
    Patience Hurd vs. James Grant.
    A writ of dower unde nihil habet lies only against the tenant of the freehold.
    Where the demandant failed in shewing that the defendant was such tenant, and where it was proved on the part of the defendant that another was tenant of the freehold, ' the court refused to set aside a nonsuit.
    This was an action of dower unde nihil habet, tried at the Delaware circuit, in June, 1828, before the Hon. James Bmott, one of the circuit judges.
    The defendant pleaded several pleas, one of which was non-tenure. The demandant," on the trial of the cause, proved her marriage with one Joseph Hurd, his death, the possession by him, during his life time for several years, of the lot of which the premises demanded were a part, and the possession of the premises by the defendant at the commencement of the suit. The defendant proved that the premises in which-dower was claimed was an unenclosed wood lot, and read from the records of the county clerk’s office of Delaware a deed bearing date 12th March, 1825, by which the defendant conveyed the premises in which dower was claimed to one John K. Grant. The judge ruled that the action should have been brought against John K. Grant, and non-suited the plaintiff; to set aside which nonsuit a motion was now made.
    
      Sherwood Woodbridge, for demandant.
    
      J. A. Spencer, for defendant.
   By the Court,

Marcy, J.

A writ of dower unde nihil ha-bet lies only against the tenant of the freehold. (Comyn’ Dig. Pleader 2, y. 1. Fitz. N. B. 148.) It has been adjudged by the court of appeals in Virginia, that a suit for dower cannot be brought against a tenant from year to year; that it can be sustained only against the ■ tenant of the freehold having the inheritance, or an estate equal in duration to the life of the demandant. (1 Hen. & Munf. 268.) "The freehold of the premises in which dower was demanded in this case was shewn to be in a person other than the defendant, and the defendant had not even the actual possession. The motion to set aside the nonsuit must be denied.

Motion denied.  