Owen v. Slatter

26 Ala. 547

• Court: Supreme Court of Alabama
• Decided: January 15, 1855
• Status: Published

Opinion

CHILTON, 0. J.

—1. The sale of the real estate, made under decree of the Probate Court, vests in the purchasers only the title which the ancestor had, and which upon his death descended upon his heirs-at-law. The widow’s right to dower is unaffected by the sale, unless, indeed', she bars her right by some act which', in a court of equity, would constitute it a fraud in her to insist upon it.

The facts of the case before us do not make out such a bar. True, the widow, in this case is administratrix; but the law prescribes her duties, and so long as she acts within the scope of those duties, it would be singular indeed that she should forfeit her rights as an individual, merely by reason of her having properly complied with the requirements of the law in her fiduciary character.

Such sales, when made by' commissioners, are judicial in their character; and, like sales under execution, leave the widow’s right to dower unaffected. The purchaser is supposed to examine the record, and to know what he is buying, and to purchase with a knowledge that the dower is yet an incumbrance upon the land. The maxim, “ caveat emptor” applies ; and if the purchaser blindly bids off the land without inquiring whether the widow has relinquished her dower, or consented to a sale of it, electing to take a share of the proceeds in lieu thereof, it is his folly, and he has no one to blame but himself.—Perkins’ Ex’rs v. Winter’s Heirs, 7 Ala. 855; Worthington v. McRoberts, 9 ib. 297. As to title sold, see Olay’s Dig., p. 195-6, § 18,

We are of opinion, therefore, that there was no fraud on the part of Mrs. Owen, in failing to announce at the sale that the land was sold subject to her dower ; neither is she estop-ped from setting up her claim to dower by reason of her silence. Whether, if she had sold the land in her fiduciary character, and executed a conveyance, her dower interest would not have passed thereby, is a question which may admit of discussion, and one which it is not our purpose now to decide, as the record before us does not involve it. The case of Shurtz v. Thomas, 8 Penn. State R. 359, goes greatly beyond this. There the conveyance, made under order of court, was by the widow — the administratrix — and purported to convey the estate of her husband and of her, the administra-trix, since his decease : — Held, that the conveyance was to be referred to her office, and left her dower unaffected.

2. It is insisted for the defendant, that the statute contemplates the claim for dower shall be made in one application for all the lands which lie in the county, and that the widow cannot make a separate application for each tract. It may be, when the application is made under the statute to the Probate Court, that she would be confined to a single application ; but the statute was not intended to deprive the Chancery Court of its jurisdiction, as it is not taken away in terms. The rule is, that although the statute may confer jurisdiction upon another court, over subjects-matter of which the Chancery Court had jurisdiction, the jurisdiction of the latter court remains unimpaired, unless by the language of the statute they are forbidden to proceed in such cases. We entertain no doubt of the right of the complainant to proceed in equity, in the case before us ; the premises out of which dower is claimed being a city lot, on which there are improvements, and in which equitable dower (instead of one-third of the lands by metes and bounds) must usually be assigned.

3. It appears that the statute of limitations was passed on the 7th day of February, 1848, and this bill was filed on the 7th February, 1853. In our opinion, the ten years was not completed when the bill was filed. Whatever may be the English doctrine upon this subject, it is the practice of our court to include one day and exclude the other, except when .the statute requires so many entire days to intervene, — in which case, both are excluded.—See Garner & Neville v. Johnson, 22 Ala. 494-501. Such also appears to be the rule in New York.—Fairbanks v. Wood, 17 Wend. 329-331; Snyder v. Warren, 2 Cow. 518-521; Ex parte Dean, ib. 605-6, note a; see, also, Angell on Lim. 45 to 50, where the authorities are cited.

The decree of the chancellor is erroneous. Let it be reversed, and the cause remanded.