Warren County MsArchives Court.....Randolph, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Randolph, Appellant, v. Doss and Wife.

pages 205-215

The constitution and laws of this state confer upon the probate court general 
powers in cases of dower. These powers are not restricted by the relation of 
the parties to the suit. It is immaterial whether the contests for dower be 
between the widow and heir, or the widow and a stranger. The jurisdiction of 
the court is founded on the claim of the widow, and she will be decreed dower 
against all the world, if found entitled thereto.

Where a party contests the claim on the merits in the court below, he will not 
be permitted to insist on proof of the marriage in the appellate court.

The administrator will not be permitted to give parol evidence of the sale of 
the land of the estate by himself. The deed must be produced, or its absence 
accounted for.

Where an order for publication was made by the probate court, on the filing of 
a petition for dower, it will be presumed, in the absence of any evidence to 
the contrary, that the publication was made.

Proof of the seisin of the husband during coverture, is sufficient to entitle 
the widow to dower us against all the world, except those who may have the 
title paramount, for it is a well settled rule, that the seisin of the 
husband, even for a moment, will entitle the wife to dower against strangers, 
and those claiming under him, although his seisin be tortious.

Those who claim under the husband cannot set up an outstanding title.

After a deed has been read and admitted on the trial below, its authenticity 
cannot be called in question in the appellate court. The objection will be 
considered as waived.

APPEAL from the probate court of Warren county.

The appellees filed their petition in the probate court of Warren county, on 
the 26th day of March, 1838, praying an assignment of dower, in certain land 
and tenements particularly described therein. They state that Sylvia C., one 
of the petitioners, was the widow of a certain Hartwell Vick, deceased, who 
was seised and possessed of the lands described during his coverture with the 
said Sylvia C., and that since his decease, she has intermarried with William 
C. Doss, the appellee. At the time of filing the petition, an order of 
publication of notice was made, and the cause continued until June following, 
when the present appellant was made a defendant, for the purpose of contesting 
the right of dower to the two lots numbered 91 and 92, in Vicksburg. The right 
of the demandants to dower in the other lands, does not appear to have been 
contested.

The bill of exceptions, which was taken by Randolph, upon the trial in the 
court below, showed the evidence of offered by the parties to prove the seisin 
of Hartwell Vick, of the lots in question, during the coverture. The 
demandants produced the will of Hartwell Vick, in which there was a devise of 
the lots to his heirs, and also a covenant marked A, by which the heirs of the 
said Newit Vick, for certain considerations therein mentioned, bargained and 
sold all their interest in the same to Hartwell Vick. This contract was made 
in 1824. They also proved by Henry Morse, one of the devisees in the will of 
Newit Vick, and by a certain William Everett, that Hartwell Vick was in 
possession of the lots, for several years prior to his death. The appellant 
objected to the introduction of Morse as a witness.

The appellant offered to prove by John Lane, who was administrator, with the 
will annexed, of Newit Vick, that he, as such, had sold the lots before the 
date of the covenant before referred to; but the court upon objection refused 
the proof. There were also read some deeds, by which it appeared, that in 
1829, John Lane had sold the lots, and that they finally passed to the 
appellant.

Upon this proof, the court decreed dower on all the lands in the petition.

Harrison, for appellant.

The record presents many errors; a few of the principal ones only, will be 
noticed.

1. It does not appear from the record, that there had been any publication 
giving notice of the intended application for dower. Such publication is 
indispensable, because it is repairs by the statute, and is, in fact, the only 
kind of process which it seems to recognise upon such an application. And it 
is useless for me to refer the court to authorities, showing that every 
judgment, rendered without appearance of all concerned, is void, unless there 
be service of process either actual or constructive.

2. There is no proof before the court, showing that Sylvia C. was the widow of 
Hartwell Vick, deceased. For the bill of exceptions sets forth all the 
evidence in the case, and the fact, that she was the widow of Hartwell Vick; 
nowhere appears in proof. It is not enough that the petition should charge the 
fact as true, for being a material fact, and necessary to be alleged, there is 
equal necessity for its being proved.

3. There was no proof showing that Hartwell Vick was ever seised in fee of the 
premises during coverture, or at any other time. This court cannot infer, that 
such proof was made, especially when the bill of exceptions professes to give 
the whole of the evidence, and does not set forth any such proof.

Here then, are three fatal defects.

1. That there was no previous notice, such as is required by law.

2. That she was not the widow of Hartwell Vick.

3. That he was not seised during coverture.

The petitioners produced no evidence of title, except the covenant between 
Hartwell Vick and the heirs of Newit Vick. But this covenant was not, of 
itself, evidence of title, because there was no proof of its execution, and 
should have been excluded by the court.

A writing introduced collaterally, irnist appear to be a genuine document. 
This can be done only by the open acknowledgment of the obligors, or grantors, 
in open court, or by the testimony of witnesses proving the signature, or by 
the official certificate of the proper officer, whose duty it is, by law, to 
take the acknowledgments of the parties, and to certify the same for record. 
This document was not established in either one of these ways. In fact, no 
proof was introduced of its authenticity. Clearly therefore, the petitioners 
cannot successfully claim dower under it, especially as against strangers.

But, admitting this to be a genuine document, it still does not convey title 
to Hartwell Vick. The conveyance is in the alternative; it gives to him the 
lots, or the proceeds when sold. The election to take either, is not with him, 
but with the grantors, because they are discharged from all further liability 
on that account if they do either. They satisfy their covenant, if they convey 
the premises to him, and so they equally do, if they pay to him the proceeds 
of sale. It is manifest, therefore, that the election to do the one or the 
other, is with them, and not with him. Can it then be contended with any 
propriety, that the widow has dower in premises, to which the husband had no 
title beyond a mere possibility?

But suppose that title did pass to Hartwell Vick, by that covenant, it surely 
was not a perfect title to the entire lot, because the record shows the fact 
to be that all the heirs of Newit Vick did not sign it. He has a son and 
daughter both living, whose names are not to it; of course the right of these 
two children was not affected by that covenant; they still held, as they did 
before, no undivided joint interest in said lots. Yet, the court decreed dower 
to Sylvia C. Doss, in the entire lot, as though Hartwell Vick had been full 
owner of the entire fee therein; or, in other words, the court decreed to the 
widow of Hartwell Vick, dower, not only in his own estate, but in the estate 
of his brothers and sisters also.

But again, the covenant marked A, recognised the right of some person to sell 
said lots, and in the event of sale, the proceeds were to be paid to Hartwell 
Vick. This no doubt had reference to that provision in the will of Newit Vick, 
which authorised his executors to sell the town lots. The executors might have 
sold these very lots. For there is no proof to the contrary, and if sold, then 
the proceeds of sale only were coming to Hartwell Vick. It was therefore 
proper to ask John Lane, whether the said lots had been sold, and if so, by 
whom, and to whom. We have as much right to establish the fact of sale by 
parol, as we have to establish by parol, the identity of the land called for, 
with the land embraced in the survey. The court therefore erred, in rejecting 
that interrogatory.

Taylor and Tarpley, for the appellees.

1. The probate court has original jurisdiction of all cases relating to dower, 
expressly granted by the statute, and recognised by various decisions of this 
court, particularly the case of Bergen v. Doss and Wife, decided at the last 
term of this court. This proposition is too plain for argument.

The second assignment is rather too abstruse and metaphysical to be easily 
comprehended. If the court has jurisdiction in cases of dower, then it follows 
that it has the right to adjudicate upon the right of dower, and is embraced 
in the answer to the first proposition of the plaintiff. Nor can its right to 
adjudicate, given by statute, be in anywise affected by the proof. If the 
proof be insufflcient, the decision of the court is an adjudication upon the 
proof, and the proposition involves this difficulty. In all cases where this 
proof is defective, the court cannot decide, inasmuch as it cannot adjudicate 
upon the right where the proof is insufficient. If the proposition means any 
thing, it must mean what is more plainly stated in the third assignment of 
errors, to wit: That the court erred in deciding that the plaintiffs below 
should be endowed of lot No. 10, or any part of it. This assignment 
necessarily brings to view the whole of the facts of this case, in order to 
enable the court to determine whether the plaintiffs below sustained their 
claim to dower by sufficient proof. In order to entitle a party to recover in 
an action for dower, certain facts must be proved or admitted, marriage, 
seisin of the husband, and death of the husband, and these facts are to be 
proved like all others; first, by competent proof; and secondly, sufficient 
proof to satisfy the court of the facts alleged. The petitioners file their 
bill in which they state in substance, that Sylvia C., one of the 
complainants, intermarried with Hartwell Vick, who died seised of the land in 
controversy. Here two important links in the title are exhibited, both, 
susceptible of being proved by reputation, and both impliedly admitted by the 
party in the court below. The death of Hartwell Vick was not proved, and yet 
it was conceded because it was never denied that he was dead. To have thrown 
the petitioner upon proof of the marriage, could have been done only by plea, 
or by proof negativing it, when the defendant was in court, and to have been 
present and contesting the right of dower in the court below, without making 
this objection where the fact could so easily have been proved, is an 
admission of which he shall not be permitted to take advantage in this court. 
If we confine ourselves to the bill of exceptions, this fact does not appear 
to have constituted any ground of objection, but seems to have been admitted 
upon all sides as having been proved and clearly shown that the objection is 
an "afterthought" arising from an inspection of the records with an eye to its 
defects. But we rest this point upon the well established rule of practice, 
that where a material fact is either directly or indirectly admitted in the 
court below, or passes without objection in the trial of a case in the court 
below, it will not be made the ground of a reversal in this court, as it would 
take the other party by surprise. And hence we contend that the marriage of 
the petitioner Sylvia, and the death of her husband Hartwell, were 
sufficiently proved or admitted in the court below. In any event, this court 
will look with great indulgence upon the proceedings of inferior tribunals, 
where the process is of a summary character, and intended by the legislature 
to enable parties to transact their own business, without the assistance of 
counsel. The next fact to establish, is the seisin of Hartwell Vick during the 
coverture. This fact was sufficiently proved, both by Morse and Everett; upon 
what ground the plaintiff objected to the competency of Morse as a witness, is 
not shown either in the bill of exceptions or the argument of counsel. So far 
as appears from the record, there was nothing that rendered him incompetent; 
so far as he was affected by his marriage with one of the heirs of Newit Vick, 
his testimony was adverse to his interest if he had any, but we are not able 
to discover any interest whatever, that Morse had in the event of the suit; so 
far, then, we consider him a competent witness to prove the possession of 
Hartwell Vick. In addition to this, Everett proved that "Vick was in 
possession for several years prior to his death." To have proved the peaceable 
and undisturbed possession, creates the presumption that the possession was 
continued unless the contrary be shown; but the testimony of Everett forever 
puts this matter at rest. If his language means any thing, it is that Vick was 
in possession several years next preceding his death, and up to the time of 
his death; so that if Morse’s testimony should even be excluded upon the 
ground of incompetency here is direct mid positive proof of seisin by a 
witness not objected to; and this, as we conceive, answers the fourth 
assignment of errors. Were the parties properly before the Court? The 
plaintiff in his fifth assignment of errors, contends that there was no 
sufficient publication of the intended application for dower. What is the 
object of the statute requiring publication to be made? In order that the 
parties in interest should have an opportunity of appearing and defending. But 
suppose the party has notice, and does actually appear and contest the right 
of the petitioner, does he not have all the benefits that he could have 
derived from a publication? The law also requires that process shall be served 
upon a defendant before he shall be required to plead at common law, but if he 
voluntarily enters an appearance and pleads to the action, this court will not 
reverse because the process was not executed. v. Gully and Blakey, decided at 
the last term of this court. In this case, the plaintiff actually appeared, 
and contested the petitioner’s right in every form that the ingenuity of his 
counsel could devise; and his complaint of a want of publication comes with 
rather a bad grace from such lips.

To the sixth assignment of errors, the defendants reply that the title to the 
property derived by Hartwell Vick, under the conveyance from Henry Morse and 
others, coupled with the possession, constituted a good and valid title to the 
property specified in the conveyance, as against all other persons, than the 
two children of Newit Vick who did not subscribe to the instrument, and as the 
plaintiff in error does not claim by, through or under them, he has no right 
to set up this objection. If the law carefully guards the interest of the 
widow, by endowing her even of trust estates, and is liberal in all cases in 
granting its protection to these objects of misfortune and sorrow, who by 
their industry have helped to build up the estates of their husbands, and have 
too often lived to see it swept from them by the rapacity or creditors and 
heirs, and have been thrown friendliness upon the charity of the world, this 
court will not aid in producing these unfortunate results, at the request of a 
stranger, in opposition to a legal conveyance, accompanied by interrupted 
possession for many years. If the court below did sustain the claim to dower, 
in opposition to the interests of two of the heirs of Newit Vick, deceased, we 
contend that those heirs received a valid consideration in the release made by 
Hartwell Vick, as the consideration of the grant to him which a court of 
chancery would enforce; that their acquiescence creates the presumption of 
their concurrence, and at all events, that they alone or some one claiming 
through them, can set up this defence to the deed. The conveyance made to 
Hartwell Vick, is certain and direct. It reserves to the grantors no power of 
sale, and as there appeared to have been some uncertainty as to whether the 
lots had been sold or not, they grant to him the money that might be at that 
time due by the purchasers, or which might afterwards become due, not from a 
sale to be subsequently made, for they had parted with the power of making 
such sale, not from a sale to be made by the administrator with the will 
annexed, for this court has determined, in the "Vicksburg Common Cases," that 
he had no such power; then the simple meaning was, that he should have the 
money which might subsequently be due for any sale which had already been 
made. To give the instrument a different construction, would involve this 
legal absurdity, that a party sells his land for a valuable considertion, 
accompanied by a conveyance in fee, and yet retains the power to sell it again 
to some other person. In the construction of the instrument, we must arrive as 
nearly as possible at the intention of the parties, and it seems clear that 
there was, at the time of said contract, some doubt in reference to the sale 
of this property, and in order to indemnify the grantee in the event such sale 
had been made, he was authorised to receive the process as the notes might 
fall due, but the land not having been sold, the absolute title was at once 
vested in the grantee. Such was the opinion of this court in the case of 
Bergen v. Doss and Wife, decided at the last term,: and by that decision, the 
question as to the extent of the estate which passed by the covenarnt (A) has 
been recognised as sufficient to authorise the court to assign dower to the 
widow of Doss in this property. There was no evidence before the court to show 
that the property had been sold; and the court decided correctly in refusing 
to permit John Lane to answer the questions propounded by plaintiff. That he, 
as executor, had no right to sell, has been solemnly determined by this court; 
but if the right had existed anywhere except in Hartwell Vick, it could only 
have been shown by the deed, as the highest and best evidence, to wit, the 
production of the deed itself a sale made in any other way would have been 
contrary to the statute of frauds, and utterly void.

To the 7th assignment of error, the defendants reply that it is true the deed 
was not proved by a subscribing witness, or by record evidence, but the same 
was read without objection; and if the plaintiff thus permitted it to be read 
upon the trial without objection, it amounts to an admission that it was a 
genuine instrument, and he is now estopped from interposing the objection as a 
ground of reversal. This rule of practice is admitted every where.

As to the 8th assignment, it is clear that Morse had no interest in the event 
of the suit, that if he had any contingent interest, his testimony was adverse 
to that interest and he was not called upon to invalidate the deed, and it is 
not perceived upon what ground he is sought to be excluded. But admitting that 
he was an incompetent witness, still the court will not reverse in consequence 
of his having been improperly admitted, because the same facts were proved by 
a witness who was sworn and interrogated without objection, and who is 
admitted by all to have been competent.

There is then no ground for a reversal of the opinion of the court below, 
inasmuch as the record shows all the facts necessary to support the claim of 
the petitioners, were either proved or admitted; and if the interest of 
Hartwell Vick was one of which his wife could be endowed, and the court had 
jurisdiction, then the decree was proper and should be affirmed.

Mr. Justice TROTTER delivered the opinion of the court.

There are some preliminary objections urged in this case which we will notice 
before proceeding to consider the principal errors assigned. The first of 
these is the want of jurisdiction in the court below to adjudicate this cause. 
To this it may be answered, that the constitution as well as the 1aws of this 
state, confer, by express enactment, general powers in cases of dower upon the 
probate courts of this state. These powers are not restricted by the relation 
of the parties to the suit, and it is totally immaterial whether the contest 
for dower be between the widow and heir, or the widow and strangers. The 
jurisdiction of the court is founded on the claim of the widow, and it is 
immaterial whether her right be contested by a stranger, or the heir; she will 
be decreed dower against all the world if found entitled. It is also objected, 
that there was no proof that Sylvia C. Doss was the widow of Hartwell Vick. 
The whole of the proceedings, however, are based upon that fact. It was one of 
the first steps in the proof of the demandant's title, and the controversy 
proceeded on the assumed proof of the fact. Randolph appeared and contested 
her right as widow on the merits, and it is not to be endured that he shall, 
on appeal, turn her round upon such objection taken here for the first time. 
It was a fact, no doubt notorious in the county where this trial was had, and 
if the formal proof had been then demanded, it could very readily have been 
made. He shall not be permitted to surprise them now with it, when there is no 
opportunity to make the proof. It is also assigned for error, that the court 
permitted Henry Morse to testify. His interest, if he had any, was against the 
claim of demandants. But be this as it may, the same facts proved by him are 
also established by the evidence of Wm. Everett, who was unassailable. The 
exception which was taken to the refusal of the court to hear the answer of 
Lane to the question, whether he had sold the lots claimed by Randolph, is not 
sustainable. The deed ought to have been produced or accounted for; but the 
deeds made by him as they appear upon the record were executed in 1829, about 
five years after the transfer to Hartwell Vick. It is objected also, that 
there was no notice of the application for dower as required by law; but the 
record shows that an order of publication was made at the filing of the 
petition, and the cause continued down on the roll until June following. We 
feel bound by established rules, to infer that the notice was published in 
pursuance of the order, and that the proceedings of the court below were 
regular in the absence of any evidence to the contrary upon the record. But 
this objection cannot be heard from the appellant who appeared and defended 
the claim of the demandants upon the merits.

The only remaining question and the principal one in this cause, as it is 
presented by the other assignment of errors, is, whether the proof establishes 
the appellee’s right of dower in the two lots numbered 91 and 92? The proof is 
full and complete as to the possession of Hartwell Vick, during his coverture 
with Sylvia C. Doss for several years before his death. This is sufficient to 
entitle the widow to dower as against all the world except those who may have 
the paramount title. For it is a well—settled rule, that the seisin of the 
husband even for a moment will entitle the wife to dower against strangers and 
those claiming under him, even though his seisin be tortious. A tenant at will 
made a feoffment of the land and died; and the feoffee was estopped from 
denying the right of the wife of the feoffor to dower. And this principle is 
recognised in all the cases on this subject, both in England and this country. 
But his title is complete under the covenant which transferred the title of 
the other heirs of Newit Vick to him. It is true that Newit and Emily Vick, 
two of the heirs, did not unite in this conveyance. But it does not lie with 
the appellant to urge the outstanding title of these heirs. They cannot be 
prejudiced by any decree in this cause, and it will be time enough to consider 
the extant and character of their claim when it is made. It is not competent 
for a mere stranger to interpose it, and to do that for them which they may 
never think it proper to do for themselves. The objection taken to the 
introduction of the deed to Hartwell Vick as evidence in the court below, on 
the ground that no proof was offered of its introduction, comes too late. It 
was read without objection, and we will not suffer the question to be sprung 
upon the appellees in this court, when there is no opportunity to meet it. If, 
when the deed was offered below, formal proof of its authenticity had been 
demanded, it must have been produced, and if not the court would have been 
bound to reject it. It was competent, however, for the appellant to waive it, 
and by not objecting there he will be held here to have done so.

The question in regard to the rights of the appellees under the covenant A, 
were fully decided upon in this court at the last January term thereof in the 
case of Peter J. Bergen v. Doss and Wife. In that case the appellees were held 
to be entitled to dower in other lands conveyed by the same deed; and we are 
satisfied of the correctness of the determination.

Let the decree of the court below be affirmed with costs to the appellees.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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