Waters v. Williams , 38 Ala. 680 ( 1863 )

STONE, J.

Under the special verdict, or agreed facts in this case, the plantation, for the use and occupation of which the action was brought, was not “connected” with “the dwelling-house where her husband most usually resided next before his death.” — McAllister v. McAllister, 37 Ala. 484; Smith v. Smith, 13 Ala. 334. Hence, we hold, that this case does not come under the operation of section 1359 of the Code.

[2.] The principle above announced is decisive of this «ase, as made by the pleadings; but, as these may be modified, we feel it our duty to pass on. the plaintiff’s right to recover, in an action at law, for the rents, or mesne jsrofits, accruing from the lands assigned her as dower, from the death of her husband, to the time when her dower was allotted.

The widow’s right to have dower assigned to her, is not a legal right in the land, nor in any portion of it. — See Doe v. Webb, 18 Ala. 814, and authorities cited. The lands, in the present case, are not covered by the widow’s quarantine; and hence, on the mere strength of her right to be endowed, she could maintain no action to recover the possession, nor for the rents and profits of the lands. — Inge v. Murphy, 14 Ala. 289; Shelton v. Carroll, 16 Ala. 148; You v. Flinn, 34 Ala. 409; Hayden and Wife v. Tucker, in manuscript.

That chancery can furnish the plaintiff a remedy, and the only remedy to which she is entitled under the facts of this case, is clear on principle, and is fully sustained by authority. — Slatter v. Meek, 35 Ala. 538-9; Perrine v. Perrine, ib. 644; Barney v. Frowner, 9 Ala. 901; Beavers v. Smith, 11 Ala. 20; 1 Story’s Equity, § 626; Turner v. Morris, 27 Miss. 733; Curtis v. Curtis, 2 Bro. Ch. 619.

The judgment of the circuit court is reversed, and the cause remanded, that that court may make the proper order disposing of the case.