Chapman v. Schroeder

• Decision Date: 31 August 1851
• Docket Number: No. 43.,43.
• Citation: 10 Ga. 321
• Parties: Ambrose Chapman, plaintiff in error. vs. Louisa J. W. Schroeder, defendant in erorr.
• Court: Georgia Supreme Court

10 Ga. 321

Ambrose Chapman, plaintiff in error. vs. Louisa J. W. Schroeder, defendant in erorr.

No. 43.

Supreme Court of the State of Georgia

AUGUST TERM, 1851.

Application for dower, in Monroe Superior Court. Heard before Judge Stark, March Term, 1851.

The defendant in error, as the widow of John A. Schroeder, filed her application in Monroe Superior Court, to have her dower assigned her in a lot of land lying in Monroe County, and granted by the State of Georgia to the said John A. Schroeder, on the 6th day of June, 1822, and by him conveyed, on the same day, to the plaintiff in error.

The application was traversed on the following grounds:

1st. Because John A. Schroeder being an alien, was never seized of the land out of which the demandant claims dower.

2d. Because said land was wild and uncultivated at the time it was sold by the said John A. Schroeder to this defendant, and not dowable.

3d. Because the claim of demandant is stale and not entitled to consideration in a Court of Justice, on account of lapse of time, and the demandant's abandonment of it and neglect to prosecute it. 4th. Because no notice has been given to the representatives of the estate of the said John A. Schroeder, and if there be no representative, the demandant cannot proceed until one be made.

5th. Because heretofore, to wit: on the—day of—in year 1828, after this defendant had been notified that application would be made by the said Louisa J. W. Schroeder, at the next Superior Court of said County of Monroe, for her dower in this same land, it was at said Court agreed by and between this defendant and the counsel for the said Louisa J. W. Schroeder, to settle said claim of demandant for dower in and to the land mentioned in her present petition, by this defendant paying the cost which had accrued in the prosecution of her pretended claim, which this defendant then and there paid, and the same was accepted by her counsel in full thereof, and the further prosecution of said claim was then abandoned, and this defendant has remained in the peaceable and uninterrupted enjoyment of said land from thence until the—day of—when he received notice of this intended application.

6th. Because this defendant is a purchaser without notice, for a valuable consideration, and has been in adverse possession of said land for twenty-seven years, since the death of the said John A. Schroeder, and uninterrupted adverse possession for twenty-two years.

7th. Because he says that the said supposed cause of action in the demandant's petition mentioned, did not accrue to the said Louisa W. Schroeder, within seven years before the exhibiting of the petition of the said Louisa W. in this behalf.

After issue joined, the demandant's counsel moved to strike out the 2d and 4th grounds, which motion was granted, and counsel for defendant excepted.

Evidence was submitted which proved the marriage of the. demandant with John A. Schroeder, in the City of Charleston, S. C. in the month of October, 1816, and that Schroeder died in the year 1823, in the City of Savannah; also the plat and grant for the lot of land, from the State of Georgia, to John A. Schroder, was given in evidence. An exemplification from the City Court of the City of Charleston, was offered in evidence, for the purpose of proving that the said Schroeder had been naturalized according to the laws of the United States, to which defendant\'s counsel objected on several grounds, which the judgment of this Court renders it unnecessary to specify.

The deed from Schroeder to the defendant was given in evidence, dated on the 6th day of June, 1822. It appeared from the evidence of Washington Poe, Esq. that in 1828 he was counsel for the demandant, in an application for dower in this same land, and finding that he must fail to succeed, he agreed with Chapman, if he would pay the cost he would dismiss the petition, which agreement was carried out.

Among other things, the Court charged the Jury, " that their verdict would depend upon three facts—the marriage of the wife to the alleged husband, the seizure of the husband during coverture, and his death. Was the demandant married to the grantee? Was the grantee seized of the land at any time during the coverture? Is the husband dead? If these questions are answered in the affirmative by the evidence, the demandant is entitled to a verdict; that the demandant's right of dower was not barred by either lapse of time or the Statute of Limitations; that the dismissal of the former suit by Washington Poe, Esq. did not operate as a release of her right of dower."

To which counsel for defendant excepted, and upon these exceptions have assigned error.

Pinkard & King, represented by Hall, for plaintiff.

McDonald, represented by Rice, for defendant.

By the Court.—Warner, J. delivering the opinion.

This is an application for dower under the law as it existed prior to the enactment of the Statute of 1826, limiting the wife's right to dower in such lands of which her husband died seized and possessed, and such as the husband acquired by his intermarriage with the wife. The tract of land in which the demandantclaims dower, was drawn by John A. Schroeder, in the land lottery of this State, granted to him on the 6th day of June, 1822, and on the same day conveyed by him to Ambrose Chapman, the defendant.

On the trial of the cause in the Court below, several questions were made, which are now before this Court by writ of error, and we shall notice them in the order in which they appear in the record.

The first question made and decided in the Court below upon which error is assigned is, that the Court sustained the demurrer of the demandant, to the second and fourth objections taken in the defendant's traverse. The first ground taken in the traverse is, that the widow is not dowable in this State of wild and uncultivated lands. The demurrer to this ground was properly sustained. Whatever may have been the rule of the Common Law in England in regard to this question, (if such was the rule there as is contended for,) it was not properly adapted to the circumstances of the people of this State, and, therefore, was not adopted by the Act of 1784. Prince, 570.

As early as 1760, the Legislature of this State passed an Act providing in what manner the wife should relinquish her dower, in all conveyances of lands and tenements. Prince, 159. At that time most of the lands in the State were wild and uncultivated, and yet the Legislature seem to have acted upon the idea that if the wife did not relinquish her dower in and to the lands conveyed by her husband, she would be entitled to demand it, as well in wild, uncultivated lands, as any other. The reason given in some of the cases why the widow was not dowable in England of wild uncultivated lands is, that the land would be wholly useless to her if she did not improve it, and if she did, she would expose herself to disputes with the heir, and to forfeiture of the estate for waste.

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