
    * David Stinson versus Jesse Sumner.
    Wfiere one had conveyed land with covenants of warranty, his wife joining in the deed to relinquish her claim of dower, and the purchaser afterwards recovered damages of the vendor for a defect of his title to the land, it was held that the wife’s having joined in the deed did not bar her claim of dower in the land after her husband’s decease.
    Covenant broken, in which the plaintiff declares that the defend ant, by his deed, duly executed, &c., dated April 13, 1801, in consideration of 2200 dollars, bargained and sold to John Anderson, his heirs and assigns, certain premises in Wiscasset, consisting of a wharf and flats, and a store and building thereon standing,—and covenanted with the said John, his heirs and assigns, that he was lawfully seised in fee of the premises; that they were free of all encumbrances; that he had good right to sell, &c.; and that he would warrant and defend the same to said John, his heirs and assigns; — that the said John, in consideration of 2000 dollars, granted and assigned the same premises to Francis Anderson in fee; and that the said Francis, on the 5th of May, 1803, in consideration of 3000 dollars, granted and assigned the same to the plaintiff in fee. The declaration then alleges, as the encumbrance, that Elizabeth Parsons, widow of Timothy Parsons, being at the time of the defendant’s conveyance, and ever since, entitled to her dower in the premises, had, at the September term of this Court holden here in 1807, recovered judgment therefor, and for 40 dollars damage and 31 dollars costs, against the plaintiff; and that, by virtue of the execution issued on that judgment, she was, on the 12th of October, 1807, put into possession of one third part of the premises legally assigned to her for her dower; and that she now holds the same accordingly.
    To this declaration the defendant pleaded several pleas in bar.
    1. That he had well and truly kept and performed his covenants, &.C., and alleges that the premises, at the time of making his covenants, were free of all encumbrances. To this plea the plaintiff replies, that the premises were not at the time, &c., free from all encumbrances; but that the said Elizabeth Parsons was entitled to her dower, and had it set off to her, &c., as in the declaration; and upon this issue is joined.
    *2. That neither at the time of his making his covenants aforesaid, nor at any time since, was the said Elizabeth entitled to any dower in the premises or any part thereof. To this plea the plaintiff replies, that the said Elizabeth, at the time, &c., was entitled, &c., as in the declaration is alleged; and that afterwards she had recovered judgment, and had had her dower assigned, &c., in the words of the declaration; and upon this issue is also joined.
    3. That the said Timothy Parsons, on the 1st of December, 1797, being seised of the premises, conveyed the same by his deed, duly executed, &c., to one David Hinkley in fee, and that the said Elizabeth Parsons, in and by said deed, under her hand and seal, for a valuable consideration, released, remised, and relinquished, to said Hinkley and his heirs and assigns forever, ail her right of dower in the premises; that the defendant, at the July term of this Court at Wiscasset, A. D. 1799, recovered a judgment against the said Timothy Parsons, and on the 20th of that month extended his execution, issued under that judgment, upon the premises described in the plaintiff’s declaration, which execution was, on the 10th of August following, duly recorded, whereby he became seised, &c., and that afterwards, viz., on the 5th of September, 1807, the said Hinkley, by his deed of that date, duly executed. &c., in consideration of ten dollars, granted, conveyed, released, remised, and for ever quitclaimed, to the said Sumner, his heirs and assigns, all his, the said Hinkley’sh right, title, interest, and estate, in and to the premises described in the declaration. To this plea the plaintiff replies, that, before the time of trial of the said Éi.izabeih’s action, and during the pendency of the same, viz., on &.c.. he gave due notice to the defendant of the commencement and pendency thereof, and requested him to defend the same, but that the defendant refused to take upon him the defence of the said cause, or to furnish any evidence therein. To this replication the defendant rejoins, that the plaintiff never gave him due and legal notice of the commencement and * pendency of said action, or requested him to defend the same, as in his replication is alleged; and upon this the plaintiff joins iss»e
    4. That in. the proceedings and trial of the action of the said Elizabeth Parsons, in which she is said to have recovered judgment for her dower in the said premises, &c., the right, title, and deed, of the defendant, or of the plaintiff under and from the defendant, as alleged in the declaration, were not set up or introduced at the supposed trial, or brought into question. To this plea the plaintiff replies, after several protestandoes, that the defendant had notice of the commencement and pendency of the said Elizabeth's action for her dower, previous to the trial thereof, and to the rendition of the judgment therein, &.c. To this replication the defendant demurs generally, and the plaintiff joins in demurrer.
    The several issues in fact thus joined were tried, September term, 1810, before Thatcher, L, and a verdict taken for the plaintiff, subject to the opinion of the Court upon the evidence, as reported by the judge who sat in the trial.
    To prove the two first issues, the plaintiff produced copies of the proceedings in the action of Mrs. Parsons against' him. To that action Stinson pleaded that Timothy Parsons was never seised of the premises, in which dower was demanded, during the coverture of the demandant; and also that the demandant had never been lawfully coupled with the said Timothy. On both pleas issue was joined, and found for the demandant. Judgment was rendered upon the verdict, and upon the writ of seisin issued thereon, the freeholders appointed by the sheriff returned that they had set forth to the said Elizabeth a certain portion of the tenements described in the writ, describing the same distinctly by metes and bounds, “ in full for her dower or third part of the within-described estate ; ” and the sheriff returned that he had delivered seisin and possession of the same to her, the said Elizabeth. The original writ in said action was purchased on the 31st of July, 1807, and the * writ of seisin, issued upon the judgment rendered thereon, was executed on the 13th of October- following.
    The plaintiff also produced a copy of a deed from the Wiscasset company to said Timothy Parsons, dated October 26, 1785, conveying the premises to him in fee; and it was admitted that the said Elizabeth was the lawful wife of said Timothy during his seisin and possession under said deed; and also that he was deceased previous to her commencing her action of dower. It was also agreed that Sumner’s title to the premises was by virtue of the levy of an execution against said Timothy, as stated in his third plea, and by his deed from David Hinkley, as stated in the same plea.
    To prove the issue joined under the third plea, the plaintiff" proved that a short time before the said Elizabeth’s action was entered by appeal in this Court, he gave notice thereof to the defendant, who refused to do any thing upon the subject, and did not suggest that he was possessed of any release from her of her right of dower, or had any defence against her said action.
    The defendant produced a deed duly executed from T. Parsons to David Hinkley, dated December 1, 1797, by which the premises described, together with several other parcels of land, were conveyed to said Hinkley in fee, by which deed the said Elizabeth also released to said Hinkley her dower in tlie lands granted; also a deed from Hinkley to the defendant, dated December 5, 1807, and recorded December 21, 1808, by which the said Hinkley, in consideration of ten dollars, granted, conveyed, released, remised, and forever quitclaimed, to the defendant, his heirs and assigns forever, all his right, title, interest, and estate, in and to the premises described.
    The plaintiff then produced a copy of the original writ, and the return thereon, in the action of the defendant against said Parsons, by which he proved that said action was commenced August 28, 1796, and that the premises described in the declaration, and which are part of the estate * conveyed in Parsons’s deed to Hinkley, and which were levied upon by the defendant, as is set forth in his third plea aforesaid, were duly attached on the 29th day of August, 1796. And it was admitted that the defendant recovered judgment, and extended his execution on the said premises, as is set forth in his said plea.
    The plaintiff also produced copies of the proceedings in an action of covenant broken, brought by Hinkley against Parsons in Sep tember, 1798; in which he sets forth the covenants in Parsons’s deed to him, and declares that Parsons had no right to sell and convey to him, &c., because the premises in said deed mentioned were, at the time of sale, attached in certain suits, upon writs of attachment: in one of which suits the said Sumner is stated to have been plaintiff, and in another one John Codman. It also appeared that in June, 1801, judgment was rendered on verdict in said suit for Hinkley against Parsons for 2308 dollars 40 cents damage, with costs; and that an execution issued on said judgment, and was returned in part satisfied.
    It was agreed that the said Hinkley still held one parcel of land conveyed by Parsons’s deed to him, by virtue thereof, the attachments having been, as to that parcel, dissolved.
    If, upon the facts reported, the Court should be of opinion that the plaintiff was entitled to maintain his action, judgment was to be entered on the verdict found for him; otherwise the verdict was to be set aside, and the plaintiff to become nonsuit.
    The cause was argued at the last June term in this county by Mellen and Coffin for the plaintiff, and by Lee and Wilde for the defendant; and being continued to this term for advisement, the opinion of the Court was now delivered by
   Parker, J.

This is an action of covenant broken, upon covenants contained in a deed from the defendant to John Anderson, dated in the year 1801, conveying certain tenements in Wiscasset to the said Anderson, his heirs and * assigns. In July, 1802, John Anderson conveyed the same tenements to Francis Anderson, his heirs and assigns; and, in 1803, the said Francis Anderson, by his deed of bargain and sale, duly executed, acknowledged, and recorded, conveyed the same tenements to Stinson, the present plaintiff, who is, therefore, the assignee of John Anderson, the first grantee, and is entitled to maintain his action upon the covenants, if any of them should be broken.

The breach alleged is, that the tenements conveyed were not, at the time of the execution of Sumner’s deed to John Anderson, free of all encumbrances, according to one of the covenants in said deed; inasmuch as Elizabeth Parsons, widow of Timothy Parsons, of said Wiscasset, had, at that time, a right of dower in the tenements, and afterwards, viz., in 1807, which was before the commencement of this suit, she had sued out her writ of dower, and by-judgment of Court had had her dower assigned and set off to her in the premises.

There are several pleas by the defendant, and issues thereon, the substance and amount of all of them being, that the said Elizabeth had no lawful right of dower in the premises ; and whether the evidence offered and admitted at the trial justified the verdict in favor of the plaintiff, is the principal question referred to the Court.

There is a subsidiary question upon one of the issues, in which the inquiry was, whether the present defendant had due notice of Elizabeth Parsons’s action of dower, so that he was bound by the judgment recovered in that action. But as this question would be material only in case the defendant had now shown that the -ecovery of dower was wrong, and as the Court are of opinion that he has not shown this by the evidence in the case, it is not necessary to consider whether the notice to him precluded him from showing that dower ought not to have been recovered.

The title of Sumner to the tenements described in his deed is under the levy of an execution, to satisfy a judgment * which he had recovered against Timothy Parsons in July, 1799; the same tenements having been attached on the original writ in that suit in 1796. This levy did not operate to deprive the wife of Parsons of her right of dower; and it would be proper for appraisers, in such cases, in their estimates of the value of lands, &c., which they are about to set off to satisfy executions, to deduct the value of the dower; so that, if the lana should not be redeemed, the creditor may not suffer by the death of the debtor, and a consequent claim of dower by his widow.

The defendant, however, has attempted to prove that the right of Mrs. Parsons was extinguished before her action for dower, by-introducing into the case the deed of Timothy Parsons to David Hinkley, made in 1797, of several parcels of land, including that which is the subject of the present action, in which deed Mrs. Parsons had joined in the usual form, for the purpose of relinquishing hei right of dower in all the premises conveyed by the deed; and has also produced a deed from the said Hinicley to himself, dated in September, 1807, while the action for dower was pending, in which last deed the said Hinkley, for the consideration of ten dollars, grants, conveys, releases, and quitclaims, all his right in the tenements to the said Sumner, his heirs and assigns forever.

If the title to the land described in this deed was, at the time of its execution, in Hinkley, according to the terms of the deed, this would be a sufficient defence to the present action, unless the defendant was bound by the notice before mentioned; because it would show that Mrs. Parsons had parted with her right of dower, in a manner become legal by the long-established usage of this commonwealth; and the right acquired by Sumner, under this deed, would have enured to Stinson, the present plaintiff, to whom Sumner had passed all his right in the premises.

This defence is, however, answered by the plaintiff, by showing that, at the time of the execution of the deed from Parsons and his wife to Hinkley, there were subsisting attachments * upon it, in the suit of Sumner, and in another of Cod-man against Parsons; that, in 1798, Hinkley had instituted his action of covenant broken against Parsons, upon the deed aforesaid, alleging those attachments as a breach of the covenants ; and that afterwards Hinkley had recovered his damages on account of this circumstance; and it appears that the land now in question was, in fact, taken by Sumner to satisfy the judgment recovered by him, for thfe security of which the attachment was made.

Now, the principle upon which Hinkley’s action against Parsons was sustained, and his damages given, must have been, that Parsons had no right to sell and convey the land described in the deed, and it was upon a covenant to that effect that his action was brought. It would certainly be manifestly against the principles of justice, that a grantee should recover either his purchase money or the value of the land, against the grantor, upon an alleged breach of covenant that nothing passed by the deed ; and that he should yet be considered the owner of the land, under the very deed which he had alleged to be inoperative.

It has lately been decided in York, that one who has reco%ered judgment for damages, for a breach of the covenants in Ins deed, upon an allegation that the grantor was not seised, and had no right to sell, shall not set up his deed against the grantor, or any one claiming under him, in an action for the land; but that a judgment for the recovery of damages, for the breach of such covenants, shall avail against such deed, when pleaded by a party having a right to plead such judgment.

This case depends upon the same principle. The estate did not pass from Parsons to Hinkley, as appears by his own allegations and proceedings; and the relinquishment of dower by the wife cannot now avail, since there is no estate in Hinkley for it td operate upon. This, probably, was the view of Hinkley himself; otherwise he would not have parted with his supposed right to Sumner for the small consideration of ten dollars.

*Some objections to the mode of assigning the dower were suggested in the argument; but they cannot avail in the present defence, as the judgment which deprived the plaintiff of so much of his land is now in force ; and although it may have been irregular, we are not satisfied that it is erroneous, so that it can be vacated.

Per Curiam.

Let judgment be entered on the verdict. 
      
      
         [In Borden vs. Borden, (5 Mass. Rep. 67,) an attachment is considered “ rather as an approaching than existing encumbrance.” And in Barnard vs. Fisher, (7 Mass Rep. 71,) it is said, 66 to value an attachment on an undetermined suit as an encumbrance on the land would be palpably absurd.” For aught that appears, the judgment recovered against Parsons might have been reversed for error. Bigelow vs. Wilson 1 Pick. 485.—Ed.]
     
      
       [ Could Hinkley have recovered more than the value of the encumbrance, viz., the interest of Sumner, acquired by his levy ? If not, he recovered nothing on account of the right of the wife of Parsons to dower. And what could prevent that right from passing to Hinkley?— or divest him of it?—or hinder it from passing, by nis deed, to Sumner?—Ed.]
     
      
       Vide Porter vs. Hill, ante, p. 34.
     