Chaney v. Tipton

Chambers, J.,

delivered the opinion of this court.

The material questions in this case are concluded by the opinion of this court, on the former appeal, and reported in 11 G. & J., 255. We adhere to the opinion there expressed.

*334In pursuance to the mandate of this court, the bill and proceedings have been amended in the court below; and we think that court erred, in not proceeding with the case, in obedience to the acts of Assembly regulating descents, by directing and allowing the election to be made by the parties entitled, according to the provisions of those acts.

The contract of sale, alleged to have been made by Chaney, ought not to defeat the proceeding.

The estate descended, amongst others, to Mrs. Chaney, the wife, and no contract made by her husband alone, or even with her consent and concurrence, unless in the mode prescribed by law to pass the real estate of a/eme covert, could divest her of that estate.

It is in virtue of her estate, as one of the heirs at law, that this proceeding has been instituted, and the contract of the husband to sell her interest, or his own, was not a sufficient reason on which to dismiss it.

The effect, in other respects, of such a contract, and of payments made to the husband in virtue of it, as well as other matters alluded to and discussed in the argument, are not now properly for review in this court, which has not the duty of adjusting the details; the predicament of the case not being such as to make this adjustment, at this time, practicable, but will be proper for consideration when the election shall be made, and the bonds are about to be given; or if die election shall be refused, when the proceeds of sale shall be distributed.

If Stallings, one of the appellees, has acquired the interest of other co-heirs, as is alleged, the means of securing that interest must be determined by the nature of the interest acquired.

The acts of Assembly referred to, authorise the alienee of an heir, in the cases therein provided for, to stand in the place of the vendor, as to the right of election or distribution. If the interest or claim be such as a court of equity will specifically enforce, the remedy must be sought by the proper process of the Chancery court. For any other contract in relation to the land, the ordinary remedies at law, or in equity, as the case may require, will be open to tire party entitled. The court will sign a decree, reversing the decree of the court below, and *335remanding the case, to he proceeded in according to the views above expressed.

DECREE REVERSED AND CAUSE REMANDED.

Dorsey, J., dissented.