
    Fowler v. Griffin and others.
    Upon the assignment of dower to a widow, the seizin in fact of the heirs, intervening between the death of her husband and the assignment, is displaced, and the dowress is in, by relation, from the time of the death of her husband.
    Consequently, it is not competent for the heirs to make partition, during the intermediate period, of the land so assigned,
    A void assignment of dower, made by commissioners appointed by the court in a partition suit, may become valid and obligatory upon the heirs, by the widow’s entry upon the lands assigned, and by the heirs' subsequent adoption and ratification of the eornmisrioners’ proceedings.
    ft an assignment of dower become operative simultaneously with a judgment for the partition of the lands of the dowress* husband, it cannot, have the effect to defeat the latter.
    In such, a case, although the seizin of the heirs, in the lands allotted for dower, becomes divested at the instant of the judgment, yet during that instant they are seized ; and that is sufficient to support the partition.
    The fact that, in a partition suit, under the act of April, 1813, for the partition of lands, one of the parties is an infant, and appears by attorney, instead of a guardian, renders the proceedings irregular and voidable ; but will not make them void.
    in suits for partition, under that act, infants were to be notified and served, in the first* instance, like adult-, and jurisdiction being acquired by such notice and service, irrespective of infancy, the. omission, subsequently, to appoint a guardian for an infant, did not affect the jurisdiction of the court to pronounce a judgment in the suit.
    Although the owner of a reversion in lands, subject to a life estate therein, ⅛ not seized in fact during the pendency of the life estate, and therefore is not a stock of descent, in respect to the lands, yet bis right and title are alienable. They arc a vested estate in the land itself, which he can convey absolutely.
    (Before Oakley, Ch. J., and Vanderpoel and Sandford, J.J.)
    Nov. 23, and Dec. 15 ;
    Dec. 22, 1849.
    This was a case agreed upon by the parties, and submitted to the judgment and decision of the court, under the code of procedure.
    The facts stated were as follows: — On the fourth day of November, 1806, Janies Walker died in the city of New York intestate, seized among other property of the lot now known as number sixty-two Walker street, and leaving him surviving his widow and six children, viz. James 11. R., Rachel Ann, Isaac. Washington, Mary, and Jane.
    Ann, (the widow of James Walker,) married Thomas Dema-rest in 1812. Rachel Ann Walker, the plaintiff, was born January 2d, 1794, and was married to Gilbert Ogden Fowler, Dec. 21, 1813. Isaac Walker was drowned at sea, unmarried and without issue, in 1813.
    On the eighteenth day of July, 1814, James M. R. Walker presented a petition in the Hew York Mayor’s court, setting forth that he, together with his three sisters and his brother Washington, were each entitled to one fifth of the lands, of which his father died seized; that his mother Ann, wife of Thomas Demarest, was entitled to an estate of dower in the same real estate, and asking for a partition of the same.
    Isaac Yanderbeck was appointed by the court, in May, 1814, guardian of the minors, Washington, Mary, and Jane Walker, and appeared for them in the suit. Gilbert Ogden Fowler appeared as attorney of record for himself and wife. Demarest and wife appeared by attorney.
    In July, 1814, the court adjudged the rights of the parties in the real estate to be as set forth in the petition, and appointed «three commissioners to make partition. On the 25th of October, 1814, the commissioners reported that they had made partition of such real estate, in the manner following, viz. That, they had allotted and assigned one third of the real estate to Mrs. Dema-rest, (formerly Ann Walker, widow of James Walker, deceased,) for and during her natural life, consisting of certain lots and parcels of land described in their report by metes and bounds ; among which was lot number four, on the northerly side of Walker street. And that they had allotted and assigned to each of the five children of James Walker, subject to the life estate of Mrs. Demarest therein, one fifth part of the lands so allotted to Mrs. Demarest for her dower; the portion set off' to each child being particularly described in the report. Among the parcels allotted and assigned to James M. R. Walker, was lot No. four on the northerly side of Walker street, which had previously been assigned to Mrs. Demarest for life. The commissioners then divided the remaining two thirds of the estate, among the five children, share and share alike.
    This report was filed and confirmed, and judgment was entered upon it, November 23d, 1814.
    All the parties held the several parcels of land thereby allotted to them respectively, and the validity of the partition was never questioned by any of the parties, prior to the twenty-seventh of December, 1843.
    The premises in question are tlie lot described as Number four Walker street, in the report of the commissioners in partition, which was allotted to James M. R. Walker.
    February 20, 1815, Isaac Vanderbeck was appointed, by the chancellor, committee of the person and estate of James M. R, Walker, a lunatic ; and on the first of May, 1815, an order was made, authorizing the committee, with James Lynch, a master in chancery, to sell all the real estate of the lunatic, except that part set apart for his mother’s dower.
    On the third of October, 1817, another order was made, allowing the sale of the property of the lunatic in which his mother had an estate of dower, on his mother releasing to the purchaser, &c.
    Thomas Demarest and Ann his wife, bydeed dated November 3d, 1823, conveyed to Isaac Vanderbeck, in trust, all the estate in which she had any interest, which deed was acknowledged and recorded.
    Mary Walker was married to Azel S. Roe in 1819, and died in 1824, leaving one child, Ann Olivia Roe.
    Jane Walker was married to Azel S, Roe in Sept. 1825, and died January 22d, 1826, without issue.
    Isaac Vanderbeck, committee, &c., of James M. E. Walker, a lunatic, Thomas Bolton, master in chancery, and Isaac Yarn derbeck, as trustee, (fee., of Ann Demarest, by deed dated March 27th, 1827, conveyed to James Bailey, the premises in question. This deed was acknowledged and recorded. The premises, through several mesne conveyances, became vested in the defendants, under this deed.
    Mrs. Ann Demarest, (widow of James Walker, deceased,) died May 20, 1835.
    
      James M. R. Walker died a lunatic, May 21, 1843, leaving as his heirs at law, his sister, the plaintiff; his brother, Washington Walker; and his niece, Ann Olivia Roe. Gilbert Ogden Fowler died, Dec. 27, 184-3.
    The plaintiff claimed to be seized in law of the one equal undivided third part of the lot and premises No. sixty-two Walker street, and to be entitled to recover judgment therefor, together with one third of the income of the same for six years.
    The defendants insisted that the plaintiff had no interest whatever in the premises, and that James M. R. Walker, from whom they derive their title, was seized in fee simple of the same.
    
      E. Sandford, for the plaintiff.
    I. Ann Demarest had an estate for her life in the premises in question as tenant in dower. She took this estate in dower as an emanation from the estate of her then late husband J ames Walker, and not as a freehold created by his heirs. Upon the assignment of her dower, the seizin of the heirs intervening between the death of her husband and the assignment, was displaced, (Coke Litt. 15 a,) and the law supposes her to be in, by relation, from the dqafh of her husband on the fourth of November, 1800. Therefore it was not competent for the heirs to make partition. (Park on Dower, 339, 343 ; Watkins on Descents, 2d ed. 65, 68.)
    II. On the death of Ann Demarest, on the twentieth May, 1835, the estate descended to those who could make themselves heirs to the person last actually seized. The estate in dower suspended the descent. While the intervening estate continued, the person seized was not a new stock of descent. (3 Johns. Gas. 214, Jackson v. Gomer; 13 J. R. 260, 262, Bates v. Schroeder ; 16 ibid. 96, 99, Jackson v. Hilton; 4 Kent’s Com. 387, 205.)
    III. James Walker, the elder, -was the ancestor or person last seized, and-the case shows that the plaintiff deduces her title to the premises in question immediately from him as one of his heirs at law; and that she is entitled to one equal undivided third part of the premises in question.
    
      IV. Aim Demurest having been the tenant of the freehold, under an assignment of her dower, from the death of her husband James Walker, in 1806, until her decease in 1835, there was no lawful authority in the mayor’s court of the city of New York to make a partition of the lands assigned to her for her dower, during the continuance of her estate in dower therein, among the heirs at law of James Walker, deceased. The proceedings for that purpose were wholly inoperative against the plaintiff, and those to whose rights she has since succeeded, and did not change nor extinguish the rights which she and they had respectively in the premises in question, as the heirs at law of James Walker, the elder, deceased. The plaintiff' is entitled to recover her proportion of the premises in question in tliis suit. (Co. Litt. 147, a, sect. 247; do. 169, sect. 250 ; 1 E. L. of 1813, 507, sec. 1.)
    V. Judgment should be given for the plaintiff for an equal undivided third part of the premises.
    
      D. Lord, for defendants.
    I. Upon the death of James Walker, one equal, undivided sixth part of his estate, including the premises in question, descended to each of his six children, subject to the dower estate of their mother, Aim Walker, afterwards the wife of Thomas Demurest.
    II. The descent was not suspended by the intervention of this dower estate, but the heirs immediately acquired a seizin in law of the estate descending. The only effect of the dower estate preventing the heirs from acquiring actual possession was, that had James M. E. Walker, or any of bis brothers or sisters, died before they acquired such possession, or the title of the tenant in dower was released, and not having conveyed away their estate or interests in the property, the estate would then have descended to the heirs of James Walker, the original ancestor then living, and not to the heirs of James M. R. Walker, or his brother or sister so dying. In other words, actual possession or a release from the tenant in dower, was necessary to constitute the heir the new stock of descent, but was not necessary to vest the estate in him. (Chitty on Descents, 55, title “ SeizinIbid, c. 4, § 2, “ Seizin of Ancestor Stringer v. New, 9 Mod. 363 ; Co. Lite. 15 a., 53 b., 191 b., 266 b.; Littleton’s Tenures, § .447, 448, 3 Wooddeson, 45; Step. Touchstone, 329; Bao. Ab., Descent, C.; Cook v. Hammond, 4 Mason, 467 ; Vanderheyden v. Crandall, 2 Denio 9, and cases cited ; Com. Dig. Waste, c. 2.)
    When the partition was commenced, the heirs were in actual possession. Their including the assignment of dower in the same proceeding, did not affect the jurisdiction of the court. The effect was the same as if made after partition.
    III. The conveyance by the committee of the estate of James M. Ii. 'Walker, a lunatic, and the master in chancery under the chancellor’s order in lunacy, to James Bailey, in March, 1827, passed to Bailey, the grantee, the vested remainder in fee of James M. R. Walker in the property, subject to the life estate of Mrs. Demurest, the widow, for her dower; and the widow by her trustee uniting in the conveyance and releasing her dower, perfected the estate, which Bayley, the grantee, acquired as an estate in possession, and made it a fee simple absolute. (See eases cited above.)
    IV. The appearance of Rachel Ann Fowler, who, at the time of the commencement of the partition suit in the mayor’s court, was a minor of about twenty years of age and a married woman, by her husband, who was an attorney of the court and appeared as attorney of record for Inmself and wife, was, if any thing, error merely, for which the judgment might have been reversed on writ of error, and not a jurisdictional defect malting the judgment void. The judgment is therefore conclusive against the claim of Mrs. Fowler; never having been reversed. (1.) The mayor’s court was a court of record of general jurisdiction, and although the proceedings in partition were regulated by statute, this was not a case of summary or statutory jurisdiction merely, but the proceedings were according to the course of the common lawn (2 Revised Laws of 1813, p. 503, § 5 ; Ibid. p. 141, § 3 ; 1 E. Laws of 1813, p. 509 ; Foote v. Stevens, 17 Wend. 483, and cases cited; Griejnon v. Astern, 2 Howard’s Rep.) (2.) The judgment is void, only when the court has failed to acquire jurisdiction of the person by the service of process or notice of appearance in any shape. Wherever there has been an actual appearance, however erroneous, it must be corrected by writ of error, and the judgment is good until reversed. (Foote v. Stevens, 17 Wend. 483, and cases cited; Bloom v. Burdick, 1 Hill 142 ; 11art v. Seims, 21 Wend. 40; Thompson v. Talmie, 2 Peters 157 ; 2 Hill 333 ; 16 Wend. 48 ; 2 Hill 391; 2 Saund. If. 203; 8 Cow. 361.)
    V. If the judgment in partition were void, it would not help the plaintiff, as in that case the conveyances by the committee of James M. R. Walker and the trustee of Mrs. Demarest to Janies Bailey, passed all James M. R. Walker’s interest in the property.
   By the Court.

Sandford, J.

The plaintiff’s first point is undoubtedly correct, that upon the assignment of dower to the widow of J ames Walker in the premises in question, the seizin in fact of James M. R. Walker, (or of the heirs of James W., if the partition were to be laid out of view,) was displaced, and the dowress was in, by relation, from the time of the death of her husband. But we think the conclusions which the plaintiff derives from this proposition are entirely erroneous.

1. As to its effect on the partition. The assignment of dower was made by the commissioners in partition, as a part of their supposed duty under the order of the court in the partition suit. As a judicial act, the whole thing was nugatory, because it was not authorized by the statute of partition then in force. The assignment derived its vitality, not from the order of the court directing the commissioners to make it, nor from the commissioners signing their report in which lands were allotted for dower, nor from the judgment of the court confirming the report and directing the partition to be made and the dower to be allotted accordingly. But the assignment of dower, thus made by the commissioners without authority, became valid and obligatory upon tbe heirs, by the widow’s entry upon the lands assigned, and by the heirs’ subsequent adoption and ratification of the commissioners’ proceedings. We cannot infer from the interlocutory judgment of the court, which appointed the commissioners and directed both the partition and the assignment of dower, an authority from the heirs, who were parties to the suit, to the commissioners to make as their agents, a parol assignment of dower, which of itself would defeat the principal object of the partition suit. The court, acting, it is true, for all the parties, made an erroneous order respecting the dower. On holding that order to be of no effect, we have no right to imply from it an authority for the officers of the court to do by parol and in pais, what the parties never intended should be thus accomplished.

Their subsequent adoption of the partition and assignment of dower, doubtless, precluded them from disturbing the latter; but this is on a very different ground from that of a previous authority to make the assignment. The result of our reasoning is, that when the judgment of partition was made, there had been no assignment of dower effected ; the heirs were still seized in fact, and the partition between them became effectual, unless the proceedings were defective, because of the infancy of the plaintiff. Before proceeding to that subject, we ought to add, that if the assignment of dower were held to have become operative simultaneously with the judgment of partition, it could not have the effect to defeat the latter. Although the seizin of the heirs in the lands allotted for dower became divested at the instant of the judgment, yet during that instant they were seized, and that was sufficient to support the partition.

2. The fact, that Mrs. Fowler was an infant, and appeared in the suit by an attorney, instead of a guardian, rendered the proceedings irregular and voidable, but it did not make them void. Without reference to the question as to the general or limited jurisdiction of the mayor’s court, or to the point that the proceeding was wholly of a statutory creation, and not a branch of the common law jurisdiction of the court; it is sufficient to say, that the act for the partition of lands then in force, did not make the appointment of a guardian for infants a preliminary to •the court’s entertaining the suit against them. Infants were to be notified and served in the first instance. (1 Rev. Laws 507, 511, § 2, 8.) Jurisdiction was thus acquired, irrespective of infancy, and an omission subsequently to appoint a guardian for an infant, did not affect tbe jurisdiction of the court to pronounce a judgment in the suit. On a writ of error, such an omission might have been fatal to the judgment, but never in any collateral suit or proceeding.

3. It was contended that James M. R. Walker, who became entitled to the premises in question in severalty, by the judgment in partition, subject to the widow’s life estate in the whole premises, never had any actual seizin of the same, and on his death without issue, the same descended to the heirs of his father, as the person last seized, of whom the plaintiff is one. And further, that the conveyance made by the committee of the estate of James M. R. Walker, did not transmit the estate to his grantee.

Although according to the common law, James M. R. W. was not seized in fact, from 1814 until his death, and therefore was not a stock of descent in respect of the lands in question, his right and title were alienable. They were a vested estate in the land itself, which he could convey absolutely. He had the freehold in law, although not in deed, (Litt. Ten. § 447, 448;) and such freehold would pass by his deed. (Co. Litt. 266 b, and 53 b; Shep. Touch. 222, 238.) The plaintiff’s error on this point consists in assuming, that because the descent was suspended duiing the pendency of the life estate, therefore, the power of alienation was suspended also. The latter consequence never ensued, when the reversion was vested in interest, although the feudal rules of descent, from time immemorial, established the former doctrine.

The plaintiff has failed to show any existing title to the premises, and there must be judgment for the defendants.  