
    Hill vs. Golden. Hill’s Heirs vs. Same.
    APPEALS FROM MADISON CIRCUIT.
    1. Where the husband conveys land during the coverture, the widow suing for dower is not entitled to rents; even from the time of commencing her suit. (Webber vs. Burges, M. S. opinion, of June Term, 1855; 4 B. Monroe, 368.)
    2. The proper criterion of recovery against the heirs of a grantor upon a covenant of warranty, when there is a recovery of dower, “is that proportion of one-third of the consideration paid for the land, which the value of the life estate in the allotment made, bears to the value of an estate in fee therein.
    3. The claim of a grantee against the heirs of a grantor, upon a covenant of warranty, is not a valid defense by way of counter claim to a claim of dower, by the widow of the grantor, under the 126 Sec. of the Code of Practice.
    
    
      In the year 1847, Humphrey Hill, for the consideration of three hundred dollars, conveyed by deed with general warranty, seventy-four acres of land to Lurania Golden. In 1842, Hill had given to Lurania Golden his bond for the conveyance of this land, in which the consideration is stated to be, that Fielding and Harrison Golden, two illegitimate sons of Lurania Golden, are to comply with the directions of Hill during his lifetime, and that Hill was to keep possession of the land so long as he lived. Humphrey Hill died in 1854, leaving Mary Hill his widow, and Green B. Hill and others, his heirs-at-law. In 1854, Mary Hill filed her petition claiming dower in the seventy-four acres of land aforesaid.
    The right of dower is conceded in the answer, but a counter claim is set up against the widow, administrator and heirs of the grantor; arising out of the covenant of warranty; to this counterclaim, there was a demurrer which the court overruled, and a response was made by plaintiffs. Judgment was rendered in behalf of the widow for dower in the land, without any allowance of rent. And also, a judgment against Hill and heirs, for $210 35, to be levied of estate descended. From this judgment the parties respectively have appealed.
    
      S. Turner for Mrs. Hill.
    Argued — 1. That the court erred in not allowing rents upon her dower interest in the land, from the commencement of her suit, which the commissioner’s report shows to be worth $35.
    2. The court erred in overruling the demurrer to the counter claim of Mrs. Golden. 1st. Because the claim of Mr. 1-Iill is against Mrs. Golden alone; and the claim set up as counter claim, is, if valid, against the administrator and heirs of Hill, who are not parties to the suit. 2d. The claim is not valid as a counter claim, under the 126 Sec. of the Code of Practice. 3d. It is not alleged that there is not assets or estate descended to satisfy the warranty.
    3. It is insisted that the consideration passing to Hill for the conveyance, was a transferred consideration, and grew out of illicit intercourse. If the inducement which led to the agreement was illegal, the agreement is void. (3 Bibb. 500; 6 Dana 91: 8 lb. 97; Chitty on Con. 673, 792.) If only part of the consideration be vicious, the whole contract is void. {Fethcrston vs. Hutchison, Croke Eliz., 199; 1 Bing.,N. C. 662; 2 lb. 646; Smith’s leading cases, vol. 43,2845.)
    Mrs. Golden does not come into court with clean hands. The evidence shows that Hill did spend much time with her, after the date of the bond of 1842, in defiance of religion, morality, and law; and to the great mortification of his wife and children. It is against the policy of the law, to give any sanction founded in whole, or in part, on such consideration. And if the proof is not positive, even strong suspicion is sufficient to send the parties to a court of law.— (See authorities supra.)
    
    4. The amount adjudged to Mrs. Golden, is too great; the criterion of recovery has been wholly mistaken by the court. If entitled to any recovery, it should not exceed “ the proportion of one-third of the consideration expressed in the deed, which a ten years purchase bears to the fee simple.” The court gave the value of the use of the land for ten years from the eviction.
    
      W. 11. Caperton for Golden—
    1. Insisted that the counter claim set up, was a valid claim, growing out of the facts in the case.— The consideration of the conveyance is not asserted in such way as to authorize any inquiry into it. No fraud or mistake is proved. (See 2 Litt. 209;- 2 J. J. Marsh. 265; 3 lb. 167; 5 lb. 144.) The services of Fielding and Harrison, the two sons of Mrs. Golden, was of greater value, between 1842 and 1847, than the consideration expressed in the deed; until which time, Hill held the possession of the land, when he expressed himself satisfied as to the price.
    1. Where the husband conveys land during the coverture, the widow suing for dower is not entitled to rents, even from the time of commencing her suit. (Webber vs. Burgess, MSS. opinion, Juneterm, 1855, 4 B. Mon., 368.)
    2. The proper criterion of recovery against the heirs of a grantor, upon a covenant of war ranty, when there is a recovery of dower, “is that proportion of one-third of the consideration paid for the land, wjulí th,® value of the life estate, in the albears to the value of an estate m fee therein.”
    3. The claim of a grantee against the heirs of a grantor, upon a covenantof warranty, is not a valid defense by way of counterclaim to a claim of dower by the widow of the grantor, under the 126tk see. of the Code of Practice.
    
    
      2. The counter claim is good under the Code of Practice, sec. 126.
    January 7.
   Judge Stites

delivered the opinion of the Court.

Humphrey Hill, the husband of the appellant, and grantor of the appellee, had conveyed the land in question during coverture, and in such cases, as repeatedly held by this court, the dowress is not entitled to back rents, even from the commencement of the suit. (Webber vs. Burgess, M. S. opinion, June term, 1855. 4 Ben. Mon., 368.) The failure to allow Mrs. Hill back rents, from the beginning of the suit, was therefore not erroneous.

The judgment upon the counter claim against the heirs at law of Humphrey Hill, is, however, deemed erroneous.

First. Because it is for too much. The extent of the liability of the estate of the grantor upon the warranty, is that proportion of one-third of the consideration paid for the land, which the value of her life estate in the allotment made, bears to the value of an estate in fee therein. This is a case of an eviction by paramount title, to the extent of a life estate in one-third in value of the land. The consideration paid is to be considered, in determinr ing the criterion of the damages to be recovered, a*M the proportion of that consideration estimated ag above indicated, is the extent of the grantee’s . . . „ , demand upon the estate of her grantor.

Second. The judgment was unauthorized as a counter claim against the heirs of Humphrey Hill.— The Civil Code, {sec. 126,) limits in terms, a counter claim to “ a cause of action in favor of the defendants or some of them, against the plaintiffs or some of them, arising out of the contract, or transactions set forth in the petition, as the foundation of the plaintifi’s claim, or connection with the subject of the . ,, action.

The counter claim here is based upon the warranty of the grantor, in the deed to the defendant, Mrs. Golden.

It is true the personal representatives and heirs and distributees of the grantor, are liable upon that warranty; but the liability of Mrs. Hill as a distributee, had she, as dowress, received one-third of the personalty, depends upon the failure of assets in the hands of the administrators and that of the heirs at law, though they may be sued jointly with the administrators, is dependant upon the same contingency.

It does not appear by allegation, or otherwise, that Mrs. Hill is liable to the appellee upon her counter claim. No averment of an insufficiency of assets is made in the answer; and no such insufficiency is otherwise shown. She is the only plaintiff in the action; and the demand by way of counter claim, not being available, as presented against her, nor connected by averment with the original cause of action; is not such a counter claim as is contemplated by the Code; nor such as would authorize a judgment, as upon an original proceeding against the heirs at law. The heirs at law demurred to the counter claim against them, and resisted a judgment thereon, and for the reasons stated, we are of opinion the demurer should have been sustained, and the appellee required to proceed in a separate action against them and the administrators upon the warranty. They were not plaintiffs in the original action, and there was properly no counter demand against them.

With regard to the consideration of the deed, we deem it sufficient to say, that the proof of the alleged illegality, is not such as effects Mrs. Golden’s right to recover upon the warranty, in an appropriate proceeding had for that purpose.

Wherefore, the judgment upon the original petition allotting dower to Mrs. Hill is affirmed, and upon the appeal therefrom, the appellee is entitled to her costs; but the judgment upon the counter claim is reversed, and cause remanded, with directions to the Circuit Court, to sustain the demurrer of the appellants to the counter claim of the appellee as against them, and permit her to amend the same if she desires; or to cause the counter claim to be stricken out of the answer, and made the subject of a separate action.  