Smith v. Pate

McCay, Judge. 1. We should hesitate to interfere with this verdict on the-ground that there is no evidence to justify setting aside the deed. It. may be there is strong evidence in favor of its integrity, but there is certainly some evidence to show that it 250 was unduly obtained. But we think the verdict as it stands is illegal. Under the act of 1866 the husbands of these ladies had no interest in this land, and a Verdict for the complainants generally is a verdict in favor of the husbands and wives jointly. Again, if the deed be set aside the land belongs to the estate of the old gentleman. It is to be administered on, or go to the heirs-at-law according to the circumstances. The rights of the widow are fixed by law. She takes a child’s part or her dower, at her option. What was there in the evidence or the case to justify the application of the proceeds to the widow during her life? She was no party to the proceedings and may not desire to have her rights so disposed of. The same may be' said of the other daughters who were not parties to the bill, as well as of Mrs. Smith. There was no prayer in the bill, or any call in the proof for this administration and division of the land, nor were there proper parties before the court to justify it. . 2. The jury seem to have set aside the deed under an impression that they could give a better course to tbe title to these lands than either the deed or the law, and' this may be true in this case, but it is not permitted by law. The verdict should have been for the deed or against it, leaving the widow .as well as the others to their rights. We are not satisfied that the jury would have set aside the deed except on the terms stated, and we think there ought to be a new trial. Judgment reversed.