
    [513] VAN DORN against VAN DORN.
    Dower is recoverable to only a third of the value of land at the time of the husband’s sale. So also as to damages. Subsequent improvements are not liable to dower.
    
    This was an action of dower; and the following state of the case agreed on by the parties, and submitted to the court.
    It is agreed that judgment be entered for the demandant, subject to the opinion of the Supreme Court, on the following case:
    
      1st. Jacob Van Dorn, tbe busband of tbe defendant, was on the 21st January, 1789, seized in fee of tbe premises out of which the demandant claims dower; and being so seized, be, together with the demandant, conveyed the same to the defendant; pro ut, the deed of that date, marked A., which deed was not acknowledged by the demandant, so as to bar her dower.
    2d. At the time of the said sale and conveyance, the premises consisted of land which had been cleared, but was altogether unimproved by buildings, and only in a state to be used for the common purposes of husbandry. After the conveyance, and in the lifetime of the husband of the demandant, the defendant [*] laid out a considerable sum of money in erecting a sawmill and other improvements on the premises, whereby the value was much increased.
    3d. After the death of the husband, the defendant laid out more money, to a large amount, in further improvements: to wit, in the erection of a grist-mill, and other erections of the same nature, which are now on the premises, and which have increased their value.
    4th. There was no demand of dower made by the demandant further than is included in the bringing of this suit.
    If the court shall be of opinion that the demandant is entitled to recover her dower of the premises as now improved; or as improved before the death of the late husband of the demandant, then a writ of inquiry is to be awarded to ascertain her dower, and the damages she may be entitled to on this state of the case, in conformity with the said opinion.
    If the court shall be of opinion, that the demandant is entitled to be endowed only as of the value of the said premises at the time of the said sale and conveyance, then a writ of inquiry is to issue to ascertain the said value, and final judgment to be entered in conformity to the said opinion.
    
      Mr. Maxwell, for the demandant,
    contended, that the widow was entitled to the whole dower as the land then was; but if not to the whole, she was at least entitled to the improvements made since the death of the husband. In support of his position, he cited the following authorities: 9 Vin. 259 ; Coke Ltt. 32; 2 Paolo. 368 ; Pat. 3I¡P.
    
    On the other hand, it was argued, that the widow is entitled to no more than the value of one-third of the land at the time of the alienation by the husband; nor is she entitled to more damages than one-third [f] of the annual value of the land at that time; that the case of the heir might be laid out of the question as [514] not applying; it was the duty of the heir to assign dower, and if he did not do it, and went on and improved the land, it was his own fault; as the alienee cannot recover of the heir on the warranty of his ancestor, more than the value of the land at the time of the alienation, and the same in respect of a personal covenant; so shall he not be compelled to pay more to the widow; Bin. 145; 2 Bac. 368; Coke Lit. 32; 2 John. Rep. 484; 3 Mass. Rep. 542, 3. That the alienee is not bound to assign dower until demand made.
    
      Mr. Maxwell, in reply.
    There is no distinction in our law between the heir and the alienee; they are both bound to assign dower; they both make the improvement with a knowledge of the right of the widow.
    
      
       S. P. 6 Halst. 396; 9 Mass. 218; 2 Johns. 575. But otherwise, when the heir improves, if the husband died seized. 2 Johns. 485. Judgment for one-third, and relief by rule, for improvements by alienee.
    
   The Court

were unanimously of opinion, that the widow could recover no more than the value of the third part of the land at the time of alienation; that the improvement since the sale by the husband, was not a subject'of dower, and that the same rule was also to govern in the assessment of damages.

Judgment for the demandant accordingly.

Cited in Coxe v. Higbie 6 Halst. 395; Chiswell v. Morris, 1 McC. 101;

Barnett v. Griffith, 12 C. E Gr. 206.

Approved Wheeler v. Kirtland, 12 C. E Gr. 534.  