Francis v. Sandlin

McCLELLAN, J. Dower, after the death of the husband and before assignment, is in nature a right of action. It is not an interest or estate in the realty, and is unassignable, except by way of extinguishing release1 to the terre-tenant.—Barber v. Williams, 74 Ala. 331; Reeves v. Brooks, 80 Ala. 26; Penny v. Weems, (Ala.) 39 South. 574. See 2 Scribner on Dower, p. 27. It follows that the surviving widow of the ancestor, from whom the lands descended to the joint owners or tenants in common, is not a necessary party to the cause as made by the averments of this bill. She is without interest or estate in the lands sought to be sold for distribution. Her dower does not appear to have been assigned. The demurrer, raising the question that, as dowress, she is a necessary party, was correctly overruled. The only other assignment insisted on by appellant is based upon the demurrers, which were overruled, to the point that the averments of the bill are not sufficient to show that the deed from the Auditor to appellant is void. This deed purports to convey only 40 acres of. the lands involved, and that by including it in a mere comprehensive call. That fact cannot avail to render it a nullity in toto. It, if otherwise valid, is sufficient to transmit the interest or title of the state to appellant in whatever lands in the quarter section described the [587] state had any title or estáte. The state could only convey the right, title, or interest it had; and an ineffectual attempt to convey a greater estate or interest would not invalidate the conveyance of that property conveyable. The fifth ground of demurrer is general, and therefore bad. — Code 1896, § 3303. The demurrant, by the fourth ground, seems to concede the invalidity of a tax sale en masse of distinct lots or tracts of land, where such sale could have been separately or in parcels made. As the matter is presented, a decision of this proposition is unnecessary. This ground of demurrer tabes the point that it does not appear from the bill that such separate sale was practicáble. The hill is affirmatively opposed, in averment, to the point made, since it appears therefrom that the lots or tracts sold en masse were distinct, and could easily have been sold separately or in parcels. Hence the demurrer on this ground was properly overruled. The other ground of demurrer is clearly without merit. The decree will be affirmed. Tyson, C. J., and Dowdell and Anderson, JJ., concur.