Lipscomb v. DeLemos , 68 Ala. 592 ( 1881 )

SOMERVILLE, J.

This is a petition for dower by the appellant, the right being claimed in certain lands purchased by her husband from one Brooks in the year 1859. It is claimed that the husband, during his lifetime, owned a perfect equity in these lands, and that, although no conveyance was made to him of the legal title, the wife is entitled to dower.

The proposition is conceded by appellee’s counsel, that if the husband, at the time of his death, had a perfect equity in the lands, having during his life time paid all the purchase-money, the widow is entitled to dower under the provisions of section 2232 of the present Code. And the converse of the proposition is equally true, -that she is not so entitled, if any portion of the purchase-money was paid after the death of the husband.—Boyd v. Harrison, 36 Ala. 533; 1 Brick. Dig. p. 614, §§ 25, 26.

The chief point of contention here is, whether the purchase-money was paid before or after the husband’s death.

The evidence shows the possession by the appellant of the last note given for the' purcbase-money. This possession, though unexplained, is free from any circumstances calculated to excite suspicion. Fewer principles are better settled than that a presumption of payment arises from the existence of this fact.—2 Whart. Ev. § 1362. We take it then as presumptively true, that the note was paid at some time or another, because the possession of it is shown to be in the appellant.

There are some cogent circumstances for legitimate inference afforded by the record in this case. These are the insolvency. of Brooks, the payee of the note, at the time of his death; the long period of time since the note fell due and, the last payment was made, showing the debt, though not the lien on the land, to have been barred at the time of the payee’s death; and finally, the fact, which is perhaps the most persuasive of all, that Brooks died about two years before Lipscomb, and no letters of administration have ever been granted on his estate. Payment being presumed, the inference necessarily is that it was made to. one lawfully authorized to receive the money, and hence to Brooks before his death.—2 Whart. Ev. §§ 1363-64. Our conclusion is, that the note was paid before the husband’s death, that he, therefore, had a perfect equity in the lands during his life, and that these facts entitled the widow to dower.—Code, 1876, § 2232.

The decree of the chancellor is. reversed, and the causa remanded.