The Union times. [volume] (Union, S.C.) 1894-1918, 1905-07-28
WOMAN NAY SELL "DOWER. I"

During the Lifetime of the
Husband independently of
the Sale of the Land.
| There has just been filed with
the clerk of the court of York county
an order by Hon. G. w. Gage in a
case that was heard by him at the
spring term of the Court of General
Sessions, and which seems to in
volve novel and interesting ques-
ton OF law as to the value of an
inchoate right of dover.
| The title of the case in which the
order has just been issued is j. nj.
Cherry VS. the Smith-Fcwell Com
pany. Mr.. w. J. Cherry repre-
sents the plaintiff and the defendant
is represented by Spencers & Dun
lap.
! According to the complaint the
defendant sold the plaintiff a plan
tation on Catawba River, known as
the Campbell place, and gave a
general warranty title which along
with other things covered all pos
siblc contingencies as to dover.
After purchasing the property the
plaintiff learned that Mrs. Jennie
e. Hutchinson, wife of Mr.. w. C.
Hutchinson, who had formerly owned
the land, had not rcnounced her
dover. The plaintiff forthwith de-
manded of the defendant that it
cXtinguish this dover. The de-
fendent refused; whereupon the
plaintiff himself purchased the
dover from Mrs. Hutchinson, pay
ing her therefor the sum of S2O6 90.
After having acquired this dover
the plaintiff demanded reimburse
ment at the hands of the defendant
and the demand being refused the
plaintiff entered suit for damages
in the amount in question, with
accrued interest.
The defendant dcmurred to the
complaint in the case, setting up
that the plaintiff had failed to state
facts sufficient to constitute cause
OF action, and also claiming that as
the alleged incumbrance could not
mature during the lifetime of w.
&c. Hutchinson, who is still alive, the
plaintiff certainly has not been
damaged up to this time. In the
order just filed Judge Gage over
rules this demurrer and gives his
reasons in full.
1T has been decided by the
Courts of the State," says his Honor,
that the inchoatc right of dover
is neither an estate in land, nor is
it an incumbrancc thereon; but it
is defined as substantial right of
property, such as woman may
sell for a price. The substantial
right of property arises out of the
concurrent seizure of land by man,
and his marriage thereafter to a
woman.
So the right is inscparable from
land and proceeds out of it, if it
is not an estate in it. A substan-
tial right of property of that charac-
ter has value, and value is always
capable of ascertainment. Such an
:, asccrtainment is certainly had in
the common transactions of life,
sometimes by judicial processes,
more frequently by mutual agree
mcnt between the woman claiming
the right and the person claiming
the land. The fact that the right
is uncertain of fruition or dover,
and therefore Of doubtful value, is
not conclusive against it's existence
or it's value. Many rights rest in
like uncertainty; but are nevcrthc-
less subject to practical attain
| mcnt. The covenant of general
warranty is such a contract as will
indemnify the land owner against
the widows claim of dover and
that although the claim was in
choate when the covenant of war
ranty was entered into; but became
ripe and was asserted thereafter.
The existence of the right of the
wife and the existence of the cove
nant of warranty are the two factors
which have superinduced that
which might be mistakably regarded
as the premature assessment of
dover; but it is no such thing.
Dover is specific interest, deter
,minable actually, and is always the
same. The inchoate right of dover
is altogether uncertain of fruition.
Therefore of value; it must be as
; sessed by a jury upon all tho testi-
mony, and must, in the nature Of
the case, be of less value than the
/ Ipuor >,