Irvine v. Armistead

46 Ala. 363

• Court: Supreme Court of Alabama
• Decided: June 15, 1871
• Status: Published

Opinion

PETEBS, J.

It is insisted by the appellant that the judgment of the circuit court in favor of Brickell against said George G. Armistead operated as a lien on the lands mentioned in the complainant’s bill; and that this lien, having accrued before the marriage, defeated the right to dower upon the sale under said execution issued on said judgment to satisfy the same. This defense sets up two assumptions: First, that said judgment was a lien on said lands ; second, that the right of dower attached, subject to be defeated by this lien on a sale of said lands to satisfy said judgment. At least, I so understand the argument of the learned counsel for the appellant, Irvine. The first assumption is the first to be considered. If that proves untenable, then the second must fail also ; because the second stands upon the first. '

Dower is greatly favored by the law. It is classed with those rights we are accustomed to denominate as sacred. It is ranked with the right to life and to liberty. — 4 Bacon, 345; 1 Story’s Eq. § 629. This may well. be so in a free country; because it is for the comfort, the support and the protection of the mothers and the children of the State. In truth, the law upon the subject of dower is a pledge by the commonwealth to them that, upon the father’s death they shall not be expelled from the home which he had provided for them.

When the judgment here relied on was rendered, there was no law of this State, which this court can enforce, that made such a judgment a lien on the lands of the defendants therein. The execution in the hands of the sheriff was made by law a lien on the lands and other property of the defendants subject to levy and sale, but this lien did not belong to the judgment. And this lien was only continued as long as the writ of execution was regularly issued and delivered to the sheriff without the lapse of an entire term. — Code of Ala. § 2456; Rev. Code, § 2872 ; Daily v. Burke, 28 Ala. 328; Curry v. Landers, 35 Ala. 280. The enactment of the insurgent government in this State, of December 10, 1861, was of no force, so far as this case is concerned. It did not change the law as it existed before its date. — Texas v. White, 7 Wall. 700 ; Martin v. Hewitt, June term, 1870 ; Ray v. Thompson, 43 Ala. 434 ; S. C. on second application for re-hearing, June term, 1870. This act out of the. way, there was no subsisting liep on the lands in controversy at the date of said marriage. The execution had not been regularly issued and continued from term to term. This was necessary to keep the lien in force.— Code, § 2456 ; King v. Kenon, 38 Ala. 63; see, also, Kirksey v. Hardaway, 41 Ala. 338 ; Sanford, v. Ogden, Furguson & Co., 34 Ala. 118 ; Troy v. Smith & Shields, 33 Ala. 469. The enactments of December 8, 1863, February 20, 1866, and February 19,1867, have all been passed since the marriage of Mrs. Armistead with her said husband, now deceased, and they can not be allowed to affect her rights, unless it can be clearly shown that it was the legislative purpose to have done so. Her right to dower had then attached to all the lands of her husband which fell within the description of those mentioned in the statute. These acts were not intended to displace or impair this right; and on the death of the husband it became complete. — 4 Kent, 50 ; Rev. Code, § 1624. Then, without intending to repeat the discussion on the validity of the judgment now interposed as a bar to the right of dower in this case, as a judgment of a court of the insurgent government in this State, during the supremacy of the late rebellion, it may be allowed that, if it were valid, it possessed no lien at the date of the marriage in this case. — 33 Ala. 469, supra. The husband’s seizin, then, at the marriage, was in fee and unembarrassed by any lien. ■ When this is the case the right of dower accrues, and it continues until it is relinquished by the wife, in the manner prescribed by the Code. And as this is the only mode of barring the wife prescribed by the statute, it may be very seriously doubted whether any other was intended to be allowed, if the marital relation continued up to the death of the husband. — Revised Code, §§ 1624, 1626 and 1629.

But did the legislature intend, in granting the right of dower to the widow in the husband’s lands, to make ib, under any circumstances, subservient to the lien of a judgment at law against the husband, whether before or after marriage ? Certainly, from what has been said in the foregoing discussion, the right to dower-is superior to all liens in which the wife does not join, which accrue after marriage. Owen v. Slatter et al., 26 Ala. 547 ; Nance v. Hooper, 11 Ala. 552. Neither the lien of a judgmént nor the right to dower depend upon contract or grow out of contract, as that word is used in a commercial sense. They are the creatures of the statute, and may both subsist at the same time. When this is the case, was .it the purpose of the legislature that the right of dower should be displaced by the lien of the judgment ? As the will of the legislature is the basis of both rights, it could, within the strict limit of its powers, declare that the right of dower should always displace the lien of the judgment. This is the reasoning of this court in the analogous case of exemptions in favor of the family.— Watson et al. v. Simpson, 5 Ala, 233. The Code defines dower in this language : “ Dower is an estate for life of the widow in a certain portion of the following real estate of her husband, to which she has not relinquished her right during the marriage: 1. Of all lands of which the husband was seized in fee during the marriage. 2. Of all lands of which another was seized for his use. 3. Of all lands to which at the time of his death he had a perfect equity, having paid all the purchase-money therefor.” — Rev. Code, § 1624. This is the pledge of the commonwealth to the woman who marries. It- is a statutory privilege. It is expressed in language perfectly plain, absolute and unlimited. Were it a stipulation in a deed, there could be no rational contest about its meaning and intent. If there is a marriage, seizin during the coverture, and death of the husband, then the right to, dower is absolute, unless the widow has relinquished it. This is the sole condition that may defeat it.

The same law, it is true, makes the husband’s lands subject, by judgment and execution, to the payment of his debts- But it does not say that this privilege shall override and displace the superior privilege of dower on behalf of the widow. To say that the lien is to be preferred because it is prior in time, is to qualify and limit the stipulation giving dower. This can not -well be done, where it is legitimate to make the construction most favorable to the right of dower. As soon as the facts exist that give birth to the right of dower, then the enjoyment of the fruits of the lien is postponed till possession under the dower is exhausted. The execution purchaser, by the sale, steps into the shoes of the debtor, it is true; but he takes the estate subject to the dower, as the husband held it from the moment of the marriage. When the dower right is exhausted, the execution purchaser takes all. These are questions not to be settled by the common law. They spring out of our statutes, and are to be solved according to their language and intent. And it seems to me most conformable to the spirit of our law to apply to the construction of the statute defining and regulating dower, the same liberality that has been granted to the like statute of exemptions. 5 Ala. 233, supra. In doing so, it simply places the right to dower, which attaches after the judgment against the husband, on the same footing that it holds when it attaches before the judgment, (11 Ala. 552, supra,) and upon the footing of exemptions in favor of the family. — 5 Ala. 233, supra. But it is not really necessary to settle this question in this case. It is determined without it.

The judgment in favor of Brickell against George G. Armistead, upon which the appellant relies to defeat the complainant’s claim of dower in this case, can not now receive in this court such force as would give it that effect. It was wholly devoid of any right of lien. It could not, then, stand in the way of the right of dower claimed by Mrs. Armistead. It will hardly now be seriously pretended that there was no change wrought in the government of this State by the passage of the ordinance of secession, and that the government was the same after the eleventh day of January, 1861, that it was before that day. Nor will it be contended that the government existing up to the passage of this ordinance was overthrown, and a “ new government was erected in its stead” by piece-meal. 6 Wall. 13. If this did not so take place, then the judicial department of the legal government of the State passed away with the executive and legislative departments of the same. What was found here afterwards exercising jurisdiction in any of these departments of government, belonged to the new organization under the insurgent power. This insurrectionary organization was established in hostility to the constitution of the United States, and for this reason the whole structure was illegal and void. — Texas v. White, 7 Wall. 700, 732, 733. Let it be admitted that the merits of the case of Texas v. White, above cited, turned upon a judgment of a rebel.court in that State, instead of a law of the unlawful government, would the judgment have escaped the fate of the law ? It seems to me that it could not, if the reason given for the invalidity of the law was correct. And in this the whole court concurred. Then, if the law was void, as it was pronounced, the judgment must have been void also. A void judgment is nothing. It is not a mere irregularity, which the legislature might amend. To make such a judgment good, would be to make a new judgment. This the legislative authority can not do, nor any other authority in the State acting under constitutional limitations. The legislative power may make such proceedings the basis for a new trial, or a ground for review and correction of error, or it may refuse the parties relief who have acted under them. — Ordn. No. 39, 40 ; Pamph. Acts 1868, pp. 186, 187, 269. It seems to me, that to go beyond this, under our system, would be an unjustifiable usurpation. ’That the learned and able counsel for the appellant have wholly failed to furnish any domestic authority supporting the validity of the judgment, without ratification or cure of some kind by the legal government, is the amplest and most satisfactory evidence that none such exists. That such judgments should be cured in some way, is the opinion and practice of jurists of the highest standing. — Ordn. No. 26, Rev. Code, pp. 58, 59 ; 3 Ala.

The facts, then, show that the complainant in the court below was entitled to dower in the lands set forth and described in her bill. In such case, the court of chancery has original and concurrent jurisdiction with courts of law to ascertain and adjust her rights. — 4 Kent, 71, and cases there cited ; 1 Story Eq. § 624, et seq.; Rev. Code, § 1631; Brooks v. Woods, 40 Ala. 538 ; Waters v. Williams, 38 Ala. 680 ; Owen v. Slatter, 26 Ala. 547.

The widow’s title to the dower lands is a legal title, and it springs up into perfection immediately on the death of her husband. If it can be defined by metes and bounds, it is as perfect as though it were created by deed dated on the day of the husband’s death. And if the allotment by metes and bounds can be made, she is entitled to the immediate possession as fully as she would be under a deed. The rights being the same, whether by dower or by deed, like consequences should follow both. Eadem ratio, idem lex. — Broom’s Max. p. 64, marg. Reasonable satisfaction may be recovered for the use and occupation of land in this State. — Rev. Code, § 2707; see, also, Slatter v. Meek, 539, 528, And in such case, where there is no special rule in equity, the rule at law will be followed. Equitas sequitur legum. — 1 Story Eq. § 64, et seq. The possession of the complainant having been obstructed by the ^appellant, Irvine, she was entitled to some damages. — Sedg. on Dam. 133, et seq. There was no error, then, in the reference to the master to make inquiry of this damage, and report the same to the court. As this report was made, and not objected to before its confirmation in the court below, it is too late to raise the objection here for the first time. Gerald v. Miller’s Distributees, 21 Ala. 433 ; Lang v. Brown, 21 Ala. 179 ; Rev. Code, §§ 3387, 3389. Unless the decree of reference upon its face showed error, there can be no doubt of the propriety of the reference. — Springle’s Heirs v. Shields & Paulding, 17 Ala. 295. In Beavers & Jamison v. Smith, (l1 Ala. 20, 32,) it is said that “damages are properly the mean profits arising after the death of the husband and before the suit for dower. * * * But whatever may be the rule at law, in equity the established doctrine is to allow the widow the mean profits as damages, and this not by analogy to the allowance of damages under the statute of Merton, but on the grounds of title.” Ib. p. 32. This intimation also comports with' the language of our statute, which gives the owner of lands in this State “ reasonable satisfaction for its use and occupation.” — Rev. Code, § 2607. The alienee who obstructs the widow’s right to her dower lands, under our statute, can not claim to stand on a better footing than the heir. Her title is the same against both of these, and either, as he may have the seizin and occupancy of the dower lands, may put her in possession immediately upon the death of the husband, if he chooses. — Johnson, adm’r, v. Neil and Wife; 4 Ala. 166. In this case, the appellant’s possession from the death of the husbond was continuous up to the filing of the bill, and afterwards until the allotment of the dower. He had enjoyed the use and occupation for the whole of this period. The same law which gives compensation after the filing of the bill for the use and occupation, also gives it before the bill is filed. The alienee could only be charged with damages for the use and occupation of the widow’s dower during the period of his tenancy, This is what the chancellor decreed, and it is what the master ascertained and reported. The judgment is therefore right, and it will not be disturbed.

The decree of the court below is affirmed ; and the appellants will pay the costs in this court and the court below. — Rev. Code, §§ 2779, 3471.