Mattox v. Feagan

57 Ala. 274

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

BRICKELL, C. J.

Under the facts disclosed in the record, the appellant was not entitled to dower in the lands, the possession of which she sues to recover. The statute limits dower to lands, of which the husband was seized in fee during coverture, or of which another was seized in fee to his use, or in which he had a perfect equity, having paid all the purchase money. — R. C. 1624. At the time of his death, a large part of the purchase money the husband contracted to pay for the lands, remained unpaid, and a conveyance had not been made to him. It is the settled law of this State, that the widow is not dowable of lands, the purchase-money of which is unpaid at the death of the husband, andi of which the conveyance of the legal estate had not been made.—Harrison v. Boyd, 36 Ala. 203; Crabb v. Pratt, 15 Ala. 843.

2. Nor can the action be supported for tbe recovery of the exemption of lands, allowed to a widow by the statute. B. C. § 2061. The statute when of force did not exempt (.absolutely any particular parcel, or quantity of land. It - did not vest in the widow or minor children the right or ■title to lands. The right it created resembled tbe right of ■ dower — it was not an estate in lands, rather a mere right -of action. By proper judicial proceedings, had before a sale of the lands by the personal representative, title to a quantity of land not exceeding in value five hundred dollars, oould have been acquired, if the allotment thereof was not ■ of injury to tbe remaining portion of the estate. We bave ■decided that until the allotment in the mode prescribed by the statute, title did not vest in the widow, or the children. McCuan v. Tanner, Rottenbury v. Pipes, manuscript. No allotment having been made, the appellant had no right or •title which would support this action.

The judgment of the Circnit Court must consequently be . affirmed.