Clancy v. Stephens

• Decision Date: 14 June 1891
• Citation: 9 So. 522,92 Ala. 577
• Parties: CLANCY v. STEPHENS ET AL.
• Court: Alabama Supreme Court

9 So. 522

92 Ala. 577

CLANCY v. STEPHENS ET AL.

Supreme Court of Alabama

June 14, 1891

Appeal from circuit court, Crenshaw county; JOHN P. HUBBARD, Judge.

Ejectment by Eliza Clancy, by her guardian, against F. M. Stephens. Death of appellant was suggested, and a motion made to revive in the name of the heirs at law.

Gamble, Bricken & Gamble and Parks & Parks for appellants.

J E. P. Flournoy and M. W. Rushton, for appellee.

STONE C.J.

Daniel Clancy died intestate in August, 1876. At the time of his death he owned and resided on the lands-122 acres-which are the subject of the present statutory real action. They were his last residence. He left surviving him a widow, Eliza Clancy, who is the plaintiff in this suit. Mrs. Clancy was insane at and before the time of her husband's death, and she ever afterwards continued so. About two or three months after she became a widow she was placed in the state insane hospital, and when this case was tried in the court below she was still an uncured inmate of the hospital.

It is claimed for appellant that the property in controversy was and is the homestead of Mrs. Clancy, and that she could and can maintain this action on that title. The debt, for the payment of which it is claimed the land was sold, to be considered further on, is shown to have been reduced to judgment against intestate March 18, 1870. There is no proof when it was contracted. We must, then, for want of better or other proof, treat the date of the judgment as the day of the creation of the debt. Gordon v. McIlwain, 82 Ala 247, 2 South. Rep. 671. On March 18, 1870, the constitution of 1868, art. 14, § 2, fixed the maximum homestead in quantity at 80 acres; and that is the extent of Mrs. Clancy's rightful claim. The fact in this case contains 122 acres, and hence it was necessary to a valid homestead right that the widow should have made a selection, or that it should have been lawfully set apart for her. Neither was done. In fact, being insane, she was incapable of making a selection. Clark v. Spencer, 75 Ala. 49; Turnipseed v. Fitzpatrick, Id. 297; Dossey v. Pitman, 81 Ala. 381, 2 South. Rep. 443; Block v. George, 83 Ala. 178, 4 South. Rep. 836; 2 Scrib. Dower, 500. The present suit cannot be maintained on the asserted homestead right.

Much proof was made in the trial court to the effect that at the time of Mr. Clancy's death, and before, his wife did not live with him or stay at home, but that, being insane, she wandered about over the country, visiting among her children and other friends. It was also shown that, a few hours before her husband's death, friends of the family confined her in a small house on the premises, and that she remained there until her removal to the insane hospital. Under the view we take of this case, neither of these inquiries was material. The Code of 1886, § 1900, provides that "the widow may retain possession of the dwelling-house where her husband most usually resided next before his death, with the offices and buildings appurtenant thereto, and the plantation connected therewith, until her dower is assigned her, free from the payment of rent." It is thus seen that residence of the husband, not of the wife, at the time of his death is the controlling fact which entitles the widow to quarantine as an incidental right to dower. An additional reason is found in the fact that the residence of the husband, unless there has been a divorce or legalized separation, is the residence or domicile of the wife, whether she usually makes that her habitation or not. And her insanity does not bar her. It furnishes an additional reason for its allotment. 2 Scrib. Dower, 500, 501; Eslava v. Lepretre, 21 Ala. 504. Her removal to the insane hospital at Tuscaloosa is no obstruction to her claims- First, because the removal was without her consent; and, second, because she was without mental capacity to consent. Having the statutory right to the possession, she could either maintain or defend that possession by suit against any and all persons not showing a better title, and could sue and recover the rents and profits against any one coming into the possession of them without right. Benagh v. Turrentine, 60 Ala. 557; Inge v. Murphy, 14 Ala. 289; Doe v. Carrol, 16 Ala. 148; Doe v. Webb, 18 Ala. 810; McLaughlin v. Godwin, 23 Ala. 846; Oakley v. Oakley, 30 Ala. 131; Boynton v. Sawyer, 35 Ala. 497; Slatter v. Meek, Id. 538; Perrine v. Perrine, Id. 644.

Our statutes make provision for obtaining relinquishment of an insane wife's right of dower. Code 1886, §§ 1896-1898. The statutes, however, have reference to such relinquishment only when sale is made by the husband in his life-time. There is no provision for such relinquishment after the death of the husband. Nor is it pretended that any such attempt was made in this case.

Since the trial of this cause in the court below, and since the appeal was taken, Mrs. Eliza Clancy, the appellant, has died. Her death has been suggested, and a motion made to revive in the name of her heirs at law. The motion was resisted, and it, together with the cause, has been submitted for our decision. We have shown above that Mrs. Clancy's only title on which she could recover was her quarantine right. Quarantine is but an incident to dower, and neither of them is a heritable estate. They perish with the widow. Harrison v. Boyd, 36 Ala. 203; Slatter v Meek, 35 Ala. 528. It follows that when Mrs. Clancy died she left no transmissible estate, and her heirs at law can inherit nothing from her. As to any estate or right she is shown to have had, her descendants are not her legal successors. She left no estate, emanating from her, to be succeeded to. There can be no revivor in the name of her heirs at law. The present action, however, is what our statute denominates a "real action," but in fact it is a mixed action. It authorizes not only the recovery of lands, but of mesne profits or rents as well. Code 1886, §§ 2710, 2711. The complaint in the present case claims damages as well as the land. At the time the suit was brought, and up to the time of her death, Mrs. Clancy, as we have shown, had a prima facie right...