Neal v. Mcmullian

• Decision Date: 03 October 1929
• Citation: 98 Fla. 549,124 So. 29
• Parties: NEAL et al. v. McMULLIAN.
• Court: Florida Supreme Court

124 So. 29

98 Fla. 549

NEAL et al. v. McMULLIAN.

Florida Supreme Court, Division B.

October 3, 1929

Suit by Mrs. Mallie Neal, joined by her husband, S. H. Neal, against A. J. McMullian. From an order sustaining in part a demurrer to the bill, complainants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Wife's inchoate right of dower does not authorize her during husband's life to enjoin use of property under lease made by husband (Comp. Gen. Laws 1927, § 5493). Inchoate right of dower in wife does not, under Comp. Gen. Laws 1927, § 5493 vest in her such an estate as will during lifetime of husband give her power or authority to enjoin use of property which is being enjoyed under and by virtue of lease and delivery of possession made by husband.

Appeal from Circuit Court, Jackson County; Amos Lewis, Judge.

COUNSEL

Millican & Mayhall, of Marianna, for appellants.

Carter Solomon, Welch & Pierce, of Marianna, for appellee.

OPINION

BUFORD, J.

The complainant exhibited her bill in chancery to enjoin the use of certain lands by the defendant in the operation of a turpentine farm. She based her right to injunction upon a claim of fee-simple title to a part of the lands and her right of dower in other lands, the fee-simple title to which was vested in her husband.

It was alleged that a lease had been made by the husband to one Melvin for turpentine purposes of all of the lands described in the bill of complaint, and that he had delivered possession of the lands to Melvin; that Melvin had gone into possession of the lands and afterwards assigned his leases rights, and privileges, and delivered possession of the lands to the defendant.

A demurrer was interposed to the bill of complaint. The chancellor sustained the demurrer to the bill in so far as those lands the title to which was alleged to have been in the husband, S. H. Neal, and overruled the demurrer to the bill in so far as it applied to those lands the fee-simple title to which was alleged to have been in Mrs. Mallie Neal. From this order, appeal was taken. The complainant bases her right to injunction as to the lands the title to which was in S. H. Neal at the time the lease was made solely upon her right of dower. In Randall v. Kreiger, 23 Wall. 137 147, 23 L.Ed. 124, text 126, the Supreme Court of the United States, defining the right of dower, say:

'Dower by the common law was of three kinds: Ad ostium ecclesiae, ex assensu patris, and that which in the absence of the others the law prescribed. The two former were founded in contract. The latter was the creature of the law. Dower ad ostium ecclesiae and ex assensu patris were abolished in England by a statute of 3 and 4 William IV, c. 105. The dower given by law is the only kind which has since existed in England, and it is believed to be the only kind which ever obtained in this country.

'During the life of the husband the right is a mere expectancy or possibility. In that condition of things, the law making power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive, before the death of the ancestor. Until that event occurs the law of descent and distribution may be molded according to the will of the Legislature.'

The statute creating the right of dower in lands in this state is ...