Randolph v. Doss

4 Miss. 205

• Court: Mississippi Supreme Court
• Decided: January 15, 1839
• Status: Published

Opinion

Mr. Justice Trotter

delivered the opinion of the'court.

There are some preliminary objections urged in this case which we will notice before proceeding to consider the principal errors assigned. The first of these is the want of jurisdiction in the court below to adjudicate this cause. To this it may be answered, that the constitution as well as the laws of this state, confer, by express - enactment, general powers in' cases of dower upon the probate courts of this state. These ■ powers are not restricted by the relation of the parties to the suit, and it is totally immatérial whether the contest for dower be between the widow and heir, or the widow and strangers. The jurisdiction of the court is founded on the claim of the widow, and it is immaterial whether her right be contested by a stranger, or the heir; she will be decreed dower against all the world if found. entitled. It is also objected, that there was no proof that Sylvia C. Doss was the widow of Hartwell Vick. The whole of the proceedings, however, are based upon that fact. It was one of the first steps in the proof of the demandant’s title, and the controversy proceeded on the assumed proof of the fact. Randolph appeared and contested her right as widow on the merits, and it is not to be endured that he shall, on appeal, turn her round upon such objection taken here for the first time. It was a fact, no doubt notorious in the county where this trial was had, and if the formal proof had been then demanded, it could very readily have been made. He shall not be permitted to surprise them now with it, when there is no opportunity to make the proof. It is also assigned for error, that the court permitted Henry Morse to testify. His interest, if he had any, was against the claim of demandants. But be this as it may, the same facts proved by him are also established by the evidence of Wm. Everett, who was unassailable. The exception which was taken to the refusal of the court to hear the answer of Lane to the question, whether he had sold the lots claimed by Randolph, is not sustainable. The deed ought to have been produced or accounted for; but the deeds made by him as they appear upon the record were executed in 1829, about five years after the transfer to Hartwell Vick. It is objected also, that there was no notice of the application for dower as required by law; but the record shows that an order of publication was made at the filing of the petition, and the cause continued down on the roll until June following. We feel bound by established rules, to infer that the notice was published in pursuance of the order, and that the proceedings of the court below were regular in the absence of any evidence to the contrary upon the record. But this objection cannot be heard from the appellant who appeared and defended the claim of the demandants upon the merits.

The only remaining question and the principal one in this cause, as it is presented by the other assignment of errors, is, whether the proof establishes the appellee’s right of dower in the two lots numbered 91 and 92? The proof is full and complete as to the possession of Hartwell Vick, during his coverture with Sylvia C. Doss, for several years before his death. This is sufficient to entitle the widow to dower as against all the world except those who may have the paramount title. For it is a well-settled rule, that the seisin of the husband even for a moment will entitle the wife to dower against strangers and those claiming under him, even though his seisin be tortious. A tenant at will made a feoffment of the land and died; and the feoffee was estopped from denying the right of the wife of the feoffor to. dower. And this principle is recognised in all the cases on this subject, both in England and this country. But his title is complete under the covenant which transferred the title of the other heirs of Newit Vick to him. It is true that Newit and Emily Vick, two of the heirs, did not unite in this conveyance. But it does not lie with the appellant to urge the outstanding title of these heirs. They cannot be prejudiced by any decree in this cause, and it will be time enough to consider the extent and character of their claim when it is made. It is not competent for a mere stranger to interpose it, and to do that for them which they may never think it proper to do for themselves. The objection taken to the introduction of the deed to Hartwell Vick as evidence in the court below, on the ground that no proof was offered of its introduction, comes too late. It was read without objection, and we will not suffer the question to be sprung upon the appellees in this court, when there is no opportunity to meet it. If, when the deed was offered below, formal proof of its authenticity had been demanded, it must have been produced, and if not, the court would have been bound to reject it. It was competent, however, for the appellant to waive it, and by not objecting there he will be held here to have" done so.

The question in regard to the rights of the appellees under the covenant A, were fully decided upon in this court at the last January term thereof in the case of Peter J. Bergen v. Doss and Wife. In that case the appellees were held to be entitled to dower in other lands conveyed by the same deed; and we are satisfied of the correctness of the determination.

Let the decree of the court below be affirmed "with costs to the appellees.