Opinion
July Term, 1811.
From Martin.
Dower. The rents which accrue before the assignment of dower belong to the heir; but he is answerable over to the widow for them, as damages for not assigning her dower. The remedy for the widow to recover these damages is by petition for a writ of dower, and praying therein to have the damages assessed. The court will order an issue to be made up between her and the heir, and submitted to a jury. The widow cannot maintain an action on the case against the heir, nor any other person, for the rents received before the assignment of dower.
DAVID PERRY died seized of certain lots in the town of Williamston, which his administrator, the present defendant, leased for three years, and received the rents, amounting to £ 70 5s. Subsequent to the making of this lease the widow of Perry married John Sutton, and they filed a petition praying that her dower might be laid out in the lands of which Perry died seized. The jury included the lots aforesaid in her dower, and returned their report to court, and the court confirmed it. The jury also included the dwelling-house and outhouses of Perry in the dower, and the widow occupied the dwelling-house until her marriage, and her husband and herself afterwards occupied it until the dower was laid out. Sutton and wife then brought an action on the case against Burrows, to recover the (80) rents aforesaid, which he had received; and the question was, Whether the action could be maintained.
Browne for plaintiffs.
Daniel for defendant.
It is the duty of the heir to assign dower (81) to the widow within a reasonable time after the death of her husband. If he fail to do it, she shall, upon petition field for that purpose, have her dower assigned by a jury; and if she claim damages for the detention of her dower, she must inform the court of that fact in her petition (to which the heir must necessarily be a party), and the court will order an issue to be made up and tried between her and the heir, and the damages to be assessed. The rents are necessarily incident to the freehold, and go to the heir until dower be assigned. The rents now claimed belong to the heir, as they accrued before the assignment of dower. But the heir is not liable to the widow for the rents in an action on the case. He is liable upon her petition given by the act of Assembly, in analogy to the proceedings under the writ given by the statute of Merton; and there the widow recovers, not rents (which suppose a privity of estate), but damages for the detention of her dower, in assessing which the value of the rents is the proper guide to the jury. Judgment for the defendant.
(82)