
    Magdaline Keith v. Paul Trapier, Executor of John Keith, and R. O. Anderson.
    The widow is intitled to dower of the surplus value of land, mortgaged by her husband in his life time, after satisfying the mortgage debt, although she had renounced her dower, on the mortgage. Her renunciation excludes her from dower only as against the lien of the mortgage, vide Kecldey v. Kecldey, 2 Hill’s Ch. 252.
    Dower must be assessed on the actual value of the land, subject only to the lien of prior incumbrances. And where the husband sol.d to a mortgagee, to whom the wife had renounced, and in order to give an unincumbered title it was agreed, that the land should be sold under a decree of foreclosure, the. mortgagee to bid off if it did not exceed a stipulated price, and to pay the difference if it sold for less; and the land was sold accordingly, and was bought by the mortgagee for less than the stipulated price: held, that dower must be assessed on the price which the mortgagee had agreed to pay, and not on the price for which the land was sold under the decree, the amount of the mortgage debt being first deducted.
    By whatever rule as to the duration of life the value of dower is assessed, the estimate must be made in reference to the time of the assessment, and not of the husband’s death.
    The widow is intitled in equity, to an account for rents and profits until her dower is assigned; or to interest, if a sum of money is assessed in lieu of dower. The contrary rule in proceedings at law for the admeasurement of dower, is founded on the inadequacy of the proceeding for the recovery of damages, and not on the want of title to the mesne profits, vide Mey v. Mey,' 1 Bailey, 277, note. Gordon v. Stevens, 2 Hill’s Ch. 429, McCreary v. Cloud, 2 Bailey, 343.
    Before Harper, Chancellor, at Georgetown, February, 1829.
    Bill for assignment of dower. John Keith, the husband of complainant, was seized of a plantation, called Keithfield, which he mortgaged in fee to James Withers ; and to render the security more ample, his wife, the present complainant, renounced her right of dower on the mortgage. The mortgage was afterwards assigned to the defendant, R. O. Anderson; and there remained due on it the sum of $13/714.78, when John Keith entered into a treaty with the defendant, Anderson, for the sale of Keithfield, and an agree-, ment was concluded between them, at the price of $34,000. In order to make an unincumbered title, it was agreed, that a bill should be filed for foreclosure of the mortgage; that the plantation should be sold under a decree of the Court, and bid off by the defendant, Anderson, provided it should not exceed the stipulated price : and if it should be bid off for less, the said defendant agreed to pay the difference to Mr. Keith. The bill was filed accordingly : the plantation was sold by the commissioner, and bid off by Mr. Anderson, at $27,000; the price to be paid, and the title delivered, according to the terms of the decree, on the 1st of January, 1824. John Keith subsequently died, and the complainant claimed dower of the surplus proceeds of the land, after satisfying the mortgage to Withers.
    Harper, Ch. The questions made in the case, are: Whether, having released her dower in favour of the mortgagee, the complainant can have any right of dower in the surplus of the money for which the land was sold, after satisfying the mortgage. If she ■ have such right, whether it is to be assessed on the price for which the land was sold at auction, by the commissioner; or whether the J . additional sum is to be included, which was paid for the plantation by the defendant, Anderson, according to^ his contract. In what manner must the dower be assessed 1 In making similar assessments, it has been usual to allow the interest on one-third of the price for seven years, the estimated term of an average life; but as several years have elapsed since the death of the husband, and indeed since the commencement of this suit, the questions arise : whether the life is to be estimated at seven years from the death of the husband, or seven years from the time of the assessment; and if die latter, whether the wife is intitled to one-third of the interest which has accrued since the husband’s death, up to this time, in addition to the interest for seven years from the time of the assessment.
    The two first questions were not pressed in argument, and hardly admit of dispute. The cases in this State have sufficiently settled, that a wife is entitled to dower, in what we term, although not with strict propriety, an equity of redemption after a mortgage in fee. In the case of Crafts v. Crafts, 2 M’C. 541, where the husband had mortgaged previously to the marriage, the Court held, that the wife was not entitled to dower, as against the mortgagee; butthatshe had a right to redeem, and that the right to dower would then attach. In Brown v. Duncan, decided by the Appeal Court, in 1827,4 M’C: 346, it was held, that where the husband had purchased the land, and immediately mortgaged it back to the seller for the purchase money, the wife had no right of dower as against the mortgagee; but was entitled to dower in the surplus, after satisfying that mortgage, as against subsequent mortgagees. In England a decision to the same effect was made in Banks v. Sutton, 2 P. Wms. 700 : but that decision seems to have been overruled. Attorney General v. Scott, Ca. Temp. Talb. 138, Godwin v, Winsmore, 2 Atk. 525, Dixon v. Saville, 1 Bro. C. C. 326, Forder v. Wade, 4 Bro. C. C. 520, and D’Arcy v. Blake, 3 Sch. &Lef. 387.
    The doctrine which excludes a wife from dower in an equitable estate* is considered a harsh one in England. But in this State, the husband, in consequence of the act of the Legislature on the subject, has a legal seizin in the mortgaged premises. Act of 1791, 1 Faust, 65. The precise point has been decided in New York, by Chancellor Kent, in the case of Titus v. Neilson, 5 Johns. Ch. R. 452. The husband executed a mortgage, in which the wife joined, and duly acknowledged it; and this excluded her from dower in favour of the mortgagee : but she was held to be entitled to dower in the surplus, after satisfying the mortgage. In this case the wife' renounced her right of dower only in favour of the mortgagee; and I think it cannot be doubtedj that a satisfaction of the mortgage operates a defeazance of the renunciation. If she had not so renounced, she would have been entitled to dower in the whole estate, notwithstanding the mortgage.
    The second point is as little doubtful. If apart, only, of the mortgaged property had been sold, sufficient to satisfy the mortgage, she might have taken, in specie, a third of what remained, for life. The whole, however, was sold, and she cannot have it in specie. To what then is she entitled % The value of one-third of the surplus : and the value cannot be ascertained by any better test, than what the property actually brought on sale. The property actually brought, and the purchaser actually paid, $34,000, which is about $20,285, over what was due on the mortgage; and it is immaterial whether this was bid at a public sale, or agreed to be paid by private contract. If the husband had sold and released to the mortgagee, and thereby given him an unincumbered title, without any interference of the Court,.I cannot conceive how this could have affected the wife’s rights in the additional price paid for the equity of redemption. If the mortgage had remained unsatisfied after the husband’s death, one-third of the land might have been assigned to her, and the whole left subject to the mortgage; and in that case, the respective tenants must have contributed, rateably, to remove the incumbrance. She would have been tenant for life, of one-third: and the rule for apportioning an incumbrance between tenants for life, and a remainder man in fee, is that the tenant for life shall keep down the interest; or if the principal is to be paid, to- sell so much of the estate as will discharge the incumbrance, or to sell the whole-, and after satisfying the incumbrance, give the tenant for life his estate for life in the surplus of the proceeds. In this case, if only a portion of the estate, sufficient to satisfy the mortgage, had been sold, the widow would have been entitled to a life estate, in one-third of the residue: but the whole was sold, and she is entitled, after satisfying the mortgage, to oné-third of the proceeds for life. The proceeds must be what the land actually sold for, whether paid to Mr. Keith’s executor, or the officer of the Court.
    The third point presents an appearance of more difficulty. In assessing dower, a practice has prevailed, not sanctioned so far as I know by any express authority, of estimating all'lives, indiscriminately, at seven years'; and this practice is founded on the legal notion, that, taking all the lives in being, an average life, estimated at any given period, is'seven years. Whether this practice has made a rule, to be followed in all cases, is a question, upon which I shall not at present express any definitive opinion. Insurance offices have, I believe, rules for estimating lives, according to age, constitution, and other circumstances; but these rules I am not acquainted with, and if I were, I have not the evidence in this case to enable me to apply them. This must be, in the first instance, matter of reference; but thus much may be said by way of direction. If there be such a rule, on the ground mentioned, that any life, at any period, is to be estimated at seven years, it follows of course, that the life in question is to be valued at seven years, at the time when the assessment is made, whenever that may be; or if it is to be estimated according to circumstances, that must have relation to the future, at the period of assessment. Thepast is out of the power of contingency, and is not the subject of estimation.
    If the dower were to be assigned in the land itself," the widow would take the land after the decree of the Court; and the question would be, whether she was entitled to an account for the arrears of rents and profits since the death of the husband: and that is, in fact, the true question in this ease. She is intitled to have the land, or its equivalent, estimated at the same time ; and one-third of the principal sum, for which the land sold, is the equivalent for one-third of the bond. The purchase money was substituted in place of the land, at the time of sale; and the interest, when the money was payable, or began to hear interest, came instead of rents and profits: and the same question arises, is she entitled to an account for the arrears of interest.
    In the case of Heyward v. Cuthbert, 1 M’C. 3S6, it was decided, that a widow, to whom dower had been assigned, was not entitled to damages for the detention of the dower. The grounds of that decisión were, that by the English law, no damages were recoverable in dower, until the statute of Merton, 20 Hen. 3, c. 1, and that statute is not of force in this State. That, however, was a decision in a Court of law; and there is no doubt, that the Court of Chancery, ever since it has exercised jurisdiction in cases of dower, has uniformly given an account for the arrears of rents and profits. But as this jurisdiction has been exercised only since the passing of the statute of Merton, it is perhaps not perfectly clear, whether the account has been allowed in conformity to the statute, or on distinct equity principles. This statute being in existence, there was no need to explain this matter in the decided cases; but on referring to the cases, I am sufficientiy satisfied, that the account for rents and profits has been allowed on distinct equity principles, entirely independent of the statute.
    Courts of Equity give an account of rents and profits in dower, when no damages could be recovered at law under the statute. In the case of Dormer v. Fortescue, 3 Atk. 130, Lork Hardwicke observes, that the Court will give the dowress profits from the time, not only of her demanding, which is the time from which she is to have it in her writof dower, but will give ittoherfromthe time ofhertitle accrued; although the statute gives her damages only from the time of her demand. Lord Coke, also says, 1 Inst. 32 b. “ if the wife have not requested her dower, she shall lose the' mean values and her damages.” But “ it must be supposed that the dowress has nothing to live upon but her dower, and the mesne profits are her subsistence from the time of her husband’s death ; and the course of this Court seemed, therefore, to have been to assign her dower, and universally to give her an accountfrom the death of her husband.” By the Master of the Rolls, in Curtis v. Curtis, 2 Bro. C. C. 632. In Banks v. Sutton, 2 P. "Wins. 719, which may be authority, as to this point, the decree was for “the arrears of dower from the death of her husband, she allowing the third of the interest of the mortgage money unsatisfied at that time, and her dower to be set out if the parties differ.” See, also, Oliver v. Richardson, 9 Ves. 222. In cases where the deforciant is dead, before the right to dower is established, so that the widow’s right to an action for damages under the statute, is gone at law, the Court will give arrears of rents and profits. That was the case of Curtis v. Curtis, 2 Bro. C. C. 620. So 
      if the widow should die before she had established her right to dower, equity will decree an account in favour of her personal representative. 1 Fonbl. 22.
    The decreeing an account for arrears in dower, seems to rest on the same grounds precisely, as the decreeing an account for the rents and profits of real estate. The practice of the Court to give an account of rents and jjrofits does not depend on any statute, but on general principles of equity. Lord Haidwicke puts them both on the same footing in Dormer v. Fortescue. He thinks there must be some ground of equity, to give the Court jurisdiction ; as trust, or infancy, in cases of real estate, or an outstanding term, or discovery in cases of dower : but having j urisdiction, the Court will give complete relief by decreeing an account, in general, from the time the title accrued, although under special circumstances, the Court may restrain it. Perhaps it would be more correct to speak of these things as identical, rather than resembling. In dower the widow recovers real estate ; and in both cases the Court proceeds on the principle, that one party has received what the other was entitled to.
    The reason why damages were not recoverable in dower, previously to the statute of Merton, as explained in Curtis v. Curtis, 2 Bro. C. C. 630, was, that damages were not recoverable in any real action. The writ of dower, and the writ of right of dower, were real actions. There is no doubt, that the widow was, at law, entitled to the land, that is, to the use, possession, or rents and profits, from the death of her husband. Magna CJiarta expressly provided, that dower shall be assigned within forty days, although, as Lord Coke says, that act was of little effect, for that no penalty was thereby provided, if it were not done. Co. Litt. 32 b. The right at law was perfect, but, for the technical reason mentioned, there was no remedy. Itis, however, the peculiar office of equity, to afford relief, when the law gives a right, but the rigour of legal forms affords no remedy, or an inadequate remedy. I cannot doubt, that, independently of the statute of Merton, referred to, a Court of Equity will give an account for the arrears of i ents and profits in dower.
    This view of the subject also conforms to the provisions of the Act of Assembly of 1824, amended by that of 1825. The rule established by these acts for assessing dower, against a purchaser of the land, is the value of the land at the time of alienation, with interest from the time the widow’s right to dower accrued. Acts of 1824, p. 24, and of 1825, p. 20. This is in effect giving arrears, or damages for detention. In this case I suppose the value of the land at the time of alienation to be ascertained by the price at which it sold. The widow is entitled to the value of her dower in that, with the interest which has accrued since her husband’s death.
    It is ordered and decreed, that it be referred to the commissioner, to take an account of the interest which has accrued on the principal sum for which the plantation, Keithfield, was sold by John Keith, deceased, to the defendant, R. O. Anderson, after satisfying the mortgage executed to James Withers, and afterwards assigned to the said R. O. Anderson, since the death of the said John Keith, up to the time when the account shall be taken; includingas well the amount bid by the said R. O. Anderson, at the commissioher’s sale, as the additional amount stipulated by contract, to be paid by the said R. O. Anderson, to the said John Keith: and that one-third of the said amount of interest be paid to the complainant for her arrears of dower. And it is further ordered, that it be referred to the commissioner, to assess the value of the complainant’s right of dower in the said principal sum, after satisfying the mortgage as aforesaid.
    From this decree the defendant appealed.
    Dunkin, for the appellants,
    cited 2 Saund. 44, note (g.) and Hey-ward v. Cuthbert, 1 M’C. 386. It is quite clear, that at common law there were no damages in dower; and that the right to recover them was given by the statute of Merton, which is not of force in this State. If the demandant is compelled to go into Chancery to make out her title, that Court will allow her arrears of dower; but this is in conformity to the rule of the statute. 3 Bro. C. C. 631. There is no case in which the arrears have been allowed on the ground of original chancery jurisdiction. In Dormer v. Fortescue, 3 Atk. 130. Lord Hardwicke is made to say, that the-Court allows arrears of dower from the death of the husband; although the statute gives damages only from the time of the demand. But this is a mistake of the reporter. 3 Bro. C. C. 633. The statute in express terms gives damages from the death of the husband to the day of judgment in dower. 1 Inst. 32 b, 33 a. The right to the arrears is given only by the statute, aud as the statute is not of force here, the right does not exist. Equity may give a remedy, where the law gives a right; but where there is no right, there can be no'remedy. The acts of 1824 and 1825 cannot apply to this case, for the rights of the parties were fixed and vested before those acts were passed.
    King, contra,
    cited Harvey v. Harvey, Sir Thos. Raym. 366. There is a distinction between damages in dower, and mesne profits. The former were given by the statute of Merton, but the right to the latter is a common law incident to the title of the dowress : and it is on this ground that equity decrees án account for rents and profits. 1 Mad. Ch. 243. "Wakefield v. Child, cited, 1 Fonbl. 159, note (k.) The Court in Heyward v.Cuthbert, decided nothing more, than that the demandant could not recover damages in her action of dower, which is in the nature of a real action; but non constat, that she could not maintain a separate action for mesne profits. ■ If the right to the arrears existed, the acts of 1824 and 1825, which relate to the assessment, do apply to and govern this case.
   Colcock, J.

delivered the opinion oftfye court.

We concur in the decree of the Chancellor, and should nót have thought it necessary to add any thing to the elaborate view, which he has presented of the doctrines involved, but for the earnestness with which the position maintained in the decree, that an account for mesne profits is allowed by Courts of Equity, in suits for dower, on distinct principles, and independently of the statute of Merton, has been controverted. This doctrine, it is insisted, is unsupported by principle or authority, and is directly contrary to the decision in Heyward v. Cuthbert: but we are of a different opinion, and I think it will not be difficult to shew, that the decree is as correct, on principle, in the particular objected to, as it is conceded to be upon all the other points involved in it.

I am very much inclined to think that the question is nothingmore after all, than a dispute about words. At this day “ damages” for the detention of real property, are usually understood to' comprehend mesne profits, and, indeed, they are generally regarded as convertible terms : but there is a distinction between them, which seems always to have been admitted, and which is even yet recognized in the action of ejectment; in which, although the plaintiff is entitled to recover damages, yet it is only for the injury sustained by the ejectment, which, being fictitious, the damages are merely nominal: and for the recovery of mesne profits, another ■ action is necessary. ^ statute of Merton then gave the widow any thing, to which she was not before entitled, with the exception of a new remedy, seems to have been a right to damages as distinguished from mesne profits, which latter are the fruits of her title to the land, and to which she must be as much intitled, as to the land itself. And it strikes me that the whole difficulty has arisen from confounding damages, and mesne profits; which has led to the opinion, that because the statute gave the former, the widow can have no right to the latter, except by the provisions of the statute. Why is not a widow, who is kept out of possession of the land, which ought to have been assigned to her'for her dower, as much entitled to the mesne profits, on principles of equity, as any other proprietor who has been wrongfully deprived of his possession] The difficulty that laid in the way of her recovery of mesne profits at common law, was not peculiar to her, but was common to all persons, whatever their title, who were compelled to recover possession by action. The defect was not in die right, but in the remedy. Laud could only be recovéred by a real action, and in such actions nothing could be recovered but seizin, or possession. It was an improvement upon the old law, which was only gradually, and partially, engrafted upon it, to permit, in some Cases, the recovery of damages, and mesne profits, together with the possession, in the same action. For instance, the statute of Merton for the first time enabled the widow to recover ’damages, as well as the possession; but it extends only to the writ of dower wide nihil hdbet, and not to the writ of right of dower. The reason given for this discrimination is curious, and is worthy of remark. Damages are allowed in the former action, it is said, because they are intended to be given for the detention. of the possession : and on writs of right, where the right itself is questionable, no damages are given, because no wrong done till the right be determined.” Jacob’s Law Die. Dower, 5. But although no damages can be given for the detention, yet surely when the right is determined, the mesne profits, which are the fruits of the right, and not damages for the detention, must accompany the right, although they cannot be recovered in the same proceeding by which the right is determined.

Under the statute of Merton, mesne profits may be recovered in certain cases, under the title of damages ; but yet damages for the detention, and the mesne profits, are always assessed separately, as appears by all the authorities. In the case of Harvey v. Harvey, Sir Thos. Raym. 366, the distinction between them is not only recognized, but made the ground of the judgment of the Court. In that case the tenant pleaded, that after marriage the husband settled other lands upon the demandant for her life, for her jointure, and that she, after his death, agreed thereto, and entered accordingly. The demandant replied, that it was a voluntary settlement of her husband, and traversed that it was not for her jointure ; and issue was joined thereupon. At the nisi prius the tenant made default, and a petty cape was awarded and returned, and judgment that the demandant have seizin; and the demandant suggested, that her husband died seized, and prayed a writ to inquire of the damages. The sheriff returned that he had delivered seizin of the lands particularly : and also an inquisition, finding that the lands were worth ¿6114, 11s. per annum, and that the husband had been dead six years and three quarters; and that the demandant had sustained damages occasione detentionis dotis ultra valorem proedictam, et ultra misas et custagia sua, ¿6195, et pro misis et custagiis, 20s. And upon this the demandant, gratis, released the ¿6195, and demanded judgment only for the 20s. And judgment was given, that the demandant recover tarn valorem tertice partis prcedictce, from the death of her husband, which comes to ¿6257, and the 20s. and ¿611, de incremento, in all ¿6267 ; and the tenant brought a writ of error, and assigned several things for error, which, upon diminution alleged, were made good: and there being a variance between the inquisition and writ of seizin, the writ of seizin and execution were held erroneous, and thereupon a writ of inquiry, and the value of the land found; and it was alleged, that there ought to be no writ of inquiry,, because the damages were released by the demandant. But upon consideration had of the record, the whole Court resolved, that the release was only of the damages sustained occasione detentionis dotis, and not of the mesne profits of the land, for they are two distinct things, as appeared by the precedents. Co. Litt. 32 b. Belfield v. Rous. So, too, Lord Coke, in the place referred to, and in several others, continually distinguishes between the “mean values,” and “damages.” Co. Litt. 32 b, 33 a. Now this distinction so constantly observed, and the practical conclusion drawn from it in Harvey v. Harvey, are to my mind conclusive, that as far as mesne profits are concerned, the statute of Merton has never been regarded as giving a new right, but a new remedy only.

It seems obvious, therefore,, that the practice of the Court of Chancery is founded on this- distinction; for I can- perceive no other ground on which the jurisdiction, as it has been exercised, can be maintained, consistently, with principle-. That Court has never restricted the account for rents and profits; to cases within the statute-' of Merton; and its jurisdiction, therefore, cannot be- supported on that statute : but stands, and can stand, only on its acknowledged competency to afford a remedy, where, the law gives aright, but no-remedy, or an imperfect one. The case of Heyward v. Cuthbert does not controvert this conclusion. That was a proceeding at law, and the decision went no further than that damages could not be recovered, eo nomine, in that proceeding: and for the reason that the-statute of Merton was not of force here. I am- not sure, indeed, that if the statute were of force, it could have applied to that proceeding. But of one thing I am sure, that there is nothing in that case, which conflicts with the decree in this.

We are, therefore, of opinion, that the decree is right; and that the appeal must be dismissed.

Decree affirmed*  