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;2 and this is the reason that neither livery nor writing is essential to the validity of an assignment in pais. (b) 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. (c) In Bedingfield's case, (d) it was held, that the widow, in such a case, 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, (e) that upon the acceptance of an assignment of dower by the heir, in satis- *70 faction 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.

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,

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.1

(b) Co. Litt. 35, a.

(c) 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 sustain 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, 110.

(d) 9 Co. 17.

(e) New York Revised Statutes, vol. i. 793, sec. 23.

1 See Hopper v. Hopper, 2 N. J. 715.

2 See Childs v. Smith, 1 Md. Ch. Dec. 483.

3 French v. Peters, 33 Maine, 396. Mantz v. Buchanan, 1 Md. Ch. Dec. 22

if any, be removed. (a) In South Carolina, it was held, in Ramsay v. Dozier, (b) and again, in Boyle v. Rowand, (c) 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. (d)1 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 unless some special cause be shown, courts of equity carry the account back to the death of the husband. (e)2 The New York Revised Statutes (ƒ) 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. (g) 4

(a) Lavenport v. Wright, Dy. 224, a. Sheppard's Touch. by Preston, vol. i. 28, 32; Park on Dower, 311.

(b) 1 Tred. Const. (S. C.) 112.

(c) 3 Des. Ch. 555. The dowress in South Carolina is now barred by a statute of limitations, after twenty years. Wilson v. McLenaghan, 1 McMullan, 35.

(d) Barnard v. Edwards, 4 N. Hamp. 107. Parker v. Obear, 7 Metcalf, 24. Wakeman v. Roache, Dudley, 123. In Maryland, in the case of Wells v. Beall, 2 Gill & Johns. 468, Chancellor Bland held, that the statute of limitations was no bar in equity to the claim of dower, or the rent and profits thereof.

(e) Oliver v. Richardson, 9 Vesey, 222. See also Swaine v. Perine, 5 Johns. Ch. 482.

(ƒ) Vol. i. 742, sec. 18.

(g) In New Jersey, an action of dower is barred by the statute of limitations after twenty years, (Berrien v. Connover, 1 Harr. 107), and in Ohio, after twenty-one years, (Tuttle v. Willson, 10 Ohio, 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 on Appeals, 225.3 In the report of the English real property commissioners, in 1829, it was pro

1 But the statute of limitations begins to run after a demand of dower. Robie v. Flanders 33 N. Hamp. 524. See the subject examined in May v. Rumney, 1 Mann. (Mich.) 1; May v. Specht, 1 Ibid. 187; Tooke v. Hardeman, 7 Geo. 20.

2 And having obtained jurisdiction, a court of equity will settle all questions which arise, in order to prevent a multiplicity of suits. Turner v. Morris, 27 Miss. 733.

And see Kiddall v. Trimble, 1 Md. Ch. Dec. 143. If the widow dies, pending a suit for dower in lands aliened by her husband, her representatives cannot recover mesne profits. Turney v. Smith, 14 Ill. 242. Otherwise if the husband died seised. Johnson v. Thomas, 2 Paige, 377. And it was held, in Harper v. Archer, 28 Miss. (6 Cush.) 212, that, though the widow neglect to have dower assigned her, equity will give an acc: unt to her representatives, if she die before an account be taken.

4 As to laches and lapse of time barring an annuity given in lieu of dower, see Chew v. Farmers' Bank, 9 Gill, 361.

Dower may le recovered by bill in equity, as well as by *71 action at law.1 The jurisdiction of chancery over the claim

posed, 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 parties 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, 488. 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, pp. 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 December, 1830. Robinson on the Practice in the Courts of Law and Equity, in Virginia, vol. i. 464. The writ of right is retained and regulated by the Territorial Law of Michigan, of February 26, 1821, and the writ of disseisin in Indiana. Revised Statutes of Indiana, 1838. The action of Ejectment with its harmless, and, as matter of history, curious and amusing English fictions, is retained in New Jersey, Delaware, Ohio, Indiana, Illinois, Maryland, North Carolina, Virginia, Kentucky, Mississippi, Tennessee, and perhaps in some other states. In Pennsylvania, South Carolina, Missouri, and New York, the fictitious part of the action is abolished by statute. In Alabama, the action of trespass is used to try title to lands. In Tennessee, a writ issues and is served by the sheriff on the tenant along with the declaration in ejectment. This is by the statute of 1801. In Pennsylvania, the revisors of the civil code suggested that the action of ejectment might well be expanded, modified, and applied as a substitute for the principal part of the ancient real actions, and they prepared a bill for that purpose. By the bill it might be brought upon the right of possession of real estate of a corporeal nature, and upon the right of property. in incorporeal hereditaments; and upon the right of property in any remainder or reversion in real estate against any other person claiming the same remainder or reversion, and by any person in possession of real estate to determine adverse claims thereto. Possession of land might also be recovered in the action of trespass quare clausem fregit. In Massachusetts, the writ of right, and the possessory real actions, would appear to be in active and familiar use, in all their varied forms and technical distinctions, after having become simplified, and rendered free from every troublesome

1 See Campbell v. Murphy, 2 Jones Eq. 357.

of dower, has been thoroughly examined, clearly asserted, and definitively established. It is a jurisdiction concurrent with that law; and when the legal title to dower is in controversy, it must be settled at law; but if that be admitted or settled, full and effectual

relief can be granted to the widow in equity, both as to the *72 assignment of dower and the damages. The equity jurisdiction was so well established, and in such exercise in England, that Lord Loughborough said that writs of dower had almost

incumbrance that perplexed the ancient process and pleadings. See Professor Stearns's and Judge Jackson's Treatises on the Pleadings and Practice in Real Actions in Massachusetts, passim, and 2 Metcalf, 32, 163. So late as 1834, we perceive a decision in New Hampshire, in the action of formedon in remainder, in the case of Frost v. Cloutman (7 N. Hamp. 1), and to which the defence was a common recovery, levied there in 1819, in bar of an estate tail. The law of common recoveries was familiarly and learnedly discussed. Indeed, it is a singular fact, a sort of anomaly in the history of jurisprudence, that the curious inventions, and subtle, profound, but solid distinctions, which guarded and cherished the rights and remedies attached to real property in the feudal ages, should have been transported, and should for so long a time have remained rooted in soils that never felt the fabric of the feudal system; whilst on the other hand, the English parliamentary commissioners, in their report, proposed, and Parliament executed, a sweeping abolition of the whole formidable catalogue of writs of right, writs of entry, writs of assize, and all the other writs in real actions, with the single exception of writs of dower, and quare impedit. This we should hardly have expected in a stable and proud monarchy, heretofore acting upon the great text authority of Lord Bacon, that "it were good if men, in their innovations, would follow the example of time itself, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived."

By the statute of 3 and 4 William IV. c. 27, all real and mixed actions, except the writ of right of dower, and the writ of dower unde nihil habet, quare impedit and ejectment, were abolished. So, the legislature of Massachusetts, upon the recommendation of the commissioners appointed to revise their laws, have at length yielded to the current of events, the force of examples, and the innovating spirit of the age, which is sweeping rapidly before it, in England and in this country, all vestiges of the ancient jurisprudence. They have abolished all writs of right and of formedon, and all writs of entry, except the writ of entry upon disseisin, and which is regulated and reduced to its simplest form. This last writ was deemed by the commissioners more simple and convenient, and much more effectual than the ejectment, because a final judgment in a writ of entry is a bar to another action of the same kind. The old common-law remedies for private nuisances are also abolished, and the substituted remedies are the action on the case, and an enlarged equity jurisdiction given to the Supreme Judicial Court. Mass. Revised Statutes, 1835, part 3, tit. 3, c. 101, 106.

1 The husband's alienee may resort to equity to have dower assigned so as to be let into the residue of the land. Shelton v. Carrol, 16 Ala. 148. An equity cannot be interposed to defeat a right of dower, but if the widow applies for equitable relief she cannot resist an equitable defence as against a bonâ fide purchaser without notice. Blain v. Harrison, 11 Ill. 384.

gone out of practice (a) The equity jurisdiction has been equally entertained in this country, (b) though the writ of dower unde nihil habet, is the remedy by suit most in practice. The claim of dower is considered, in New Jersey, which has a distinct and well organized equity system, as emphatically, if not exclusively, within the cognizance of the common-law courts. (c)

In addition to the legal remedies at law and in equity, the surrogates, in New York, and courts in other states, are empowered and directed, upon the application either of the widow or of the heirs or owners, to appoint three freeholders to set off by admeasurement the widow's dower. (d) This convenient and summary mode of assignment of dower, under the direction of the courts of probates, or upon petition to other competent jurisdictions in the several states, has probably, in a great degree, superseded the common-law remedy by action. When a widow is legally seised of her freehold estate as dowress, she may bequeath the crop in the ground of the land holden by her in dower. (e)

Having finished a review of the several estates of freehold not of inheritance, we proceed to take notice of the principal incidents which attend them, and which are necessary for their safe and convenient enjoyment, and for the better protection of the inheritance.

(a) Goodenough v. Goodenough, Dickens, 795. Curtis v. Curtis, 2 Bro. C. C. 620. Munday v. Munday, 4 Ibid. 295. 2 Vesey, 122, S. C.

(b) Swaine v. Perine, 5 Johns. Ch. 482. Greene v. Greene, 1 Hamm. (Ohio) 244. Dr. Tucker, note to 2 Blacks. Comm. 135, n. 19. Chase's Statutes of Ohio, vol. ii. 1316. Grayson v. Moncure, 1 Leigh, 449. Kendall v. Honey, 5 Monroe, 284. Stevens v. Smith, 4 J. J. Marsh, 64. Badgeley v. Bruce, 4 Paige, 98. London v. London, 1 Humph. (Tenn.), 1, 12.

(c) Harrison v. Eldridge, 2 Halst. 401, 402.

(d) New York Revised Statutes, vol. ii. 488–492. 460. Hotchkiss's Code of Statute Law of Georgia, 433.

Coates v. Cheever, 1 Cowen,

(e) Perkins, sec. 521. Dy. 316, pl. 2. The statute of Merton, 20 Henry III., had this provision; and it has been frequently reenacted in New York, and is now included in the new revision of the statute laws. New York Revised Statutes, vol. i. 743, sec. 25. In the revised statute codes of the several states, the law concerning dower is usually one of the titles, and it is well digested upon common-law principles, and power is given to the circuit courts, county courts, probate, surrogate, or orphans' courts, before whom suits in dower are brought, to cause dower to be assigned by commissioners. These revised codes in the western, as well as in the Atlantic states, are ably executed, and wisely conservative in their provisions, not only in this particular case, but under all the titles and modifications of property. None of the state s have gone quite as far in their improvements or innovations as the Revised Statutes of New York, of 1830.