Thrasher v. Pinckard's Heirs

GIBBONS, J. According to the views which we entertain of the case presented by the bill, the decision of the Chancellor in dismissing it for want of equity cannot be sustained. It will bo recollected that, on a motion to dismiss for want of equity, all the allegations of the bill are to be taken as true. Adopting this rule, under previous decisions of this court, the bill, taken as a whole, presents two distinct grounds of equity, each of which is sufficient to give the court jurisdiction of the case. The counsel engaged in the argument of the cause seem to differ as to the extent of the covenant for title found in the bond of P. Pinckard, deceased. The obligor in this bond binds himself to make “ good and lawful titleson the payment of the purchase money according to the terms of the stipulation.— This covenant undoubtedly binds the obligor to convey a title free from incumbrances, and a right of dower outstanding, whether the right is one perfected by the death of the husband, or one merely inchoate, is such an incumbrance upon tbo title as renders it yi defective and justly obnoxious to tbo objections of the grantee.—Parks v. Brook, 16 Ala. 529; Springle’s Heirs & Admr’s v. Shields & Paulling, 17 Ala. 296. The ob ligor of the bond was hound by the terms of his contract to convey a title free from all claims of dower whether of his own wife or of any other person, and the condition of his bond could not be said to be performed whilst this claim for dower set up by Mrs. Pinckard was outstanding. This being tbe extent and scope of that contract, under the decision in the case of Springle’s Heirs & Admr’s v. Shields & Paulling, and the authorities there cited, the complainants would be entitled to compensation for this dower claim, and to “have its value deducted from the [621] purchase money. This is a clear equitable right, which, of itself, gives the court jurisdiction of the cause, and shows the error of the Chancellor in dismissing the bill for want of equity. Again; the bill alleges, that, by the changes and improvements that have been made upon fcho place since it passed into the hands of the complainants, its value has been so much enhanced, that an allotment of dower by metes and bounds under the statute, by the Orphans’ Court, would bo inequitable and unjust. Taking this allegation to be true, we here see also, under the decisions of this court, another distinct ground of equitable intérferenee by the Chancery Court. The law undoubtedly is, that a demand-ant who seeks dower in land aliened by the husband during his life-time, is entitled to be endowed as of the value of the lands at the time of the alienation ; and if the lands have subsequently, in the hands of the purchasers, greatly increased in value, from the improvements which they have made from time to time, the demandant can claim no benefit from such improvements, but must be confined to the value, as above stated, at the time the lands were sold. The Probate Court, being one of limited jurisdiction, can only allot dower in the mode pointed out by statute, and where the decree has to be moulded so as to meet the justice of the case arising from the peculiar circumstances, a court of chancery alone has power to make the proper decree, nor can the Probate Court allot dower, except in those lands of which the husband died seized.—Nance v. Hooper, 11 Ala. 552; Barney v. Frowner and Wife, 9 Ala. 901. Here is the second ground of equity shown by the bill. For these reasons, the decision of the Chancellor dismissing the bill for want of equity is reversed, and the cause remanded, with instructions to have the samo re-doeketed, and that the court below proceed with the cause. It is further ordered that the defendants in error pay the costs of this court.