
    Emily J. Kaufman, et al., v. Jeremiah Landers, et al.
    Widow’s Dower — Pleading by Widow’s Grantee.
    Before a grantee of a widow’s dower can be subrogated to the rights of the widow, he must sat up in his pleading that dower has not been assigned her out of her husband’s estate, and ask to be substituted to her rights. He must plead facts showing that she was entitled to dower.
    APPEAL PROM MARION CIRCUIT COURT.
    June 13, 1877.
   Opinion by

Judge Cofer:

In 1861, Jeremiah Landers bought the land in contest of Cooper and went to reside on it with his family. He continued to reside on it until his death in 1862, and his widow and children continued in possession until in 1864, when, having received a deed from Cooper conveying the land to her, she sold and conveyed it to Newton, who sold and conveyed it to Short. This suit was brought by the heirs at law of Landers to recover the land, and a judgment having beeji rendered in their favor this appeal is prosecuted from that judgment.

The evidence shows that a part of the purchase money was paid by Landers during his lifetime, and that the residue was paid by his widow after his death. Two grounds are relied upon for a reversal: 1st, That Mrs. Landers was entitled to dower in the land and that that right passed to her vendee, and therefore he should not have been turned out of possession of the whole tract. 2d1, That the widow, having paid a part of the purchase money, was entitled to a lien therefor on the land, and that Short is entitled, as her remote vendee, to be subrogated to her rights.

If Mrs. Landers was entitled to dower and has not had dower allotted to her elsewhere, and has not forfeited her right, the appellant Short might, by appropriate pleading, have been substituted to her right in that respect. But there was no allegation in the pleadings that dower had not been assigned her, nor prayer to be substituted to her rights. This court cannot know that the land in contest was all the land owned by her husband, and that she has not had dower assigned her out of his whole estate in other lands. If Short desired to claim her dower interest he should have set up facts showing that she was entitled to dower, and have thus presented to the plaintiffs an issue on that subject. Having failed to do so we cannot relieve him.

What has been said in regard to the supposed dower interest of Mrs. Landers may be said with regard to the alleged payment of purchase money by her. The facts should have been pleaded that proper issues might be made up. Proof of payments by her cannot, on the issue as made by the pleadings, be of any avail to the appellants.

Rountree & Belden, for appellants.

C. S. Hill, for appellees.

Judgment affirmed.  