
    Phebe Marble vs. John Lewis.
    An offer of judgment, in an action for the recovery of dower, for five and a half acres of the land claimed without further description, is too indefinite a foundation for -a judgment. A judgment according to the terms of- such an offer would be void for uncertainty. Nothing could be delivered to the plaintiff upon an execution issued on such a judgment.
    Such an offer of judgment, so far as the damages are concerned, should be for a sum certain, so that, if accepted, judgment for the amount can be at once entered.
    The rule is well settled, in this state, that when lands are alienated during coverture, by the husband, his widow is entitled to be endowed of such lands, amounting to one-third of the value at the time of alienation. Such was the rule before the Revised Statutes, and it was not changed by the revision.
    Where the whole premises were alienated during the lifetime of the husband, damages can be recovered only from the time dower was demanded; not from the death of the husband.
    
    In case of such alienation by the husband, the correct practice is, to ascertain, upon the trial, when the premises were alienated, and in case the value of the premises is greater at the time of trial than at the time of alienation, from causes other than improvements made subsequent to such alienation, upon the premises, to ascertain the value at the time of alienation; and the judgment should provide for admeasurement according to such value.
    The value can be more satisfactorily determined upon the trial than by the commissioners; but the question as to improvements is to be determined by the commissioners.
    
      Where all that appears in the case is that it was admitted, on the trial, that improvements had been made upon the land, and that the premises were more valuable than when the husband’s title passed from him, the only proper judgment is that commissioners be appointed, upon application to the court, to admeasure dower in the land, pursuant to the statute; unless it affirmatively appears that the lands were enhanced in value from other causes.
    A judgment for the unqualified recovery of one-third of the land is not warranted, in such a ease.
    ACTIOS" to recover dower in the premises described in the complaint, and damages for withholding the same. It was admitted that Sidney Marble, the plaintiff’s husband, was seised of said lands during coverture, and that she demanded her dower, before the commencement of this action. It was also admitted that on the 14th day of February, 1842, a judgment in the Supreme Court of this state was duly rendered against said Sidney Marble, by virtue of which such lands were sold, and the title in him divested, in 1843, and that the defendant is, and was at the time of the demand of dower and the commencement of this action, in August, 1862, in possession of said premises by virtue of the title thus acquired. It was further admitted that neither said Sidney Marble nor the plaintiff had been in possession ofj or exercised any control over, said premises since the sale under said judgment; and that Sidney Marble died in 1861. Upon these admitted facts, the justice before whom the action was tried decided that the plaintiff was entitled to judgment “ for one-third part of the lands described in the complaint, and thirteen dollars damages, for detention, or mesne profits.”
    The defendant appealed from the judgment.
    
      J. W. Smith, for the appellant.
    
      Bemis & Stevens, for the respondent.
   By the Court; Grover, J.

The court, upon the trial, had nothing to do with the offer of judgment served by the defendant upon the plaintiff. That offer only affects the question of costs; which question, as thus affected,- did not arise until the rights of the parties had been determined, and it appeared from such determination that the defendant was entitled to costs subsequent to the offer, (Code, § 385.)

These offers were not evidence upon the trial. The offer appears as part of the evidence given upon the trial, and from the opinion of the judge its effect appears to have been determined by him. I think that determination correct. The offer was too indefinite a foundation for a judgment. A judgment for the recovery of five anda half acres of the land claimed, without further description, would have been void for uncertainty. Nothing could have been delivered to the plaintiff upon the execution issued upon such a judgment. The same remark applies to the offer, so far as the. damages are concerned. It should have been for a sum certain, so that, if accepted, judgment for the amount could have been at once entered.

From the finding of facts by the judge it would appear that the offer was for a sum certain, viz., eight dollars, but from the offer found in the case it was for the rents and -profits of the five and a half acres, from the death of the husband. The case leaves it uncertain whether damages were awarded to the plaintiff from the death of her husband, or from the- time dower was demanded by the plaintiff. If the former, it was error; if the latter, it was correct. The land of which dower was sought to be recovered was alienated by the plaintiff in 1843, long before his death; and in case of alienation by the husband in his lifetime, damages can only be recovered from the time of a demand of dower. The defendant’s counsel insists that in such a case no damages at all can be recovered; but the statute expressly gives damages from the demand. (3 R. S. 33, § 20.) From the printed portion of the case it would appear that the damages were' computed from the death; but from the words added in writing, the computation may have been from the demand of dower only. To warrant a reversal of the judgment, error must affirmatively appear; uncertainty is not sufficient.

The more material question in the case is whether the judgment is correct in awarding the plaintiff one-third of the lands described in the complaint, or whether it should have provided for the recovery of land equivalent in value to one-third of the value of the land, as such value was at the time of the alienation by the husband, in 1843. The rule appears to be settled, in this state, that when lands are alienated during coverture, by the husband, his widow is entitled to be endowed of such lands amounting to one-third of the value at the time of alienation. Such was the rule before the ¡Revised Statutes. (Shaw v. White, 13 John. 179. Dorchester v. Coventry, 11 id. 509. Humphrey v. Phinney, 2 id. 484.) This rule was not changed by the revision. (Walker v. Schuyler, 10 Wend. 481.) The question is, whether, in such a case, in an action for the recovery of dower, the plaintiff is entitled to judgment for the recovery of one-third of the land, or whether the judgment should be for the recovery of land of the value of one-third of the value of the whole at the time of the alienation; and whether the judgment should settle the value at the time of alienation, and consequently the value to be recovered ? It is insisted by the plaintiff that although the rule may be as stated, yet the former is the judgment to be given, and that the commissioners to admeasure dower are to settle the question of the value at the time of alienation, and consequently the value of the land to be admeasured. I am not aware that this precise question has been settled, by any adjudication. The cases above cited from Johnson tend to show that in the former action of dower, previous to the ¡Revised Statutes, the extent of the widow’s right of recovery, in case of alienation by the husband during his life, was to be ascertained upon the trial, and fixed by.the judgment; otherwise the pleas demurred to were improper and should have been overruled. The case in the 10th of Wendell tends to show that in the action of ejectment for the recovery of dower, given by. the ¡Revised Statutes, as a substitute for the former action, the extent of the widow’s right was not fixed by the judgment, but was ascertained by -the ad-measurement of dower after judgment in the ejectment suit. The point does not appear to have been presented to the court in any form, but the case shows that the court ■ set aside the report of the commissioners, because they were not guided in the admeasurement by the, value at the time of alienation, but adopted the value at the time of the death. The point has not been decided, under the Code. I think the correct practice in case of alienation would be to ascertain, upon the trial, when the premises were alienated, and in ease the value of the premises were greater at the time of trial than at the time of alienation, from causes other than improvements made subsequent to such alienation, upon the premises, to ascertain the value at the time of alienation, and that the judgment' should provide for admeasurement according to such value. The value can be more satisfactorily determined upon the trial than by commissioners. There is no way that the latter can ascertain such value, except from the testimony of witnesses, and the statute has not, in terms, conferred any such power upon the commissioners. It does provide that where improvements have been made, such improvements, if practicable, shall be given to the owner of the inheritance; if not practicable to do this, that an equivalent for such improvements shall be given to such owner; thus conferring the power upon the commissioners to ascertain and determine by whom the improvements were made, and their value. It will thus be seen that the question as to improvements 'is to be determined by the commissioner's. In the present case I do not think the question as to the value of- the land at the time the title of the husband was extinguished by the sale on the judgment against him, necessarily arises. The presumption, in the absence of proof to the contrary, is that the value was substantially the same then as at present. The onus of showing that it was less was upon the defendant. The case does not show any exception to the ruling of the court in rejecting proof offered by the defendant, upon this point. All that appears in the case is that it was admitted that improvements had been made upon the land, and that the premises are more valuable than they' were when the husband’s title passed from him, in 1843. For aught that appears, the increase of value is in consequence of the improvements. The improvements, we have seen, fall within the power of the commissioners to determine. The judgment rendered by the judge, in this respect, was that commissioners be appointed upon application to the court to admeasure dower in the land, pursuant to the statute. This was the only proper judgment, unless it affirmatively appears that the lands were enhanced in value from other causes. The judgment actually entered is not warranted by the order of the judge. That judgment is for the unqualified recovery of one-third of the land. An appeal from the judgment is not the proper mode of correcting this error. It should be done upon motion at special term. Ho question is made but that the plaintiff- was entitled to costs, unless precluded by the offer of judgment. We have already seen that the offer in this case was insufficient for that purpose.

[Erie General Term,

September 2, 1867.

The judgment should be affirmed.

Ordered accordingly.

Daniels, drover and Marvin, Justices.}  