Martin v. Wharton , 38 Ala. 637 ( 1863 )

STONE, J.

[1.] The second plea in this cause complains only of a misrepresentation of a matter of law, — a question alike open to both parties; and the demurrer to it was rightly sustained. — Townsend v. Cowles, 31 Ala. 428-35.

[2-3.] -The first plea claims a set-off by reason of an alleged incumbrance on the vendor’s title ; the incumbrance being an inchoate right of dower in the premises, existing and unrelinquished in the vendor’s wife. The averment of the plea is, that the vendor, as part consideration of the note sued on, agreed to procure the relinquishment of his wife’s dower, or, failing in that, to give the purchaser bond, with surety, to indemnify him against all damage and loss on account of her said right to dower in said land. It is objected to this plea, that the promise to obtain a relinquishment of the vendor’s wife’s right to dower, is void under the statute of frauds. It is not necessary that a promise, such as this, shall, in the declaration or plea, be averred to be in writing; that question arises on the proof. — Browne on the Statute of Frauds, ^ 505 ; 1 Chit. PI. 480 ; Rigby v. Norwood, 34 Ala. 129. But, as this same question arose on an offer of testimony, it is proper for us to say, that the vendor’s promise to procure a relinquishment of his wife’s right to dower in the lands was void under the statute of frauds, unless in writing, &c., as required by section 1551 of the Code. — See Browne on Stat. Frauds, §§ 232, et seq.; Chiles v. Woodson, 2 Bibb, (Ky.) 71; Campbell v. Taul, 3 Yerg. 548, 557.

[4.] A second objection to this plea is, that a set-off growing out of a defect in the vendor’s title, the purchaser being in possession, can not be maintained against a suit for the purchase-money. Such was the law before the Code. — See authorities collected in Kelly v. Allen, 34 Ala. 668. The Code, however, changed the rule, and allows this defense to be made to a suit on the note. — Holly v. Younge, 27 Ala. 203 ; Gibson v. Marquis, 29 Ala. 672-3.

[5.] The promise, then, for a breach of which damages are claimed, was to procure a relinquishment of the right of dower existing in the vendor’s wife, or to give the purchaser indemnity against that incumbrance, in form of a bond with surety. Each of these alternative promises looks to appellant’s security against the inchoate, contingent right of dower, which Mrs. Wharton may have in the lands. The value of this inchoate interest is the measure of the incumbrance, and, as a corollary, must define the measure of the defendant’s damages for a breach of the promise. What is the value of her dower interest ? Can it be ascertained ? It must, in the nature of things, depend, first, on the contingency whether Mrs. Wharton survive her husband. If she does not, her dower right can never mature, and can never disturb appellant in his possession. In cases of dower rights, perfected by the death of the husband, leaving a wife surviving, we have uniformly held, that no absolute money valuation can be fixed upon them, by reason of the uncertain duration of the life of the dowress. — See the forcible remarks of Justice Ormond on this subject, in the leading ease of Beavers v. Smith, 11 Ala. 33. To the same effect, see, also, Johnson v. Elliott, 12 Ala. 114; Potier v. Barclay, 15 Ala. 448; Fry v. Merchants’ Ins. Co., ib. 815; Parks v. Brooks, 16 Ala. 329; Springle v. Shields, 17 Ala. 298; McLemore v. Mabson, 20 Ala. 139; Thrasher v. Pinckard, 23 Ala. 620; 7 Cranch, 580.

In the case of Holley v. Younge, (27 Ala. 206,) this court allowed the defense of set-off to be made, although the foundation of the set-off sounded in damages. The language of the court, in that case, is, “A demand, not soundings in damages merely, is one which, when the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard.”

In this case, after all the existent facts are established, the damages cannot be correctly measured by any pecuniary standard. No human skill can foretell, or conjecture, the probable duration of either Mr. or Mrs. Wharton’s life. This, certainly in the absence of organic disease, would be a subject on which the most skillful expert would not be allowed to give his opinion in evidence. There being no standard by which to measure the appellant’s damages resulting from the alleged breach of the vendor’s promise, we hold, that the first plea was defective, and the demurrer to it rightly sustained. Whether the appellant is entitled to any other relief, we do not decide.

Affirmed.