Boyd v. Hunter

B. F. SAFFOLD, J. The appellee, the widow of John S. Hunter, deceased, filed her bill against his administrators and the other appellants, who were in possession, to recover the rents of her dower interest. She was married on the 15th of January, 1866, and her husband died on the 30th of August, following. On the 14th of November preceding the marriage, Hunter rented his lands to McArthur & Go., for the year 1866, they paying part cash and giving their note for the remainder, due January 1st, 1867. At the close of that year, Boyd and Milhouse, the administrators, rented the same lands for 1867, to Thomas Biggs and Starke Hunter, and took their notes for the rent due January 1st, 1868. The appellant’s dower in these lands was assigned to her on the 15th April, 1867. The bill was filed October 18th, 1867, and made the administrators, in their representative capacity and personally, and Biggs and Starke Hunter individually, as tenants, parties defendant. This bill was demurred to by all of the defendants — 1st, for want of equity; 2d, multifariousness; 3d, misjoinder of parties defendant; 4th, non-joinder of parties defendant ; 5th, because the debt claimed was not due. The demurrer was overruled. • At the final hearing on the pleadings and proof, the chancellor decreed the relief prayed for, confirmed the report of the register without objection, and rendered judgment against the administrators for the rent of the dower land from the death of the decedent to the 1st pf January, 1867, and against them individually, and [718] against Riggs and Hunter for the rents of 1867, and charged the costs against the estate. For the errors alleged in this decree the appeal was taken. The appellee, having procured the assignment of her dower in the probate court, sought in equity the recovery of the rents from the death of her husband to the date of the assignment. Of her right to do so there can be no question in this State. — Slatter v. Meek, and Wife, 35 Ala. 528; McAllister's Exr's v. McAllister, 37 Ala. 484; Perrine's Exr's, v. Perine, 35 Ala. 644; Waters v. Williams, 38 Ala. 680. The widow’s right to have dower assigned to her is not a legal right in the land, nor in any portion of it; and hence, on the mere strength of her right to be endowed she could maintain no action at law to recover the possession, nor for the rents and profits.— Cook & Hardy v. Webb, 18 Ala. 814; Inge v. Murphy, 14 Ala. 289; Waters v. Williams, 38 Ala. 680. The non-joinder of the heirs-at-law of Jno. S. Hunter, as parties defendant, was not a material objection. The dower had been allotted, and the rents had been received by the administrators; the heirs could not have recovered it from them. — McLaughlin v. Goodwin, 23 Ala. 846. If Riggs and Hunter were improperly joined with the other defendants, they only could take advantage of it. Horton v. Sledge, 29 Ala. 478. The consideration of whether they could do so or not, is so involved with the ojection of multifariousness, that we will examine them together. To prevent multiplicity of suits, courts of equity sometimes entertain bills by complainants between whom there exists no privity of contract, and against defendants between whom exists no connection whatever, except a community of interest. The objection of multifariousness is confined to cases where the case of each defendant is entirely distinct and separate in its subject-matter from that of his co-defendants. All that can be done in each particular case, as it arises, is to consider whether it come nearer to the class of decisions where the objection is held fatal, or to the other class, where it is not.— Kennedy v. Kennedy, 2 Ala. 571; Gaines and Wife v. Chew, 2 How. [719] 619, 641; Horton v. Sledge, 29 Ala. 478. If the complainant has an equitable right against each of the defendants in the subject-matter of the suit, she may proceed against all of them in one suit. The claim for rents of the dower interest from the death of the husband to the assignment of . dower, was a single demand, and shown by the authorities before cited to be recoverable in chancery. The administrators having received a part of the rents, and having leased the lands and taken notes for the remainder, must be considered as holding them for the widow, — Boynton v. Sawyer, 35 Ala. 497; McLaughlin v. Godwin, 23 Ala. 846. Eiggs and Hunter were the tenants of the administrators. If they had not paid the rent due from them before the assignment of dower, they, too, were accountable to the dowress in equity up to that time : for though a tenant may not deny his landlord’s title, he may show that it has passed to another by operation of law. — English v. Key, 39 Ala. 113; Rev. Code, §§ 2616, 1568. The demurrer was properly overruled. It is objected to the decree, that as the decedent had leased the lands before his marriage with the appellant, his administrators were not liable to her for the rents accruing under that lease. An estate for years, or other mere chattel interest, interposes no impediment to a title of dower. If rent be reserved to the husband, the widow is entitled, upon endowment, to a proportionate part of such rent.— Herbert v. Wren, 7 Cranch, 370; 1 Hilliard on Real Prop. 3d ed., p. 103, § 16; 1 Scribner on Dower, p. 361, § 6. It is further objected that Eiggs and Hunter are liable at law only, if at all, for the rents accruing after the allotment of dower. These rents could certainly have been recovered in an action at law, but as the jurisdiction of equity hadattached, thatcourt will complete justice between the parties by settling a mere matter of account. — Stow v. Bozeman's Exr's, 29 Ala. 397. There would be more force in this objection if the assignment of dower ver se evicted the tenant. But although as soon as the premises have been set out and assigned to the wife, and the allotment confirmed by the court, the freehold vests in her by virtue of her hnsband’s seizin, and her estate is a continuation of [720] his by appointment of law, the tenant is not required to be ousted. — Coke, Litt. 239, a; Windham v. Portland, 4 Mass. 384; 1 Hilliard on Real Prop., 3d ed., p. 103, § 46, and note b. Note by Reporter. — At a subsequent day of the term appellants applied for a rehearing, to which the following response was made: B. F. SAFFOLD, J. — We have carefully considered the application for a rehearing. The matters on which it is based- were not slighted in the former investigation, but received due attention. We have reviewed that examination, and can not see that there is error in the decision. The rehearing is denied. Whether or not the tenants were at liberty to relinquish possession of any part of the dower interest on its assignment, there is no evidence that they did so. They were liable for the rent which accrued during their possession. Rev. Code, 2616, 1568. The administrators could not be liable otherwise than iudividually for the rents accruing under the lease made by them. The report of the register, ascertaining the value of the rents, was not objected to. The decree is affirmed.