
    Carmichael vs. Carmichael et al.
    
    1. Dower is connected with and inheres in the title of the heirs, and that which bars the right of the heirs bars the widow’s right to dower.
    2. "Where the land of the deceased husband was sold under a void judgment and the possession voluntarily relinquished by the widow, who failed to assert her right to dower by suit for twenty years, it is held that she had lost her right.
    Jane Carmichael filed this bill in the Chancery Court at Jonesborough, against D. Carmichael and Willliams, on the 10th October, .1842, for dower and damages.
    Archibald Carmichael died in 1819, seised and possessed of three hundred and thirty-six acres of land in Washington county, leaving the complainant his widow, and six children. Kyle recovered judgment against the administrator of A. Carmichael in 1820, for $3473, in the County Court of Hawkins; and there being no personal estate' to satisfy the Ji.fa. a sci. fa. on the suggestion of real estate descended to the heirs, issued, and service thereof was acknowledged by the guardian of the heirs, who were all minors. Judgment was taken by default against the heirs on the sci. fa. and the land was sold on the 20th November, 1820, by the sheriff, and purchased by Daniel Carmichael, and by him sold and conveyed by deed to Williams in 1821. In 1823, the sheriff made a deed of the land to Carmichael. It does not appear that the widow resisted the sale of the land under the judgment against the heirs, or that she set up a claim to dower. She relinquished the possession of the land voluntarily.
    The bill charges, that she set up her claim to dower at the time of sale, but was induced to believe by the defendant Carmichael that she had no right to dower. This is denied by the answer, and not proved. The bill charges, that the land was purchased at $1200, that it was worth $2800, and that defendant Carmichael bought, as the friend of complainant, and promised to sell again and pay over to her all he should get over the sum of $1200. This is denied in the answer, and is not sustained by proof.
    It was tried on bill, answer, replication and proof, at the May term, 1844, by Chancellor Williams. He was of the opinion that the sale of the land under the judgment was void, that the statute of limitations did not bar her right of dower, and appointed commissioners to lay off dower, and ordered an account to be taken of rents and profits thereof from the death of A. Carmichael.
    The defendant appealed.
    
      T. A. R. Nelson, for complainant.
    1. The sale of the land was void because there was no personal service of scire facias upon the heirs. Combs SfHayne vs. Young's widow and heirs, 4 Yer. 218; Simmons vs. Wood, 6 Yer. 522; Crutchfield vs. Stewards lessee, 10 Yer. 237.
    
      2. The widow’s right to dower is not barred by time or the statute of limitations. Guthrie vs. Owen, 10 Yer. 339.
    3. Damages for the detention of dower may be assessed in chancery. London vs. London, 1 Hum. 13.
    
      R. J. & J. A. McKinney, for defendant.
   Geeen, J.

delivered the opinion of the court.

This case differs widely from the case of Guthrie vs. Owen, (10 Yer. 339,) in its facts, and consequently the decision of it must be controlled by entirely different principles.

In that case, Owen held under the heirs, and was clothed with the title of the heirs, and- was consequently held to be in no better situation as regards the widow’s right of dower than the heirs would have been. In this case, Williams holds under a deed from Daniel Carmichael, made when he did not pretend to have any title, and consequently, unless Carmichael after-wards became vested with the title of the heirs, the possession of Williams, for twenty-five years, has been held under the deed of a stranger to the title, and adversely to the heirs. But the bill alledges, and so the fact is, that the proceedings by sci. fa. to subject the land of the heirs to the satisfaction of the judgment against their administrator, were wholly void, the sci.fa. not having been served on them, but on their guardian only. Combs vs. Young, 4 Yer. 218; Simmons vs. Wood, 6 Yer. 522; Crutchfield vs. Stewart, 10 Yer. 257. Williams’s possession under the Carmichael deed is therefore a bar to the right of the heirs, or such of them as were twenty-one years of age three years before this bill was brought; and as the right to dower is connected with and inheres in the title of the heirs, that which operates as a bar to their title is a bar to the right of dower.

But we think if the proceedings against the heirs had been regular, so that the defendant Williams’s possession had been taken and held by virtue of a title derived from the heirs, the circumstances of the case are such as that, coupled with the great length of time that has elapsed, ought to repel the complainant’s right to dower. She admits, in her bill, that she concurred in the sale of the land, and voluntarily relinquished possession of the premises. True, she 'alledges that she did so under the influence of ignorance of her rights, and delusive and false promises of defendant Carmichael; but we must regard her as having knowledge of the law of her case, and the allegation of fraud is denied and not proved.

Note. — Where dower has not been assigned to a widow in the lands of her deceased husband, a possession of seven years by the heirs or those who come in under them will not, by virtue of the act of 1819, ch. 23, sec. 2, bar her right thereto. Guthrie et ux vs. Owen's heirs, 10 Yerger, 339.

In South Carolina' it is held that the statute of limitations will protect a purchaser against a claim of dower as well as against any other claim. Boyle vs. Rowand, 3 Des-aus. 555.

in New Jersey an action of dower is barred after twenty years. 3 Harrison, 107.

In Maryland it is held that the statute of limitations forms no bar in equity to the claim of dower. 2 Gill & Johnson, 468.

By the English law, the wife’s remedy by action for her dower is not within the ordinary statutes of limitation. 4 Kent, 69. If dower be not assigned to the widow during her life, the right is extinct. 4 Kern, 60, note.

By the revised laws of New York, dower must be demanded within twenty years from the death of the husband or from the termination of certain disabilities mentioned in the statute, or the claim is barred.

We have then the case of an agreement of a dowress for the sale of the land, a voluntary relinquishment of possession, and a forbearance to assert her claim to dower for more than twenty years. The defendant Williams, too, purchased under the influence of this abandonment of her claim for dower, and has for twenty years held possession of the land so purchased, in the full confidence that he had a good title, free from all incum-brance. -

Under these circumstances, we think it would be inequitable now to permit the complainant, through the aid of this court, to assert a right thus abandoned, which she has permitted to lie dormant so long.

The decree must be reversed, and the bill dismissed.  