Saltmarsh v. Smith

RICE, C. J. Without looking to the deposition of Bower, it is established that the deed which he, as attorney of Butherford, executed to Saltmarsh, for the real estate here in controversy, was in fact executed after the death of Rutherford, although it was made to bear date before his death. The validity of the deed depends upon the question, whether the power given by Butherford to Bower, under which Bower assumed to execute the deed, survived Butherford. The general rule is, that a power ceases Avith the life of the person giving it. The exception is, Avhere the power is coupled Avith an interest — that is, Avith an interest in the thing itself, and not an interest only in that which is produced by the exercise of the power [408] itself. The power given by Rutherford to Bower was not coupled with an interest- in the thing — the real estate ; it was not engrafted on an estate in the land; and, therefore, it expired on the death of Rutherford. As the deed has nothing to support it except that power, and as the power had céased before the deed was executed,'the deed is utterly void. — Hunt v. Rousmanier, 8 Wheat. 203; Clayton v. Fawcett, 2 Leigh, 19; Haughtaling v. Marvin, 7 Barb. Sup. Ct. R. 412; Scruggs v. Driver, 31 Ala. 274; Huston v. Cautril, 11 Leigh, 136. [2.] The deed was ante-dated. It purported to have been executed before the death of Rutherford, although in fact it was executed afterwards. Its invalidity did not appear on its face. It formed a cloud upon the title, which a court of chancery might remove, at the instance of a creditor of the estate of Rutherford, interested in having the real estate sold to advantage, aud impediments to such sale removed. The equity of the bill is too clear to admit of discussion. — Dargan v. Waring, 11 Ala. Rep. 988; Rugeley v. Robinson, 19 Ala. Rep. 404; Gordon v. Lowell, 21 Maine, 251; Henderson v. Burton, 3 Iredell’s Eq. Rep. 259; McDermott v. Strong, 4 Johns. Ch. R. 687; Hadden v. Spader, 20 Johns. 554; Ashley v. Pocock, 3 Atk. 208; Watts v. Gayle, 20 Ala. Rep. 817; Moffat v. Ingham, 7 Dana, 495; Hunt v. Acre, 28 Ala. Rep. 580. [3.] The nature and validity of the writing obtained by Saltmarsh, in 1845, from the widow of Rutherford, and endorsed on the deed, must be passed on. In passing on it, it must be noticed that it is not a relinquishment of dower by a feme covert under our law, (Clay’s Digest, 174, § 10,) but a merer transfer to Saltmarsh of the widow's mere “ right of dower,” — her dower never having been assigned to her. We consider it clear, upon authority, that before the widow’s dower has been assigned to her, she has no estate in the land; and her mere “ title of dower is, for most purposes, nothing more than a right of action, and, consequently, transferrable in no other mode than by release to the terre-tenant by way of extinguishment.” — Park on Dower, 334, (11 Law Library;) Ridgway and Wife v. [409] McAlpine, at the present term, and authorities there cited; Green v. Putnam, 1 Barbour’s Sup. Ct. Rep. 500; Wallace v. Hall, 19 Ala. R. 367; Hunt v. Acre, supra. Saltmarsh had no title to the real estate, either legal or equitable, either under the deed or otherwise. The writing endorsed on the deed, and signed by the widow, could not operate in Ms favor “ by way of extinguishment; ” but could operate, if allowed to operate at all, only as a conveyance of the widow’s mere right of dower. If it were allowed to operate as a conveyance, it would invest him with the right to maintain an action for it in some court. It cannot be allowed so to operate, but must be treated as wholly inoperative; and Saltmarsh must be viewed and treated as one who took and retained possession of the real estate without right or title. We understand the chancellor to have directed the register, among- other things, that if in obeying and executing the order of reference, he allowed any part of Saltmarsh’s claim of indebtedness against the estate of Rutherford, he should charge Saltmarsh with rent to the extent shown in the order, by deducting such rent from Saltmarsh’s claim ; and that he should also deduct from Salt-marsh’s claim the reasonable value of the loidoio’s dower interest, unless Saltmarsh abandoned the aforesaid transfer or conveyance of her claim to dower. We have shown above, that Saltmarsh got nothing by that transfer or conveyance — that it was void; we must hold, therefore, that the chancellor erred in directing the deduction on account of the dower interest. In all other respects, the decree of the chancellor is fully as favorable to Saltmarsh as it should have been. Prom the view we take of the case, the same conclusion, as against him, would be attained, if we were to sustain his assignments of error as to the testimony of Bower, and as to the exceptions to the interrogatories to George Haige, and to the testimony of P. L. Owen. And as it is unnecessary to a correct decision of the present appeal, taken by Saltmarsh, we decide nothing as to these assignments of error, further than to say, that however the law may be as to them, the other matters appear [410] ing ill the record show that he has no right to complain of any part of the decree of the chancellor, except that part which directed the deduction on account of the dower interest. In that particular, the decree is reversed; in all other respects, it is affirmed. As the main question in the case, and all others except the one above pointed out, were correctly determined against Saltmarsh, and as in chancery cases we have a discretion as to costs, we think it proper, upon the case as presented by the record, to tax him with the costs of this court, although in the single particular above pointed out there was an error committed against him. That error could not possibly have affected him, if he had abandoned the transfer or conveyance of the widow’s claim to dower. That transfer gave him no right, and the abandonment of it would not have cost or lost him any thing. When he comes here to obtain the correction of such an error, and all the main questions are decided against him, we will correct the error, but at his costs. Our predecessors went greatly beyond this in Powell v. "Williams, 14 Ala. 476; and we are not sure that we could follow that case in all things. This decision must be understood as confined to the points made by the assignments of error of Saltmarsh, the appellant. Let the cause be remanded for further proceedings. Stone, J., not sitting.