Reeves v. Brooks , 80 Ala. 26 ( 1885 )

CLOPTON, J.

The bill is brought by appellant to have an assignment of dower in land, of which her husband was seized, and which was his homestead at the.time of his death, and to have an account of rents and profits.

Dower, arising by operation of law from the marital relation, is an inchoate and contingent right pending the coverture, which is consummated on the death of the husband, the wife-surviving, and entitles her to a free hold estate in the land. Until dower is assigned, the widow has no .legal estate or interest in the land. Until a specific part of the land is allotted and set apart for her dower estate, her interest is equitable, and its nature a right lying in action. The assignability of such interest depends on the form, in which the question may arise —whether at law or in equity. Having no legal estate, the right of dower, before assignment, is not the subject of conveyance to a stranger, of which a court at law can take cognizance. Such conveyance does not entitle him to an allotment of dower in his own name, nor is it a foundation fpr any claim in an action at law. The heir may successfully maintain ejectment against the grantee for the recovery of possession. — Barber v. Williams, 74 Ala. 332; Turnipseed v. Fitzpatrick, 75 Ala. 297; Saltmarsh v. Smith, 32 Ala. 404; Wallace v. Hall, 19 Ala. 367.

In equity the rule is different. By t'lie common law, a right or chose in action is not assignable. An assignment conveyed no interest or right to the assignee, which a court of law would recognize to any extent or for any purpose. Equity, however, recognizes an interest in the assignee entitled to protection, and treats him as succeeding to the rights of the assignor, and as possessing ownership of the thing transferred. The assignment of a thing in action for a valuable consideration creates a substantive right of property, which a court of equity will, under proper circumstances, uphold and enforce. The widow’s right of dower, before assignment, being a right of action and being equitable, comes within the operation of these principles ; and though a conveyance of such right is inoperative at law, a court of equity will, in a proper case, enforce her transfer, and protect the rights of her transferree. — Strong v. Clem, 12 Ind. 37; Payne v. Becker, 87 N. Y. 153; 2 Scribner Dow. (2 Ed.) 45. -We do not understand Saltmarsh v. Smith, supra, as in conflict with these views, when the facts of the case are considered. In that case, the land was not sold by the husband, nor was the consideration price paid to him ; but was sold after his death by a purported agent, when his power of attorney liad been terminated. The transfer of the right of dower was made, as expressed therein, on a valuable consideration paid to the husband, which was not true. The.deed of the agent was ante-dated, so as to purport to have been executed in tíie lifetime of the husband ; and no valuable consideration was paid to the widow for her transfer. On these facts, the court held, that the grantee had no title to the real estate, legal or equitable, either under the deed or otherwise, and that the widow’s transfer was wholly inoperative ; and refused to enforce it, by way of deduction of the reasonable value of the dower interest from the grantee’s claim of indebtedness against the husband, as against his other creditors, who had filed the bill to subject the land ; the estate of the husband having been declared insolvent.

On January 21, 1885, the complainant and her two sons, to whom the other heirs had previously sold and conveyed their interest, executed to the defendants a conveyance of land, containing covenants of warranty, in consideration of one thousand dollars. It is unnecessary to decide, whether a conveyance of the entire land to another, in making which the widow unites with the heirs, in whom the fee is vested, and who, with her, are in possession, operates as a release to the terre-tenant, or by way of extinguishment of her right of dower. The deed purports to convey all the right, estate and interest of the grantors, and recites that the consideration was paid to all of them, as to which there is no contradictory evidence. The suit is in equity, instituted by the widow, who claims dower notwithstanding the deed. Fraud, imposition, or undue advantage is not alleged or proved. If as to the complainant, the conveyance be regarded as only a transfer of her right of dower, being supported by a valuable and sufficient consideration, a court of equity will protect the rights of her assignees. If, in such case, there was an assignment of dower, it would enure in equity to the benefit of the alienee ; and inasmuch as the defendants have a conveyance of the land, by which the equitable interest of the complainant is merged in the estate conveyed by the heirs, an allotment would be useless and unnecessary. Moreover, the complainant, by uniting in the covenants of warranty, has estopped herself from denying that she had an indefeasible estate which passed by the deed, and will not be heard to gainsay the title of the defendants, by asserting a claim of either do'wer, or homestead exemptions. — Jones v. Reese, 65 Ala. 134; Mattock v. Lee, 9 Ind. 298; Grant v. Parham 15 Vt. 649.

Under our statutes the widow may retain, free from the payment of rent, the possession of the dwelling-house, where her husband most usually resided next before his death, and the plantation connected therewith, until her dower is assigned. Code, § 2238. The object of the statute is to provide for her a support until dower is allotted, on which she may enter. For this purpose she may rent the premises, and if the administrator, or heir, or any other person, receives the rents, she is entitled to recover them. Inge v. Murphy, 14 Ala., 289; Boynton v. Sawyer, 35 Ala., 497; Oakley v. Oakley, 30 Ala., 131. She may transfer or otherwise utilize the rents and profits as she deems most expedient. They are subject to her absolute disposal. The complainant and her sons continued to occupy the premises after the death of her husband, and the sons managed and cultivated the lands. She and one of her sons in January, 1882, and she and both of her sons in February, 1884, mortgaged the lands and the crops raised thereon to the defendants to secure the payment of the joint indebtedness recited in the respective mortgages as having been contracted to obtain advances to enable them to make the crops. The cotton received by the defendants was delivered in part payment of the mortgage debts. The defendants received the cotton, with the consent of complainant, by her authority, and in performance of contracts made with her. Under such circumstances the complainant will not be heard to say, that the defendants received the cotton wrongfully, and will not be suffered to call on them to account to her for the cotton or its proceeds. She has had the use and occupation of the premises, and has enjoyed the income and profits, the same having been appropriated to an indebtedness, for which she was jointly liable with others, and which was contracted for their joint benefit. Unmasked and stripped of the adventitious circumstances, the case is that of a debtor, who, his own funds having been applied in payment of a joint debt, calls on the creditor to refund on the ground that the funds used were her undivided property, and that others were liable for the debt.

Affirmed,