
    Steele v. Brown; Mastin v. Brown.
    
      Bills in Equity T>y Widow, for Assignment of Bower.
    
    1. Widow’s right to dower ; proof of husband’s siezin during coverture. Undena bill by the widow to obtain an assignment of dower in lands of which the husband is alleged to have been seized and possessed during coverture, if the seizin of the husband is denied, it must be affirmatively proved by the demandant; and although strict proof is not required, where the defendant is in possession under the husband, or claims under him through mesne conveyances, yet it is not sufficient to prove a purchase by the husband at administrator’s sale, without proof of title in the decedent, and possession under the purchase, or that the defendant held under the husband, mediately or immediately.
    2. Allotment of dower by metes and bounds ; rents and profits. — When dower is allotted’to the widow by metes and bounds, rents and profits should be awarded from the filing of the bill, and not from the death of the husband; nor should the allotment be made by metes and bounds, when the lands were sold under execution against the husband, and valuable improvements have since been, erected on them.
    Appeals from tlie Chancery Court of Madison.
    Heard before -the Hon. N. S. Graiiam.
    The bills in these two cases were each filed on 17th July, 1880, by Mrs. Elizabeth Brown, as the widow of William Brown, deceased, against James W. Steele and Celia Mastín, respectively ; and sought an assignment of dower in two lots, of which tl'ie defendants were respectively in possession, and of which the said William Brown was alleged to have been seized and possessed during his coverture with the complainant, with rents, or mesne profits. It was proved that the complainant and said William Brown were married, in Tennessee, in 1836, and soon after removed to Madison- county, Alabama, where they resided until the death of said William Brown, which occurred in September, 1877; that the lots in which dower was claimed, each containing about a half-acre, more or less, were parts of a larger lot containing about two and a half acres, which was sold and conveyed to said Brown, by John W. Eldridge, as the administrator of the estate of B. C. Bathbone, deceased, by deed dated the 12th March, 1846; and $iat said lot was sold, under execution at law against said William Brown, some time prior to the year 1856, the precise date not being shown. Each of the defendants filed an answer to the bill, requiring proof of its allegations, and denying seizin of the lots by the said William Brown; each alleged that, since the sale of the entire premises under execution against him, valuable improvements had been erected on each of the lots; and each claiméd title under mesne conveyances from Wilson- & Her-stein, who entered into possession in June, 1867, under a conveyance from Joseph P. Doyle and wife. On final hearing, on pleadings and proof, the chancellor held the complainant entitled to relief in each case, and appointed commissioners to allot her dower by metes and bounds in each lot;"and also held her entitled to one-third of the rents from the death of her husband, and ordered a reference to the register to ascertain the amount. The chancellor’s decree, and each part thereof, are now assigned as error.
    Cabaniss & Ward, for the appellants.
    Walker & Shelby, coni/ra.
    
   STONE, J.

'These two cases are substantially identical in law and in fact, and we propose to decide them together.

To obtain dower, it was necessary for the complainant to allege and prove her marriage, legal or complete equitable seizin -of the husband during the coverture, and the death of the husband. The first and third of these propositions are proved. Is the proof of seizin sufficient? The averment of seizin, or title, being put in issue, it became necessary to prove it. After the answers of Mrs. Brown to the fifth and sixth interrogatories were suppressed, the proof - of this material averment was insufficient. True, in Scribner on Dower, vol. 2, 199, it is said: “It is well settled, that the demandant in dower is not required to make strict proof of her husband’s title, under the issue of non seisin.” But he explains what he means by making strict proof. He says: “ Where the defendant is in possession under a conveyance from the husband, or by virtue of a title derived through mesne conveyances from him, proof of this fact is sufficient to establish, as against the defendant, the seizin of the husband. So, also, proof that the husband of the demandant was in possession during the coverture, claiming title, or that he was in receipt of rents from the person in possession, is prima faeie suffi■cient evidence of seizin, to warrant a recovery against one whose possession commenced subsequently thereto; and unless impeached or explained, such possession is conclusive evidence of title.” Now, conceding that Mrs. Brown, the demandant, is not required “to make strict proof of her husband’s title,” the proof in the present record falls véry far short of each of the illustrations which this author gives. It is not shown that “ the defendant is in possession under a conveyance from the husband, or by virtue of a title derived through mesne conveyances from him.” There is no .attempt to trace a chain of title from the purchaser at sheriff’s sale, down to the defendant. Nor is there proof that Mr. Brown, husband of the demandant, “was in possession during the coverture, claiming title, or that he was in receipt of rents from the person in possession.” And, we may add, there is no proof that Ratlibone, whose title Brown purchased, had any title to the lands, or had ever been in possession, claiming title. Either of these lines of proof, supplementing the proof found in the record, would have made a prima fade case for the demandant. And, we may add, such proof would make optima facie case that the title had been in Mr. Brown as alleged, in any suit affecting the title to the property. In a suit by A against B, it is enough for A to prove that he and B trace title to the same source, and that A’s claim is paramount or superior to that of B. Not necessary in that case to prove title in the common source, under whom each litigant claims.—Pollard v. Cocke, 19 Ala. 188. So, prior possession, claiming title, or exercising acts of ownership, is good against any one not showing a paramount title, unless barred or estopped under some other principle of law.—1 Brick. Dig. 627, §§ 39, 40; Ib. 628, § 54; Anderson v. Melear, 56 Ala. 621. The proof of seizin in these cases falls' short of each of these requirements.

Dower being allotted by metes and bounds, there was also error in awarding the demandant rents or profits from the death of the husband. It should have been compxxted from the filing-of the bill. Nor was this a case for allotment by metes and bounds.—Beavers v. Smith, 11 Ala. 20; Slatter v. Meek, 35 Ala. 528. Dower being demandable, in these cases, of the value of the premises, irrespective of improvements placed there by the purchasers, they fall within the principles declared in Wood v. Morgan, 56 Ala. 497.

Reversed and remanded.  