Opinion
June Term, 1806.
Dower having been assigned to the widow upon a petition at law, equity will not entertain a bill for the mesne profits during the detention of the dower, unless there be some equitable circumstance, such as loss of title deeds, or detention of such deeds, or a discovery is necessary. Damages for the detention of the dower are to be prayed for and recovered when the dower is allotted. If defendant to a suit at law or dower die pending the suit, damages are lost, and dower alone recovered.
JACOB WHITHEAD died in 1783, seized and possessed of a tract of land in Nash County, leaving the complainant, Martha Whithead, his widow, who some time in 1786 filed her petition against Joseph John Clinch, who was then in possession of the said tract of land, praying that her dower therein might be allotted to her. Clinch contrived to delay the hearing of the petition until 1794, when he died, having previously made a will and appointed executors. The petition was carried on against the heirs of Clinch until 1800, when judgment was rendered in favor of the petitioner, and her dower in the (129) said land was accordingly allotted to her. During the pendency of this suit the land was possessed and the profits received by Clinch during his life and by his heirs after his death. When the writ of dower was executed, no damages for the mesne profits were recovered, owing in part to the doubt whether, as the suit was originally instituted against the ancestor and afterwards carried on against the heirs, any damages could be given, and as the act of Assembly regulating the proceedings upon petition for dower had made no provision upon this point. Clinch died possessed of property more than sufficient to satisfy the complainant's demand, which property came to the hands of his executor. Martha Whithead, the widow, filed this bill against Clinch's executors and heirs at law, praying for an account of the mesne profits, and that one-third part thereof might be decreed to be paid her.
From Halifax.
To this bill the defendants demurred and assigned for causes of demurrer that if complainant were entitled to damages, she ought to have demanded and recovered them with her dower at law; and that complainant had not shown that she was entitled to any damages for the detention of her dower, either in law or equity. The executor assigned another cause, to wit, that complainant's dower was recovered from the other defendants, who were the tenants in possession, and that damages in dower could by law be recovered from him. The complainant having joined in demurrer, the case was sent to this Court.
In support of the demurrer it was urged that without some equitable circumstance, such as defendant detaining title of deeds, loss of such deeds, or where a discovery from the defendant is necessary, a court of equity will not entertain a bill for mesne profits. 2 Vern., 519; 3 Atk., 340; 1 Atk., 524. That in this case no equitable circumstances existed or were set forth in the bill. It was further urged that this being a case which originated previous to the act of 1784, which regulated proceedings in cases of dower, it ought to be decided by (130) the law as it stood previous to the act of 1784. By this law, if the defendant in a writ of dower die pending the suit, damages are lost and judgment will be given for dower only. 2 Ba. Ab., 392, 294. And although cases are numerous where plaintiff or defendant at law, in a suit for damages, has died, it has always been conceded that damages were lost at law, and equity has never given relief. The case from 2 Brown Ch., 620, etc., is a case which was first instituted in a court of equity, and not in a court of law.
No damages or mesne profits were recoverable at common law in real actions, of which dower is one, on the principle that they were necessary to enable the tenant in possession to answer the demands of the lord. The statute of Morton, 20 Hen. III., first gave damages in dower to widows, and that only where the husband died seized of the land. Co. Lit., 33, 32 b. (2); 2 Ray., 1384; 2 Ba. Ab., 392; 3 Dyer, 284 and b. 33. No case can be produced where widows whose husbands did not die seized of the land of which they prayed dower recovered mesne profits, except two or three, which were afterwards reversed for error on that very account. No damages are prayed against a purchaser in the husband's lifetime. 3 Bro. Ch., 264; and in Beenbury, 57, is a case where the bill in almost every particular like the present was on demurrer dismissed.
Let the demurrer be sustained and the bill dismissed with costs.
(131)