
    Bank of the United States v. Mary Dunseth.
    Under the statute of Ohio now in force, the petitioner in dower can not recover damages.
    The manner of assigning dower is left to the discretion of the court.
    By the act. of 1831, the cost in proceedings for the assignment of dower are to he paid, one-third by the petitioner, and two-thirds by the owner of the inheritance.
    This is a bill of review from the county of Hamilton.
    The original case was decided in this court, in 1833 (6 Ohio, 76), when the right of the plaintiff was established, and the case remanded to the Supreme Court of Hamilton county, for the assignment of dower.
    The decree finally made gave her:
    I. The sum of $433.81, being the annual value of the estate, since filing her petition.
    II. The sum of $110 per annum out of the annual rents, issues, and profits.
    III. Costs.
    Storer & Fox, for the plaintiff:
    We insist that the court erred in allowing damages, inasmuch 19] as none are allowed by the statute. The allowance of *damages in dower, we suppose, is a matter of statute regulation, and can only be claimed when clearly provided for by the statute.
    It is clear, that at common law no damages could be recovered in an action of dower, because the action of dower is classed among real actions, in which no damages could be recovered.
    By the statute of Magna Gharta, dower was to be assigned in forty days; but Coke says, “ of little effect is that act,” for “that no penalty was thereby provided if it were not done.”
    The statute of Merton, however, provided for the recovery of damages from the death of the husband, but this provision only applied to cases where the husband died seized; and to this day damages can not be recovered of the alienee of the husband, except from the time an actual demand of dower is made. For it is said the widow “ can lay no default, in the feoffee, till she demand her dower upon the ground, and that the tenant be not there to assign it, or if he he there, that he will not assign it; for he that hath the possession of land whereunto any woman hath title of dower, hath good authority as against her, to take the profits till she require her dower.” Park on Dower, 301.
    As the right to damages depends altogether on statute regulation, if our statute has not provided for the recovery of damages in this case, this court can not decree damages.
    We have carefully examined the legislation on this subject, from the ordinance until the present time, and find that it has not been uniform. By the ordinance, no dower was allowed except in the estate of which the husband died seized, and on this subject the law of the ordinance could not be changed except by the legislature of the territory, and that the legislature did not act on the subject during the existence of the territory.
    The first act of Ohio, June 19, 1804, only gives dower in premises of which the husband died seized, and no damages are provided for.
    The act of February 12, 1805, gives damages from the time of demand made.
    *The act of January 26, 1824, makes no allowance for the [20' recovery of damages in any case. If, then, the right to recover damages depends upon statutory provision, and no such provision has been made, of course the court erred in decreeing damages, and the decree ought to be reversed.
    There is another very important question involved in the cause.. It is this: Can the court decree a precise sum as the amount of dower with which the estate shall stand charged ?
    Eents are continually fluctuating — real property, in times of prosperity, is worth a great deal more than in times of adversity. Should the property be set off by metes and bounds, the widow-shares in this rise and fall. But where a certain sum is decreed, she is freed from any of these fluctuations, and according to the principle of this decree, if the whole property should not produce the amount allowed to the widow, she must have her $110, or the property is subject to be sold. This appears to be incorrect. She is entitled to one-third of the annual value, but she is not entitled to more. If she was entitled to dower in a mill, it would be of the third dish. Her claim ought to be for one-third of the rents. It appears difficult exactly to decide how the decree ought to be worded.
    W. R. Morris, for the defendant:
    At common law, the widow could recover no damages; but equity has given her damages ever since the court of chancery has exercised jurisdiction in cases of dower. Curtis v. Curtis, 2 Bro. Ch. 620 ; 1 Story’s Eq. 580; 4 Kent Com. 63.
    In New York, the widow is entitled to mesDe profits from the time her title to dower accrued. Swain v. Perrine, 5 Johns. Ch. 487.
    Aside from the general doctrine of equity, our statute gives the court ample power to decree damages. It authorizes the court, “to give such decree in the premises as shall seem just and consistent with the rights of all the parties interested therein.” 29 21] Ohio L. 251, sec. 9. The court will not *so construe this act as to suffer the tenant to delay the assignment of dower until a final ■decree, and then give *him the benefit of his own delay. The ■legislature intended to authorize the court to do justice between 'the parties.
    S. P. Chase, in reply:
    The case of Curtis v. Curtis, 2 Bro. Ch. 631, does not support the position of the defendant. On the contrary, it merely adopts .and carries into execution the statute of Merton.
    In Swaine v. Perrine, 5 Johns. Ch. 487, there was a decree for rents and profits, but that decree rests upon a statute of.New York, which, in express terms, gives the widow damages. N. Y. Rev. Stat. 734, sec. 19.
    
      Section 9 of our statute, relied upon by the defendant’s counsel, merely authorizes the court to render such a decree as may be consistent with the rights of the parties. It does not permit the court to give either party new rights. The power to give or withhold damages belongs to the legislature and not to the court.
    The other question relates to the assignment of dower in rents and profits to accrue subsequently. The statute declares that “where no division can be made by metes and bounds, dower shall be assigned in a special manner, as of a third part of the rents and profits.” Now, does this provision authorize the court to charge the property with an annuity in favor of the widow ? Suppose that the estate be a lot of small value, but highly improved by the husband, who aliens and dies. The widow claims dower, and it is assigned to her in the shape of an annual charge upon the property, of one-third the whole amount of rent, at the time of assignment. After this the improvements are destroyed by fire, and the rent is gone. Can it be vindicated that the widow shall still have her annuity, and, if not paid, that she may sell the land for satisfaction ? It seems to me much more equitable, and much more conformable to the statute, that the widow shall be endowed *of one-third of the rents, and that the de- [22 cree stand as her security for the payment, leaving her to collect her proportion in the same manner as any other person similarly interested. There is no difficulty in other cases, where several are respectively entitled to certain proportions of rent; each is to receive his just part, and if any one receives more, he is liable to account to the others. All are subject to the same contingencies of depreciation or advance. Why, then, should a different rule be established as between the heir or alienee and the widow ?
   Lane, C. J.

The right of dower is not now contested, but objections are made to the form of the decree in three points:

1. The right of damages in dower.

At common law, dower was recoverable .in a real action, in which damages made no part of the judgment. The statute of Merton gave damages to the dowress, in certain cases, and since then, until lately, in England, both at law and in chancery, the profits in arrears, from the husband’s death, are given under this name. Such is the law in New York. But as the right of dower is inchoate and completed only by assignment, the damages for arrears of rent accruing before the title is mature, depend upon the statute.

Our first statute of dower, 1795 (Chase’s L. 187, sec. 2), gives “reasonable damages.” The second statute, 1803 (Chase’s L. 395), is silent as to damages, but gives “reasonable support ” out of the husband’s estate. The third, 1814 (Chase’s L. 472, sec. 11), restores the right of “reasonable damages.” The next law, 1824 (Chase’s L. 1315), is silent as to damages, and the same continues to the present time.

If we possessed the power of legislation, we believe the right to damages ought to be maintained, for it is the provision designed by law for her maintenance. 2 Brown. C. C. 682. But we can not supply an omission which we believe accidental. In this point the decree is erroneous.

23] *The next objection is, that a gross sum of $110 is given annually, and charged on the rents, instead of giving one-third the rents themselves.

We believe, that when dower is assigned in a special manner, it would be most convenient to all parties, to ascertain the gross value of the dower estate, derived by a computation of the value of the estate, and the risk of life of the dowress, and directing payment, by which the estate of the dowress is determined. For then the amount of the incumbrance is ascertained at once, and both the dowress and the tenant are relieved from the risk of much unpleasant collision. But the statute authorizes a different adjustment in a “special manner,” leaving the details to the discretion of the court, and where no palpable injustice is done, we should not disturb it.

The decree ought to have given full costs to the petitioner. The act of 1831 (29 Ohio L. 216, sec. 31) requires one-third of the costs to be paid by the petitioner, and two-thirds by the owner of the inheritance.

Decree reversed. 
      
      In Pennsylvania, the widow is entitled to damages from the tenant of the freehold for the time being, to be estimated from the time of the death of the husband, where he died seized, although the defendant may have been tenant but a short part of the time. Thus, where the husband died in 1800, and his son entered and in 1816 sold to one Deever, who, in 1818, sold to Alexander Seaton, who continued in possession till 1822, when he died, having devised tbe lands to Thomas Seaton, who entered and remained in possession till his death, in 1831, when James Seaton, the present tenant in fee, entered_ the widow was permitted to reeover from James Seaton, the present tenant of the freehold, the entire damages from the death of the husband in 1800. Seaton v. Jamison, 7 Watts, 533.
      It is said by the same court, in Shirtz v. Shirtz, 5 Watts, 255, “that it is the duty of the sheriff, in conjunction with the inquest which he shall call to his aid in the execution of the writ of seizin, to lay off by metes and bounds one-third part of the premises mentioned therein, according to their value at the time of doing so, leaving out of the estimate merely the value of the improvements made thereon, if any, since the time of the alienation by the husband. If the rule -which ought to govern the sheriff and the inquest, in the execution of the writ of seizin, should happen to be misapprehended, or not observed by them, the court, on the writ’s being returned by the sheriff, at the instance of the party aggrieved, has it fully in its power to grant such relief as shall be necessary in order to do complete justice between the parties, and to obtain a due execution of the writ by giving to the demandant what is her just right, and no more.”
     