Green v. Causey

By the Court. Warner, J. delivering the opinion. This case came before the Court below, on objections filed to the return of the commissioners who had made an assignment of dower to the demandant. [438] The first objection, that the third assigned to the demandant was greater than either of the other thirds, will necessarily be controlled by the judgment rendered upon the fourth ground, and therefore we pass that by for the present. [1.] The second objection taken to the demandant’s right to dower is, that before her marriage with her late husband, there were divers judgments against him unsatisfied, which created prior liens upon the land, to that of the widow’s right of dower, his estate being insolvent. The question is, do judgments against the husband, prior to the marriage, when his estate is insolvent, defeat the right of the wife to dower in his lands and tenements ? By the Act of 1826, the widow is entitled to dower in all lands of which her husband may have died seized and possessed. Prince, 249. Although under our law, a judgment creates a lien upon the defendant’s property, yet he continues seized thereof until a levy and sale in the manner pointed out by law. Although judgments were obtained against the husband prior to his marriage, yet, that fact alone did not defeat the seisin of his land; and when he married his wife, and died so seized of the land in controversy, his widow, under the provisions of the Act of 1826, became entitled to dower in all the lands of which he died seized and possessed. Whether the widow takes her dower, subject to the incumbrance of the judgments against her husband prior to the marriage, is a question not made in this record, and upon which we express no opinion. The motion to strike out this ground of objection, was properly sustained, in our judgment, by the Court below, as constituting no legal objection to the widow’s right to dower in the lands of her deceased husband. The third ground taken in relation to the widow clandestinely-sending off two of the negroes, was no legal bar to her right to dower, and the Courtbelow also properly sustained the motion to strike out that objection. The first and fourth objections to the assignment of the widow’s dower to the lands in question, relate to the portion assigned to her, which necessarily depends, under the provisions of the Act of 1839, on the locality of the land. By that Act, if [439] the lands are “ without any corporate City, Village or public place of business,” then the widow is to have one-third part thereof assigned to her, including the tenements, 'if the lands are with in any corporate City, Village or place of public business, then the widow is to have assigned to her one-third part of all the lands and tenements, according to quantity or valuation, as shall be thought proper, just and equitable. Cobb’s New Digest, 229. The Court left the question as to the locality of the premises to the Jury, and the charge of the Court to the Jury on this branch of the case, is excepted to. If there is error in the charge of the Court to the Jury, we are unable to discover it. The charge, as it appears in the record before us, is substantially in the very words of the Statute. Let the judgment of the Court below be affirmed.