Tibbetts ex rel. Melton v. Langley Manufacturing Co.

Citations

• 12 S.C. 465
• 1879 S.C. LEXIS 57

Syllabus

<p>1. The recitals made in a mortgage deed of lands executed during coverture by a husband some days after obtaining a lega} seizin, are not admissible in evidence to affect the wife’s right of dower in such lands, she not having been a party to the mortgage. ■</p> <p>2. After the right of dower has attached, the wife’s interest is independent of the husband, and she is no longer a privy in estate with him, and is not bound by his admission, subsequently made, of an agreement at the time of purchase affecting her right of dower. Cases cited.</p> <p>3. A judgment of foreclosure and a sale under proceedings against the husband alone in his lifetime, do not bar- an action by the widow for her dower in the land so sold.</p> <p>4. The jurisdiction of Probate Courts in matters of dower, is not limited to cases where no dispute exists as to the right of dower or as to title. Stewart v. Please, 4 S. Q. 37.</p> <p>5. This court, on appeal, will not disturb the determination of a Court of Probate, whereby it refused to stay the prosecution of an action for dower in that court, until the costs of a former action in a Court of Equity, which had been stricken from the docket, were paid.</p> <p>6. A widow is not barred of her action for dower by reason of a former action upon the same claim, not prosecuted to judgment. The act of 1744, (3 Stat. 612), has no application to cases of dower.</p> <p>7. Where a widow has a decree establishing her right to dower, with leave to apply for the necessary orders to carry the decree into effect, and dies pending an appeal therefrom, her administrator is entitled to an account from defendant of rents and profits.</p> <p>8. A widow has a clear right to have her dower assigned to her in the surplus value of lands which were sold for the satisfaction of a mortgage, to which her right was subject, but in respect to which she has made no formal relinquishment. Per Maher, Oirc,wit judge.</p>