O'Steen v. O'Steen

SAYRE, J. Appellant filed her bill in this cause under the statute to settle the title to land in Jefferson county. Appellee is made the sole party defendant. The cause was submitted for final decree on an agreed statement of facts, which should appear in the report of the case. Appellant’s bill was dismissed, and from that decree this appeal is prosecuted. In effect the ruling in the trial court was that appellee had an interest in the land, and that therefore no decree to the contrary could be rendered. The decree was correct. [1,2] The inchoate dower right of the wife of a cotenant is subordinate to the right of the other cotenants to have partition. The right to partition is paramount. The liability to be divested by an adversary proceeding for partition attaches as an incident to every estate in common, and the *399 wife’s inchoate dower is affected by the same liability. In the event of a partition in kind, whether by judicial decree or by agreement of the cotenants, the right of the wife is transferred to that part of the estate set apart to her husband; but where the land is sold for division under a decree, the purchaser takes title free from the incumbrance of dower right, the realty is converted into personalty, and the dower right of the wife, or wives, must be fastened upon the proceeds or it is extinguished and destroyed. These are the principles of the common law as modified by the statute (section 3817 of the Code of 1907), which provides, inter alia, that a sale or partition of land of joint owners or tenants in common shall bar the right of dower of the wife of the, joint owner or tenant in common in the land sold or partitioned. McLeod v. McLeod, 169 Ala. 654, 53 South. 834; Cooper v. Cloud, 194 Ala. 449, 69 South. 928. [3] But the wife’s inchoate right of dower, while it does not rise to the dignity of an estate in land, is a valuable right, having some of the incidents of property, and may not be defeated by the act of the husband without the assent and concurrence of the wife. Holley v. Glover, 36 S. C. 404, 15 S. E. 605, 16 L. R. A. 776, 31 Am. St. Rep. 883, cited in Cooper v. Cloud, supra. [4] In the brief for appellant our attention is called to the statement of the agreed facts that defendant’s husband joined the other cotenants in a conveyance of the land to complainant, and that “the said deed of conveyance was executed and delivered to complainant by the said parties in lieu of a partition or sale for division of the real estate described therein,” and the argument is that eotenants may, by agreement and conveyance, do what the law would do at the instance of any one of them. But in the case of a sale for division — that being the only case in which it is supposed that the wife’s inchoate dower may be destroyed— the law does not do just what the cotenants in this case have sought to do. It converts the husband’s interest into money, and thereby incidentally affects the wife’s inchoate right of dower, but it does not cut off the wife from recourse to the court with a prayer for an arrangement by which her contingent right may be preserved in the fund into which the land has been converted; certainly, at least, it does not permit the husband, of his own initiative, and without the wife’s concurrence or assent, to destroy the wife’s right, as was the effort of the parties to the conveyance in this case. The trial court correctly held, therefore, on the agreed statement of facts, that the defendant’s contingent interest' in the land of her husband had not been destroyed by his joinder in the conveyance. Appellant relies upon the same language used in McLeod v. McLeod, supra. If expressions may be found in the opinion in that case not in harmony with what has been said in this, such expressions were by the way, were not necessary to the decision in that case — which was correctly decided on its facts — and are not authority in the case at bar. Affirmed. SOMERVILLE, GARDNER, THOMAS, and BRQ.WN, JJ., concur. ANDERSON, O. J., and McCLELLAN, J., dissent. Footnotes [1] <®=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] <&wkey;Ror other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes