judgment, delivered by the Chief Justice, in Thompson v. Morrow, decided, that the widow was to take no advantage of any increased rise in value, by reason of improvements of any kind made by the purchaser; but, throwing those out of the estimate, she was to be endowed according to the value at the time of the assignment. This doctrine is declared, by Mr. Justice Story,b to stand upon solid principles, and the general analogies of the law, and he adopts it. The distinction is supposed not to have been within the purview of the ancient authorities.

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In New-York, the very point arose, and was discussed, in Dorchester v. Coventry, and the court adhered to the general rule, without giving it any such qualification; and they confined the widow to her dower, computed according to the value of the land at the time of the alienation, though it had risen greatly in value afterwards, exclusive of buildings erected by the alienee. The same doctrine was followed in Shaw v. White, and the language of the statute to which these decisions alludede was, that the dower of any lands sold by the husband should be "according to the value of the lands, exclusive of the improvements made since the sale." That statute required, in case of improve

a5 Serg. & Rawle, 289. Shirtz v. Shirtz, 5 Watts, 255, S. P. b3 Mason's Rep. 375.

11 Johns. Rep. 510.

a 13 Johns. Rep. 179. Walker v. Schuyler, 10 Wendell, 480, S. P. So, in Tod v. Baylor, 4 Leigh's Rep. 498, the Court of Appeals of Virginia held, that in equity as well as at law, the widow was to take for dower the lands according to the value at the time of alienation and not at the time of the assignment of dower; and that she was not entitled to any advantage from enhancement of the value by improvements made by the alienee, or from general rise in value, or from any cause whatever. On the other hand, the Supreme Court of Ohio, in the case of Dunsett v. Bank of United States, 6 Ohio Rep. 76, follows the doctrine laid down in Thompson v. Morrow, and Gore v. Brazier, and by Mr. Justice Story, in 3 Mason, 375.

• Laws of New-York, sess. 29, c. 168.

ments made by the heir, or other proprietor, upon lands previously wild and unproductive, that the allotment of dower be so made, as to give those improvements to the heir or owner. The construction of the statute, as to this question, did not arise, and was not given, in Humphrey v. Phinney, and it may be doubted whether the statute has not received too strict a construction in the subsequent cases. The better, and the more reasonable American doctrine upon this subject, I apprehend to be, that the improved value of the land, from which the widow is to be excluded, in the assignment of her dower, as against a purchaser from her husband, is that which has arisen from the actual labour and money of the owner, and not from that which has arisen from extrinsic or general causes. The New-York Revised Statutes, have *declared, that if the husband dies seised, the widow shall recover damages for withholding her dower; and the damages shall be one-third of the annual value of the mesne profits of the lands in which she shall recover dower, to be estimated from the time of the husband's death, in the suit against the heirs, and from the time of the demand of her dower, in the

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2 Johns. Rep. 484.

See supra, p. 66, 67, and the cases there referred to, and Taylor v. Brodrick, 1 Dana's Ken. Rep. 348. Essay on Dower, in the American Jurist, No. 36, for January, 1838, p. 327. In the case of Powell v. M. & B. Man. Co., 3 Mason's Rep. 373, it was suggested, that in Hale v. James, 6 Johns Ch. Rep. 258, the Chancellor adhered to the rule, that the value of the land at the time of alienation was to be taken and acted upon as a clear rule of the common law; and that the common law authorities do not warrant any such doctrine. I am rather of the opinion that they do warrant the doctrine, to the extent the Chancellor meant to go, viz.: that the widow was not to be benefitted by improvements made by the alienee. That position does not seem to be denied, and in Hale v. James, as well as in Humphrey v. Phinney, nothing else was decided, for nothing else was before the court. In the former case, the Chancellor did not mean to give any opinion on the distinction between the increased value, arising from the acts of the purchaser and from collateral causes; and so he expressly declared.

suit against the alience of the heir, or other persons, and not to exceed six years in the whole. No damages are to be estimated for the use of any permanent improvements made after the death of the husband. A more necessary provision respecting damages, as against the alienee of the husband, (for on that point there is a difference between the decisions in this country,) is altogether omitted."

When the certainty of the estate belonging to the widow as dower, is ascertained by assignment, the estate does not pass by assignment, but the seisin of the heir is defeated ab initio, and the dowress is in, in intendment of law, of the seisin of her husband; and this is the reason that neither livery nor writing is essential to the validity of an assignment in pais. Every assignment of dower by the heir, or by the sheriff, on a recovery against the heir, implies a warranty, so far, that the widow, on being evicted by title paramount, may recover in value a third part of the two remaining third parts of the land whereof she was dowable." In Bedingfield's case, it was held, that the widow, in such a case,

In Tod v. Baylor, 4 Leigh's Rep. 498, it was held, that the widow was not entitled to an account of profits, as against an alience of the husband, except from the date of the subpœna. In Maryland, also, the widow recovers damages against the alienee of her husband, only from the time of the demand and refusal to assign. Steiger's Adm. v. Hillen, 5 Gill & Johnson, 121. In Woodruff v. Brown, 4 Harrison's N. J. Rep. 246, it was held that tout temps prist might be pleaded by the heir in an action of dower, but that the plea was personal and peculiar to him, and could not be pleaded by his alienee or feoffee. They must answer in damages from the death of the husband dying seised, and seek their indemnity upon their covenants against the heir.

b Co. Litt.35, a.

Perkins, sec. 419. Co. Litt. 384, b. The widow's remedy on eviction by paramount title of lands assigned to her for dower, is by a new assignment of dower, and she cannot snstain an action upon the covenant of warranty to her husband, because she does not hold the whole estate. The right of action is in the heirs. St. Clair v. Williams, 7 Ohio Rep. part 2, 110.

d 9 Co. 176.

was to be endowed anew of other lands descended to the heir; but where the assignment was by the alienee of the husband, and she was impleaded, she was not to vouch the alienee to be newly endowed, because of the greater privity in the one case than in the other. It is likewise provided by the new statute law of New-York, that upon the acceptance of an assignment of dower by the heir, *in satisfaction of the widow's claim upon all the lands of her husband, it may be pleaded in bar of any future claim on her part for dower, even by the grantee of the husband.

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In the English law, the wife's remedy by action for her dower, is not within the ordinary statutes of limitation, for the widow has no seisin; but a fine levied by the husband, or his alienee or heir, will bar her by force of the statute of non-claims, unless she brings her action within five years after her title accrues, and her disabilities, if any, removed. In South Carolina, it was held in Ramsay v. Dozier, and again in Boyle v. Rowand, that time was a bar to dower, as well as to other claims. But in the English law there is no bar; and in New-Hampshire, Massachusetts and Georgia, it has been adjudged, that the writ of dower was not within the statute of limitations. As to the account against the heir for the mesne profits, the widow is entitled to the same from the time her title accrues; and

• New-York Revised Statutes, vol. i. 793, sec. 23.

⚫ Davenport v. Wright, Dy. 224, a. Sheppard's Touch. by Preston, vol. i. 28. 32. Park on Dower, 311.

• 1 Tred. Const. Rep. S. C. 112.

43 Dess. Ch. Rep. 555. The dowress in South Carolina is now barred by a statute of limitations after twenty years. Wilson . McLenaghan, 1 McMullan, 35.

• Barnard v. Edwards, 1 N. H. Cas. 107. Parker v Obear, 7 Metcalf Rep. 24. Wakeman v. Roache, Dudley's Rep. 123. In Maryland, in the case of Wells v. Beall, 2 Gill & Johnson, 468, Chancellor Bland held, that the statate of limitations was no bar in equity to the claim of dower, or the rent and profits thereof.

unless some special cause be shown, courts of equity carry the account back to the death of the husband. The New-York Revised Statutes have given a precise period of limitation, and require dower to be demanded within twenty years from the time of the death of the husband, or from the termination of the disabilities therein mentioned, one of which is imprisonment on a criminal charge or conviction.

Oliver v. Richardson, 9 Ves. 222. See also, Swaine v. Perine, 5 Johns. Ch. Rep. 482.

b Vol. i. 742, sec. 18.

In New-Jersey, an action of dower is barred by the statute of limitations after twenty years. Berrien v. Connover, 1 Harrison's Rep. 107, and in Ohio, after twenty-one years. Tuttle v. Willson, 10 Ohio Rep. 24. If dower be not assigned to the widow during her life, the right is extinct. I know of no proceedings, said Lord Wynford, by which the fruits of dower could be recovered for her representatives. 1 Knapp's Rep. on Appeals, 225. In the report of the English real property commissioners, in 1829, it was proposed, that no suit for dower should be brought, unless within twenty years next after the death of the husband; and that an account of the rents and profits of the dowable land should be limited to six years next before the commencement of the suit. This rule was adopted by the statute of 3 and 4 William IV., c. 27; and it is the rule precisely in the New-York Revised Statutes, (see supra); and in vol. ii. 303. 332. 343, the writ of dower, as well as other real actions, is abolished, and the action of ejectment substituted and retained, after dismissing all the fictitious parts of it. The common law remedy, by writ of nuisance is retained, and simplified; and that writ, with some parts of the action of waste, are the only specimens of any of the real actions, known to the common law, which are retained in New-York. A writ of nuisance was prosecuted to trial in New-York, in 1843, in the case of Kintz v. McNeal, 1 Denio, 438, but this antiquated proceeding was not encouraged, and the court held the parti s to strict practice. The real actions are still retained in several of the United States. In Pennsylvania, the ancient real actions have been hitherto retained as part of their remedial law, though the writ of right is not known to have been actually brought, and the assize of nuisance is reluctantly retained as an existing remedy. (Brackenridge's Miscellanies, 438. Barnet v. Ihrie, 17 Serg. & Rawle, 174. 1 Rawle, 44, S. C. Report of the Commissioners on the Civil Code of Pennsylvania, in January, 1835, p. 58, 59. The commissioners recommended the substitution of the writ of nuisance for the assize of nuisance, as more simple, easy, and effectual.) The writ of right, and possessory real actions, are still in use in Maine, New-Hampshire, Virginia, and Kentucky, and they were in Virginia placed under statutory limitations, as late as De