
    Hamilton v. Johnson et al.
    
    Practice. — Where a hill of exceptions, after setting out certain evidence, contains the words: “ Which was all the evidence given in the cause,” such words are not sufficient to exclude the presumption of other evidence.
    Dower. — The reader is referred to the opinion at length for an interesting question concerning the right to dower.
    APPEAL from the Wayne Circuit Court.
   Perkins, J.

On the 28th of August, 1840, Enoch Railsbaclc sold the equity of redemption of a lot of ground to H. S. Hamilton, executing to the latter a title-bond in six months from date. Hamilton paid for the equity of redemption, and an agreement for the removal of the incumbrance in the shape of a mortgage existing on the lot was made. On the 1st day of May, 1841, said Hugh S. Hamilton executed to Benjamin Hamilton a deed of mortgage, with full covenants of warranty of legal title, of the lot of land described in the title-bond, to secure the payment of 500 dollars, in one year from date. He did not assign the title-bond, nor did his wife join in the mortgage to Benjamin Hamilton.

On the 24th day of May, 1841, Railsbaclc executed to Hugh 8, Hamilton a deed in fee for the lot in question, in consideration of 1100 dollars which had been previously paid for the equity of redemption.

Hugh S. Hamilton did not pay off to Benjamin the 500 dollar mortgage, -and Benjamin, after the 1st of May, 1862, as we must presume, foreclosed the mortgage by a suit against Hugh alone.

The property was sold on th.e judgment of foreclosure, and Benjamin became the purchaser, and subsequently sold and conveyed the same to the appellees.

Said Hugh 8. Hamilton was married to his wife, Caroline, prior to 1841, and he died in 1849, leaving said Caroline, who still lives, surviving him; and who, in 1860, having previously demanded her dower, commenced this suit for its recovery.

The Court below held that Caroline, the wife of Hugh S. Hamilton, was not' entitled to dower.

The bill of exceptions setting out evidence concludes thus: Which was all the evidence given- in the cause.”

The words required by the 30th rule are :. “ This was all the evidence given in the cause.”

Two questions are made and argued, viz:

1. Is Caroline Hamilton entitled to dower in the lot mentioned on the facts above set forth ?

2. Can the Court regard the bill of exceptions as containing all the facts or evidence in the cause ?

On the first question it may be observed that dower is a favorite of the common law. We have also been able to find one authority which seems much in point.

In Winn, &c. v. Elliott’s Widow, &., Chief Justice Edwards states the point to be decided thus:

“ It is said that Elliott, having no title at law when he sold, but only an equitable interest, was, from the time of the sale, but a trustee for the Winns, his vendees; that 'when he acquired the legal title, it was only in trust for them; and that the wife shall not be endowed of a trust estate, created previous to the statute of Virginia, which took effect in January, 1787.”

He concludes the opinion of the Court in these words :

“ In this case the husband had, during the marriage, a beneficial interest; acquired the legal title ; and died seized at law, whereby the wife’s right to dower became complete at law. To oust her claim in equity, the appellants exhibited an equity against the husband, derived during the coverture, and from the husband. We think the wife’s claim an equitable and moral right, commencing upon the marriage, to be endowed of such estate as the husband shall have a beneficial interest in, and whereof he may be seized, at any time during the coverture, of such an estate as her issue of marriage might by possibility inherit. To defeat her claim at law, thus perfected, the appellants do not show a title derived paramount to the husband’s, but under him; and their equity does not commence previous to the wife’s, but subsequent thereto. As to the wife’s right to be endowed of an inchoate estate of the husband, not reduced to a legal one during coverture, but existing only in equity, we give no opinion; the case does not require it. The wife’s claim, in the present instance, is complete in equity and at law.” Hardin’s Rep. (Ky.) p. 482.

J. B. § J. F. Julian, for the appellant.

W. A. Bielde and. G. II. Burchenal, for the appellees.

On the second point the Court is of opinion that the record can not be regarded as containing the evidence. The rule declares that the words prescribed by it shall be technical and indispensable. The rule was adopted to ensure certainty, and thus, upon this point, at all events, as should be the case upon all, exact equality of decision as to all members of the profession.

In matters of practice, it is often of less consequence what the rule is, than that it should be certain and known.

We think' it the better course for the Court to adhere strictly to the rule. Thus acting, we hold that the record does not purport to contain all the evidence; and, hence, we must presume there was evidence justifying the judgment of the Court below.  