her husband’s estate; that “divers other false and fraudulent representations,” in refei’ence to the estate and its value, were made, in order to induce her to make the contract; that she was denied an opportunity which was asked to see her lawyers and agent, in order to satisfy herself as to the facts; that she was pressed into the immediate execution of a previously prepared contract ; that she believed at the time that it only released her dower, and that the sum paid to her was greatly inadequate to the value of her interests. These allegations are sufficient to show fraud; and with some hesitation we decide, that the allegation of great inadequacy is a sufficient averment of injury.

[7.] We understand the complainant’s amended bill to otfer to credit the defendant with the amount paid her, or “ to perform and abide by the order of the court in the premises.” We understand this to amount to an offer to perform such order as the court may make touching the restoration of the money received; and this is a satisfaction of the rule, which requires that the complainant should offer to do equity. — Miller v. Bates, at the present term ; Branch Bank v. Strother, 15 Ala. 57 ; Tucker v. Holly, 20 Ala. 426. .

The chancellor erred in deciding against the equity of the bill, and his decree must be reversed, and the cause remanded.

Stone, J., not sitting.