(Isbell, J., dissenting). — The principal question presented to this court for adjudication, is as to the construction of the agreement between the parties. But little argument, and no authority, is adduced on either side.. On the part of the defendant, it is said that the law knows no better use of money than a safe investment at interest; that dower is but a usufruct, and that if complainant gets her interest, she gets the use of her money; or, in other words, the use of the land; and that a court of equity always directs a trustee having funds, to invest them at interest. A judge is not to shut his eyes, and ears, and mind, and be ignorant of those things which every one else knows. He may recognize the history and condition of the country and state, in which he lives and acts. And if so, he knows that the cash value of a dower estate, according to the tables, is *563■not, generally, worth as nmcb as tbe use of tbe land. And «till more may be know tbat a rentage of six, or even ten per cent., is not, in tbis state, equivalent to tbe free use of tbe money, and tbat, too,, without tbe violation of any law, it is not correct to apply to a new country, where real estate is constantly rising in value, and money is in great request,. tbe reasoning which may be well enough in a country where treal estate has a fixed value, and money seldom commands six per cent, for its use,
“ As tbe plaintiff would be entitled to make tbe most of tbe use of tbe land, if she took her dower in tbat; so she is entitled to make tbe most from tbe use of tbe money. Tbis is tbe meaning of tbe contract, which stipulates that she is ■to have her dower out of tbe said funds, either absolutely or for life, according to the opinion of tbe court as to what her dower would be in tbe said lots.” Tbe agreement is, in effect, to take her dower in tbe money, instead of tbe lots, so -as to relieve tbe purchaser of the latter. It is tbe opinion ■of tbe court, that the plaintiff is entitled to have tbe control and use ©f tbe money, giving security for its repayment, as required by tbe «judgment of tbe District Court.
An error is assigned in tbe rendition of tbe judgment for fen per cent, interest, from April, 1838, until paid. There Is not before us tbe papers, tbe record of a suit. There is only a case made in tbe court below, on tbe construction of tbe contract between tbe parties, with tbe judgment rendered. If there was a full case here, showing tbe rela- ' iion of tbe parties entirely, and under what circumstances Davis is a trustee, and bow, and for whom, it might appear -both equitable and legal, tbat Davis should be held to account for tbe profits of this portion of tbe funds in bis hands, but no such case is made — none such is presented to us -for -adjudication, Neither is there anything showing bow tbe court was authorized to render judgment for interest at ten per cent, whilst, on tbe other band, tbis is assigned for er« Tor. Tbe case stands before ns simply, as a judgment for ten per cent, interest on money due, without stipulation for tbat ■amount. We cannot, therefore, avoid considering it err©-*564neons.m this respect. The judgment of the District Court is reversed, so far as the same is rendered for interest at ten per cent., and it is the opinion of this court,, that the said judgment shóuld be rendered for the above said sum, with interest at six per cent, per annum, from the fifteenth day of April, 1853, until paid,