See APPEAL 4. REFORMATION.
1. Proceedings in rem void where there is no jurisdiction of the subject matter.
A decree rendered in a proceeding in Alabama, by constructive service
against parties in this State, for the confirmation of a sale of lands situate
in this State, is not binding as a proceeding in rem. Bozeman et al. v.
Browning et al.
Upon the dismissal of a complaint in equity to cancel a deed executed by
the plaintiff, and alleged to cast a cloud on his title, on the ground that
the deed appears upon its face to be inoperative, the decree should, where
the deed contains peculiar provisions and recitals, set out the ground of
the dismissal. Pillow v. Wade and Wife et al.
See PROBATE COURT, 2, 3. REFORMATION,
An erroneous description of land by numbers, will not controll other des-
criptive particulars, which indicate the land with certainty. Montgomery
and Wife v. Johnson.
2. Relinquishment of dower.
A deed executed by the husband of a tenant for life, in which the latter
joins in a relinquishment of dower merely, does not convey her estate.
Magness v. Arnold.
Where the certificate of acknowledgment omits the name of the grantor,
but shows that the party who appeared before the officer was the grantor,
and refers to him by name in the wife's acknowledgment, it is sufficient.
Id.
4. Statutory covenants.
The words grant, bargain and sell in a deed of conveyance, when not lim-
ited by express words in the deed, must, under the statute, be construed
as an express covenant against incumbrances done or suffered by the
grantor. Brodie and King v. Watkins and Wife.
To secure a debt. Legal effect of, etc.
A deed of trust executed for the purpose of securing a debt, and to be void
upon payment of the debt, and containing a power of sale upon default,
is, in legal effect, a mortgage. The grantor retains an equity of redemp-
tion, which is subject to seizure and sale under execution as other equita-
ble estates are under the statute. But where the grantor parts with his
title absolutely, conveying it to the trustee to sell for the purpose of rais-
ing a fund to pay debts, it is properly a deed of trust, and no interest
legal or equitable, remains in the grantor. (For ull review of the
former decisions of this court. see the opinion). Turner v. Watkins et al.
See CORPORATION. PLEADING, 7, 9, 13, 14, 15. PRACTICE 3.
Where depositions are taken before a justice of the peace in another State,
a certificate of authentication of his official character should accompany
the deposition. Jenkins et al. v. Tobin et al.
DESCENT AND DISTRIBUTION.
See PARTIES, 6. PLEADING, 19.
Where one dies without issue, seized of a new acquisition, the mother be-
ing the sole surviving parent, takes an estate for life, with remainder.
first to the line of the paternal ancestor in postponement of the maternal
line, until the former becomes extinct, and then to the maternal line.
Magness v. Arnold.
103
2. PROCEEDING TO SUBJECT ASSETS DESCENDED: Nature, jurisdiction, etc.
A suit to subject assets descended to the heir to the payment of a debt of
the ancestor, is a proceeding in rem, and must be prosecuted in the juris-
diction in which the property is situated, by equitable proceedings. Wil-
liams et al. v. Ewing and Fanning.
3. HEIR: Personal liability of.
The heir to whom assets have descended, is not personally liable for the
debts of the ancestor, beyond the value of the estate received by him.
4. Vesting of estate in minor, etc.
Under the provisions of sec. 7, Gantt's Digest, if a woman dies, leaving a
minor child, and an estate under the value of $300, the estate will vest in
the child, who may be substituted as plaintiff in a suit instituted by the
deceased parent. If the motion to substitute is made within one year
after the death, the opposite party is not entitled to notice. Smith et al.
v. Allen.
268
1. EVIDENCE: Burden of proof under issue of devisavit vel non.
Under the issue of devisavit vel non, where the inquiry is whether the testa-
tor was of sound and disposing mind, and free from undue influence, at
the time of executing the will, the burden of proof is on the plaintiff.
Jenkins et al. v. Tobin et al.
306
2. Instruction, evidence, etc.
An instruction to the following effect held correct under an issue of devisa-
vit vel non: Evidence that the testator was weak and imbecile from age
and disease to the extent that he was incapable of attending to his ordi-
nary business, and in that condition was induced to abandon attorneys
previously employed by him; that the will was written by the attorney
of the principal devisee, and witnessed by said attorney, and the wife'
and a relative of said devisee, when other disinterested parties wer near
and could have been conven'ently called to witness it, may be considered
by the jury in determining whether the will was obtained by undue in-
fluence or not.
Id.
An instruction under an issue of devisavit vel non, which coupled together a
number of circumstances having a bearing on the capacity of the testator
at the time of making the will, and announced that they were all strong
circumstances to disprove capacity, was erroneous; the circumstances be-
ing admitted, their weight should have been left to the jury.
(For various circumstances admissible under the issue of devisavit vel non,
as bearing upon the capacity and freedom of will of a testator, see the
opinion.)
Id.
1. Setting aside, notice, etc.
If the donee of land forfeited to the State for taxes, fail to pay for the im-
provements thereon, as provided by sec. 3905, Gantt's Digest, he is not
entitled to notice of an application by the owner of the improvement to
set aside the donation and purchase the land; but the deed of the auditor
to the owner of the improvement will not be conclusive against the
donee. Surginer, adm'r, v. Paddock et al.
528
2. Donee required to pay for improvements.
The law requires the donee from the State to pay for improvements, whether
they were made before or after the forfeiture of the land.
Id.
If the owner of an improvement on land forfeited to the State for taxes,
and subsequently donated, dies, his administrator is entitled to be paid
by the donee for the improvements; and, upon failure of the donee to
pay for the saine, may purchase the land in his representative capacity
for the benefit of the creditors and heirs.
Id.
1. TRANSFER BEFORE ASSIGNMENT, EVIDENCE, ETC.
The widow cannot transfer her estate by dower in the land of her deceased
husband before the same has been set apart to her; and a deed executed
by her before assignment of dower, is not admissible in evidence to es-
tablish title in her vendee. Jacks v. Dyer et al.
334
2. Out of land in the possession of an administrator.
The right of dower does not attach in favor of the wife of an heir at law, so
long as the land is in the possession and control of the administrator,
and there are outstanding debts. Tate and Wife v. Jay et al.
3. Nature of the estate, etc.
Dower is a freehold estate, growing out of marriage, seizin, and the death
of the husband. It obtains by way of lien created by, and at the time, of
marriage. When once fixed, it is paramount to the rights of creditors
and purchasers; and no act of the husband, without the wife's consent,
can divest her of it.
Dower will not be carved out of an estate held in joint tenaney; seizin in
severalty is requisite to support it. The alienation which severs a joint
tenancy cuts off dower, because the same act of the husband by which
the joint estate is severed, operates to pass the fee of his moiety to his
grantee. Cockrill v. Armstrong.
Where the trustee has an interest in the subject of the trust, whether cre-
ated by deed or otherwise, the wife is entitled to dower to the extent of
such interest, if it can be decreed to her without interfering with the trust
estate, or defeating the purpose of the trust.
6. Out of land in the hands of an executor.
While land is in the custody of an executor, who is also a devisee under the
will, it is not subject to dower in favor of the wife of such devisee. Id.
Upon the sale, by executors, of the real estate of the testator, for the pay-
ment of debts of the estate, the purchaser takes the title, free from dower
in favor of the wife of a devisee.
S. Out of incumbered estate; contribution, etc.
Where the estate is subject to paramount incumbrances, the widow will be
endowed out of the equity of redemption. And where the purchaser
thereof has expended money in removing the incumbrances, she will be
required to refund it, with interest, before she can assert her right to
dower.
9. Release of to husband void.
A married woman cannot release dower in favor of her husband; she can
only release it by joining with the husband in a deed to a third person.
Pillow v. Wade and Wife et al.
See RAILROAD COMPANIES, 5. TAXATION, 3, 8, 9. TENANTS IN COMMON,
Title requisite to maintain the action.
Under our statutes ejectment may be maintained in all cases where the
plaintiff is legally entitled to the possession of the premises. The receipt
of a Receiver of the United States Land Office for the fees and commis-
sions paid by an applicant for a homestead, under the provisions of the
homestead act of Congress, will entitle the holder to maintain the action.
Gaither et al. v. Lawson.
2. TAX SALE: Tender of payments and improvements by purchaser.
Where public lands, not subject to taxation, are sold for taxes, and after-
ward entered, the person entering the land is not required to tender the
purchaser at tax sale the money paid, and value of improvements made
by him, before he can maintain an action for the land.
3. POSSESSION, EVIDENCE, ETC.
In ejectment, proof of posses-ion, under claim of title by the plaintiff's
ancestor, is sufficient to entitle plaintiff to recover, unless the defendant
shows a better title. Jacks v. Dyer, et al.
Upon a recovery in ejectment, the plaintiff is entitled to judgment for rents
and profits during the time the defendant was in possession.
Id.
Under the provisions of the act of March 5th, 1875, regulating the practice
in actions of ejectment, it is not necessary for the parties to copy their
deeds in the pleadings; it is sufficient to state the substance of the deeds
relied on, and file copies as exhibits. Surginer, adm'r, v. Paddock et al.
6. Title requisite to maintain.
The purchaser of lands from the United States, who obtains a patent cer-
tificate, does not acquire the legal title; but he may, under our statute,
n'aintain ejectment thereon.
See PAYMENT. PLEADING, 2. RAILROAD AID BONDS.
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