Torrey v. Minor

1 S. & M. 489

• Court: Mississippi Chancery Courts
• Decided: December 15, 1842
• Status: Published

Opinion

Chancellor.

The complainant derives title to the tract of land in controversy, indirectly, through Samuel Gibson, deceased, who conveyed by covenant of general warranty to his. vendee, binding himself and heirs. This was a real covenant running with the land, and, upon well settled principles, enured to the benefit of all subsequent vendees. This land was subsequently sold and conveyed, through an intermediate vendee, to Stephen Minor, who bad intermarried with Ann Gibson, one of the heirs of said Samuel Gibson. After the death of Minor, she filed her petition in the Probate Court of Claiborne county, to have her dower allotted to ' her in the land, which petition was allowed, but no .allotment has been made. The Grand Gulf and Port Gibson Banks, having judgments against Ann Minor, have levied their executions upon her dower-right, and threaten to sell the same. The object of the bill is to enjoin these sales, as well as to enjoin the widow from further prosecuting her claim of dower. 1 have no doubt of the complainant’s right to relief, as to all the parties. Ann Minor is barred of her dower-right. 1. Because she is estopped by the covenant in the* deed of her ancestor, Samuel Gibson, which is equally binding upon her as it was upon him. The covenant would be binding upon her, to the extent of assets descended from her father, even if the title of the complainant was successfully assailed by a third person.

2. The covenant in the deed is her own covenant, and a court of equity will interpose to prevent a breach of covenant, where-irreparable damage would follow such breach, as would be the case here, since it is alleged that the defendant Ann Minor, and all the other heirs of Samuel Gibson, are insolvent.

3. She is barred by the statute of limitations, twenty years having elapsed from the death of her husband before the time of the application for dower. An action for dower is a possessory action, and is within the statute on that subject, there being no exception as to possessory actions.

In regard to the creditors of Ann Minor, it is sufficient to remark, that even if she had herself' a right of dower, yet while it remains unascertained, and until there has been an actual admeasurement, by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, which cannot be the subject of seizure and sale under an execution at law.

Let a decree be prepared granting a perpetual injunction against the claims set up at law by the defendants.