Steele v. Brown , 70 Ala. 235 ( 1881 )

STONE, J.

'These two cases are substantially identical in law and in fact, and we propose to decide them together.

To obtain dower, it was necessary for the complainant to allege and prove her marriage, legal or complete equitable seizin -of the husband during the coverture, and the death of the husband. The first and third of these propositions are proved. Is the proof of seizin sufficient? The averment of seizin, or title, being put in issue, it became necessary to prove it. After the answers of Mrs. Brown to the fifth and sixth interrogatories were suppressed, the proof - of this material averment was insufficient. True, in Scribner on Dower, vol. 2, 199, it is said: “It is well settled, that the demandant in dower is not required to make strict proof of her husband’s title, under the issue of non seisin.” But he explains what he means by making strict proof. He says: “ Where the defendant is in possession under a conveyance from the husband, or by virtue of a title derived through mesne conveyances from him, proof of this fact is sufficient to establish, as against the defendant, the seizin of the husband. So, also, proof that the husband of the demandant was in possession during the coverture, claiming title, or that he was in receipt of rents from the person in possession, is prima faeie suffi■cient evidence of seizin, to warrant a recovery against one whose possession commenced subsequently thereto; and unless impeached or explained, such possession is conclusive evidence of title.” Now, conceding that Mrs. Brown, the demandant, is not required “to make strict proof of her husband’s title,” the proof in the present record falls véry far short of each of the illustrations which this author gives. It is not shown that “ the defendant is in possession under a conveyance from the husband, or by virtue of a title derived through mesne conveyances from him.” There is no .attempt to trace a chain of title from the purchaser at sheriff’s sale, down to the defendant. Nor is there proof that Mr. Brown, husband of the demandant, “was in possession during the coverture, claiming title, or that he was in receipt of rents from the person in possession.” And, we may add, there is no proof that Ratlibone, whose title Brown purchased, had any title to the lands, or had ever been in possession, claiming title. Either of these lines of proof, supplementing the proof found in the record, would have made a prima fade case for the demandant. And, we may add, such proof would make optima facie case that the title had been in Mr. Brown as alleged, in any suit affecting the title to the property. In a suit by A against B, it is enough for A to prove that he and B trace title to the same source, and that A’s claim is paramount or superior to that of B. Not necessary in that case to prove title in the common source, under whom each litigant claims.—Pollard v. Cocke, 19 Ala. 188. So, prior possession, claiming title, or exercising acts of ownership, is good against any one not showing a paramount title, unless barred or estopped under some other principle of law.—1 Brick. Dig. 627, §§ 39, 40; Ib. 628, § 54; Anderson v. Melear, 56 Ala. 621. The proof of seizin in these cases falls' short of each of these requirements.

Dower being allotted by metes and bounds, there was also error in awarding the demandant rents or profits from the death of the husband. It should have been compxxted from the filing-of the bill. Nor was this a case for allotment by metes and bounds.—Beavers v. Smith, 11 Ala. 20; Slatter v. Meek, 35 Ala. 528. Dower being demandable, in these cases, of the value of the premises, irrespective of improvements placed there by the purchasers, they fall within the principles declared in Wood v. Morgan, 56 Ala. 497.

Reversed and remanded.