Brown v. Brown

• Citation: 78 S.E. 447,94 S.C. 492
• Parties: BROWN et ux. v. BROWN et al.
• Decision Date: 27 May 1913
• Court: United States State Supreme Court of South Carolina

78 S.E. 447

94 S.C. 492

BROWN et ux. v. BROWN et al.

Supreme Court of South Carolina

May 27, 1913

Appeal from Common Pleas Circuit Court of Chesterfield County; Thos W. Spain, Judge.

Action for injunction by J. H. Brown and Nancy A. Brown, his wife against Jesse C. Brown and another. From an order refusing to enjoin the defendants from committing waste on land in which the wife of the plaintiff had a mere inchoate right of dower plaintiffs appeal. Reversed and remanded.

Miller & Lawson, of Hartsville, for appellants. Dennis & Tison, of Hartsville, for respondents.

HYDRICK J.

This is an appeal from an order refusing to enjoin the defendants from committing waste, on the ground that the wife of a grantor is not entitled to the equitable aid of the court, in the protection of a mere inchoate right of dower.

In substance, the complaint alleges: That the plaintiffs were lawfully married; that during coverture the plaintiff J. H Brown conveyed the land described in the complaint to Jesse C. Brown; that the plaintiff Nancy A. Brown has never relinquished her dower in said lands; that Jesse C. Brown has sold to the defendant A. M. McNair all the timber on said lands, without which they would be rendered almost, if not altogether, worthless; that the defendants have already committed acts of waste, and threaten to continue to do so, unless enjoined, to the irreparable injury of the plaintiff Nancy C. Brown; that the defendant. Jesse C. Brown is insolvent; and that the plaintiffs have no other adequate remedy.

In the consideration of this question, it will be necessary to determine the nature of the inchoate right of dower, which is thus described in 2 Scribner on Dower 5: "It is difficult to state with precision the nature or qualities of inchoate dower interest, when considered as a right of property. A certain vagueness of expression uniformly characterizes the discussions of the subject, and these discussions are commonly attended with unsatisfactory results"--and after considering the cases in which the nature and qualities of this right have been discussed, the author concludes in these words: "Although, therefore an inchoate right of dower cannot be properly denominated an estate in lands, nor indeed a vested interest therein, and notwithstanding the difficulty of defining with accuracy the precise legal qualities of the interest, it may, nevertheless, be fairly deduced from the authorities that it is a substantial right, possessing, in contemplation of law, the attributes of property, and to be estimated and valued as such." After quoting the foregoing language with approval, Mr. Justice McIver (afterwards Chief Justice), in the case of Shell v. Duncan, 31 S.C. 547, 10 S.E. 330, 5 L. R. A. 821, says: "The inchoate right of dower has been treated as such a substantial right of property as will afford a basis for an action to protect it. *** Its present value may be judicially ascertained and protected." He cites authorities to sustain these propositions. In Park on Dower, 237, it is said to be "a right attaching by implication of law, which although it may possibly never be called into effect (as where the wife dies in the lifetime of the husband), yet from the moment that the fact of marriage and of seisin have concurred is so fixed on the land as to become a title paramount to that of any other person claiming under the husband by a subsequent act" This language is quoted with approval in the case of Cunningham v. Shannon, 4 Rich. Eq. 135. In the case of McCreery v. Davis, 44 S.C. 195, 22 S.E. 178, 28 L. R. A. 655, 51 Am. St. Rep. 794, the court, in speaking of the right of dower,...