majority">DARGAN, J.

At common law, a widow was entitled to dower in all the lands of which her husband was seized at any time during the coverture; but if the husband had not the legal title, but was only entitled to the use, his widow, after his death, could not be endowed of this use. By our statute, however, it is provided, that “where any person to whose use, or in trust for whose benefit, another is, or shall be seized of lands, tenements,, or hereditaments, hath, or shall have such an inheritance in the use, or trust, as that, if it had been a legal right, the husband or wife of such person would thereof have been entitled to curtesy, or dower, such, husband, or wife, shall have, and hold, and may, by proper remedy recover, curtesy, or dower, in such lands, tenements, or hereditaments.” Clay’s Dig. 157.

Under this statute, if the legal title be held by one for the use of, or in trust for .the husband, the widow shall be endowed of the land, in the same manner as if the husband had the legal estate. The only question, therefore, is, for whom, and for what purpose, did the bank hold the legal title. to the premises sought to be charged with dower ? Did the bank at any time hold the legal title for the use of, or in trust for General Crabb ? The answer, to my mind, is plain : the bank was the owner in fee; the land was sold according to the provisions of law, and the legal title was held by the bank, not for the use of General Crabb, nor in trust for him, but for the purpose of securing the payment of the purchase money, and so continued to hold it, until the death of the. complainant’s husband. How, then, shall she be entitled to dower? By the common law she cannot, for the legal title never vested in her husband; and she can only claim dower under the statute, by showing, that the bank held the legal title for the use of, or in trust for her husband. But the bill on its face, shows, that one half of the purchase money was unpaid, at the time of General Crabb’s death. The bank, therefore, held the legal title, to secure this portion of the purchase money, and not for the benefit of the purchaser. I should therefore say, without reference to any authorities, *848that relying on the plain language of the statute, the complainant is not entitled to dower in the lands described in the bill, because her husband was never seized of the legal title, nor did any one ever hold it for his use. It is true, that if the entire purchase money had been paid by the husband, we should hold the complainant would have been entitled to dower; for it could not then have been said, that the bank held the legal title to secure the purchase money; for that being paid, the title could not have been held for that purpose, and in equity the bank would have been considered as holding the legal title, in trust for the purchaser.

■ But we are not left alone, to the plain import of the words of the statute, for it has received a uniform construction from this court, that is conclusive of the subject. Somerville v. Gillespie, 3 Stew. & Por. 347; Lewis v. Moorman, 7 Porter, 522; Rogers v. Rawlings, 8 Porter, 326; Edmondson v. Montague, 14 Ala. 371. All these cases hold, that to entitle the widow to dower, the equity of the husband must have been perfect, or complete, that is, he must have had the equitable right to demand the legal title of him, who held it for his use. It was said, in the case of Lewis v. Moorman, that what would be the right of the widow, when the husband left land on which a sum of money was due, and which the executor was bound to pay, was a question of grave importance. It may be in one aspect, that is, whether the heir’s share of the personalty, shall not be charged with the payment of this sum, as he receives the entire benefit of the land. But certainly it is a plain question, when we look to the statute, and consider the right of dower as regulated by the rules of the common law. We must find that the husband had the legal title, or that the legal title was in another for his use, or we must refuse dower. The hardship of this construction of our statute, has been pressed on us with much force. Wo can only answer, that the statute was intended to modify some of the hardships of the common law ; if it has not gone far enough, the legislature alone can extend its provisions.

There is no error in the decree, and it must be affirmed.

Citation profile

Relationships

How this case has been treated — in progress