
    Mary C. Allen v. Robert W. McCoy.
    Where a husband, during coverture, was seized of several tracts of land, which, after his death, came into various hands, a petition for dower is properly preferred against every separate holder.
    Wild, uncultivated lands are, and always have been, subject to dower in Ohio. In making assignment of dower, the rule of value is to he taken at the time of assignment; but all increased value from actual improvements on the ground is to be excluded.
    This was a petition in chancery for dower, which was heard upon the following state of facts :
    In the year 1803, the defendant intermarried with Geo. W. Allen, who was then seized in fee of seven half sections of land* each containing 320 acres, all situate in the refugee military lands, and lying in the counties of Franklin,'Fairfield, and Licking, in the State of Ohio, as those counties were bounded when the petition was filed. In the year 1805, Geo. W. Allen mortgaged these lands, but his wife did not join in the mortgage. Allen died in 1806. In the year 1809, the lands were sold by the sheriff under judicial proceedings on the mortgage, and purchased by different persons. Lyne Starling purchased half section 29. The city of Columbus was laid out upon part of this ground, and the petition prayed for dower in only a single town lot, No. 264, owned by the defendant, and highly improved. All the half sections were wild, uncleared lands, at the death of Geo. W. Allen, and remained so, to the sale under the mortgage.
    The case was heard first by the court in bank, at the December term, 1836, upon a very full argument, and a decision pronounced in favor of the petitioner, to endow her of one-third of the then value of the particular lot of land, exclusive of the improvements erected upon it. A petition was immediately presented for a bill of review, which was allowed. This bill of review was held under consideration until December, 1838, without any change being effected in the opinions of the judges, when it was dismissed. The case was made most intelligible by first inserting the argument against the petition.
    * Wilcox, for the defendant.
    Most of our ideas, in regard to dower, are derived from the law of England. It is proposed, therefore, with the indulgence of the court, to consider that law, at three periods:
    1. In Glanville’s time — Hen. II, a. d. 1184.
    2. In Littleton’s time — Ed. IY, A, d. 1481.
    3. At the-present time.
    The law of England, in relation to dower, was first reduced into a system by Glanville. He is the earliest writer who undertook to lay down the law in detail. His treatise formed the foundation on which the superstructure of subsequent times has been reared. He is therefore selected as a starting point. If we can but acquire accurate notions of what the law was in his time, we shall be the better able to understand the law as it has been modified by acts of parliament and the decisions of courts of justice, at different periods, down to the present day.
    What, then, was dower, in the time of Glanville?
    It was that property which a freeman gave to his wife, ad ostium ecclesice, at the time of the espousals. The husband either named the dower specially, or he did not. If he did not name it specially, the dower was understood, by law, to be the third part of the husband’s liberum tenementum, .for the rule was that a reasonable dower of a woman should be a third part of her husband’s freehold, which he had at the time of the espousals, and was seized of in demesne. If he named the dower especially, and it amounted to more than a third, such special dower was not to be ailowed; but it was to be admeasured to a fair third; for though the law pormitted a man to give less than a third in dower, it would not suffer him to give more. If a man had but a small freehold at the time of the espousals when he endowed his wife, he might afterward augment it to a third part, out of purchases he had made since; but if there had been no provisional mention of new purchases at the time of such assignment of dower, although the husband had then but a small portion of freehold, and had made great acquisitions since, the widow could not claim more than the thix-d part of the land he had at the time of the espousals. In like manner, if a man had.no land, and endowed his wife with chattels, money, or other things, and afterward *made great acquisitions in* land, she could not claim any dower in such acquisitions; for it was a general rule, that, where dower was specially assigned to a woman ad ostium ecclesice, she could not demand more than what was then and there assigned. 1 Reeves’ Com. Law, 100, 101.
    The woman could make no dxsposal of her dower during the lifetime of her husband. But evex-y marx-ied man, in his lifetime, might give or sell, or alien in any way whatsoever, his wife’s dower. The wife, however, if she did not consent to the sale, might claim her dower, after the husband’s death, against the purchaser. Besides, in such a case, the heir was bound to deliver to the widow the specified dower assigned, if he could; and if he could not procure the identical land, he was to give a reasonable excambium, or recompense in value; and if he delivex-ed her the land that was sold, he was in like manner bound to give an excambium, or recompense, to the alienee of the husband. This excambium was other lands of the value at the time of the warranty made, that is, at the time of the alienation. 1 Reeves’ Com. Law 101, 102; 1 Caine, 111.
    Such was the widow’s right of dower. .
    Next as to the remedy.
    
    On the death of the husband, the dower, if it wa« a parcel of land named and specified, was either vacant or not. If it was vacant, the widow, with the assent of the heix-, might take possession thereof, and hold herself in seizin. If part only was vacant, she might take possession of that, and for the remainder, she might have her writ of right directed to her warrantor; that is, the heir of the husband. The writ was as follows.
    
      '■'■Bex M. Salutem, Pmcipio tibi quod sine dilatione plenum rectum 
      
      teneas A. qua fuit uxor E. de una hida terra in villa, etc., quam clamat pertinere ad rationabilem doteni suam, quam tenet de te in eadem villa per liberum servitium decern solidorum per annum pro omni servitio, quam N. ei deforceat, et nisi feceris, vice come faciat, ne oporteat earn amplius inde conqueri pro defectu recti,” etc.
    The plea being removed into the county, or king’s court, and the parties appearing, the widow set forth her claim i.n these words:
    
      “ I demand that land, as appertaining to such land which was named forme in dower; of which my husband endowed me ad *ostium ecclesia, on the day he espoused me, as that of which he was invested and seized at the time he endowed me.”
    To this claim the adverse party might make various answers; he might admit or deny that she was endowed of the land, but whatever was the answer given, the suit ought not to proceed without the widow’s warrantor, that is, the heir of the husband; he was, therefore, summoned by writ to appear. If the heir, when he appeared, admitted what the widow alleged, he was bound to recover the land against the tenant in possession, and deliver it to the widow. If he declined prosecuting the suit, he was bound to give her an equivalent in recompense, for in all events the widow was to be no loser. If he denied what was alleged by the widow, the suit was continued between him and her; and if she prevailed, he must deliver to her the land in question or a sufficient equivalent.
    This was the course for a widow to take when she was obliged to sue for a part of her dower; but when she could get possession of no part of it, and was put to sue for the whole, her suit was commenced originally in the curia regis, and the person who withheld her dowry was summoned by a writ called a writ of dower unde nihil habet; whoever was in possession of the land, whether the heir, or any other person, the presence of the heir was always necessary. If a stranger was in the possession, the heir was summoned by a writ of summons ad warrantizandum. The suit between the heir and the widow might bo varied as the heir pleased. He might set up by way of defense that no assignment was made, or deny that to be the- land assigned, etc. If she prevailed, he was bound to deliver her the land or an equivalent; and if he delivered her the land that was sold, he was bound in like manner to ’give a recompense to the purchaser.
    Thus stood the law of dower in the time of Glanville.
    
      Second Period. — Littleton’s time — Ed. IT., A. d. 1481.
    During the 300 years next succeeding the time of Grlanville, several alterations had been made-in the law of dower; Littleton enumerates five kinds:
    1. Dower by the common law.
    2. Dower by the custom.
    3. Dower ad ostium ecclesice.
    
    4. Dower ex assensu pair is.
    
    5. Dower de la pluis beale.
    
    *The first alteration was made by magna eharta, o. 7 ■Henry III, A. d. 1225. It is in these words:
    “ And for her dower shall be assigned unto the widow the third part of all the lands of her husband which were his in his lifetime, except she were endowed of lessee at the church door.”
    This is what Littleton calls “ dower by the common law.” It seems to have been the intention of this provision in the charter to enlarge the widow’s dower, for it has already been seen that'in the time of Glanville, it was to be a third of such lands only as the husband had at the time of the espousals. This intention, however, seems not to have been carried into effect for nearly 200 years. According to Bracton, in 1256, the claim of dower was still limited to the freehold of which the husband was seized at the time of the espousals; and it seems that it was not till the times of Henry YI and Edward IY, that the law became thoroughly settled, giving to the widow a third part of such lands as were her husband’s at any time during the coverture. Brac. 92; 1 Reeves’ Com. L. 312; 3 Ib. 332; Lit., sec. 36. The reason may appear from the fact that from the signing of magna eharta in 1225, to the time of Henry Y, 1417, the previsions of that instrument were so evaded by the crown, that it was necessary to confirm and re-enact it by no less than thirty-two acts of parliament — on an average, once in six years. 2 Co. Inst., tit. Mag. Char.
    Another alteration was made by the statute Merton, A. d. 1235. It is in.these words:
    Cap. I. “ First of widowes, which after the death of their husbands, are deforced of their dowers or quarantine of the lands whereof their husbands died seized, and that the same widowes after shall recover by plea; they that be convict of such wrongful deforcement shall yield damages to the same widowes, that is to say, the value of the whole dower to them belonging from the time of the death of their husbands unto the day that the said widowes by judgment of our court have recovered seizen of their dower,' and the deforeers nevertheless shall be amerced at the king’s pleasure."
    This seems to be the first legal provision in England giving damages to the widow; and is limited to those cases where the husband died seized.
    
    During this period several cases of dower are found reported *in the year books; the substance of which seem to be embodied in Harg. n. 8, 31, a. 193; 1 Thos. Coke, 455. If the feoffee improves by buildings, yet dower shall be as it was in the seizin of the husband. For the heir is not bound to warranty, except according to the value as it was at the time of the alienation, and so the wife would recover more against the feoffee than he would recover in value, which is not reasonable. Hale’s Mss. This seems to be simply a recognition of what the law was in Glanvilie’s time.
    The legal remedies in behalf of the widow continued the same • a writ of right of dower, when she claimed a part, and a writ of dower unde nihil habet, when she was put to sue for all her dowery.
    Dower in England — at the present time.
    
    The law, as administered by courts of justice at the present day (except as to the new remedy in chancery), seems to be much the same as in the time of Littleton; but quite a change has taken place in regard to the estate itself, as a legal provision for the widow. A late writer says:
    “ In modern times many causes have tended to diminish the popularity of this legal provision. The existence of dower is rarely adverted to, even by professional men, in any other light than as an incumbrance upon a title; and an instance very rarely, indeed, occurs in which property becomes liable to dower in the hands of a purchaser. Universal consent seems now to have designated the provision made by the law with so much care, as an incumbrance, the anticipation of which is, in every case, to be desired. Independence of mind, as well as the finer sensibilities, revolt from the idea of a stated compulsory appropriation of property in a case where moral duty and the domestic affections afford a surer pledge among the virtuous than positive institutions.” Park. 2, 3.
    
      Besides, the reason of- the law has ceased' to exist. The law originally created this provision for the widow, because without it she could not have had a support. In those early times, the personal estate, even of the richest, was very inconsiderable. The husband, during his life, could make no provision for his wife. Trusts had not been invented. Lands could not be devised until tho time of Henry Till. The villains were attached to, and formed a part of the soil. On the death of the husband the use of one-third of the land, with one-third of the villains to euiiivate *it, was the only means of supplying the widow and children with bread. Hence, dower, even to a maxim, became one of the favorites of the law. But the villains have been set at liberty. Wealth and refinement, and correct moral feelings, have introduced other and better modes of providing for families. That estate which we call dower never had an existence among the refined, nations of antiquity. Necessity gave it birth among the northern nations of Europe ; and experience has shown that it is not very congenial to a state of cultivation and refinement. Harg., note 8, 30 B; 1 Thos. Coke, 442 ; 2 Fitz. N. B. 148.
    Hence, the few modern cases of dower in England. Nothing can more clearly illustrate the change which has taken place in England, than the late statute of 3 and 4 Will. 4, section 4, by which it is enacted:
    “ That no widow shall be entitled to dower of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will.” Har. Index, 1225.
    The rule in force in the time of Glanville and Littleton, seems still to be recognized as the law of the land; that as against a purchaser, the value of the widow’s dower is to be estimated as at the time of the alienation. Harg., note 8 ; 1 Thos. Coke, 455.
    We now come to the United States.
    Massachusetts. — The provision of magna charta was re-enacted in this state, giving to the widow one-third of all the lands owned by the husband at any time during the coverture. .
    The common law rule is also adhered to, that as against the purchaser, the widow’s dower is to be estimated, as at the time of the alienation. 9 Mass. 8, 221.
    The law is settled in this state, “that a widow is not entitled to dower in land which was wild when alienated by the husband, but has been brought into a state of cultivation by the husband’s grantee, at the time dower was demanded. 15 Mass. 164; 1 Pick. 21; 7 Pick. 143.
    Maine. — In this state the law seems to be the same as in the State of Massachusetts. 4 Kent’s Com. 41.
    New Hampshire. — The provision of magna charta was adopted in this state, but has been subsequently so modified by statute and rules of court,, that “ the widow is not entitled *to dower in any lands whereof her husband was seized during the marriage, unless such lands were in a state of cultivation during such seizin, or were used and kept as a wood or timber lot as appurtenant to some farm or tenement; and in case of alienation by the husband, she shall be endowed of one third part in value, according to the value thereof, at the time sqch husband so lost or parted with his title thereto.” 2 N. H. 56, Law Reg.
    New Jersey. — The provision of magna charta was also adopted in this state. The question as to the assessment of the value against a purchaser who had made improvements, came up for decision in 1810, and the court hold that “the widow could recover no more than the value of the third part of the land at the time of the alienation.” Penn. 513.
    ' South Carolina. — The statute in this state is peculiar. The common law rule is observed in the assessment of the value as against a purchaser. In 2 Mills, 256, it is said by the court, “ The reasonableness and correctness of tho rule, that dower shall be assigned acording to the value at the time of the alienation, is so clearly established by principle and authority, as to supersede all reasoning upon it.” 1 Baily, 281.
    Indiana. — In this state the provision of magna charta has been adopted; and, as against the purchaser, the value of the widow’s dower is estimated as at the time of the alienation. 2 Blackf. 223.
    Yirginia. — The provision of magna charta has been adopted in this state; and, as against the purchaser, the value of the widowls dower is estimated as at the time of the alienation. 4 Leigh, 498.
    New York. — In this state the provision of magna charta has been adopted; and, as against the purchaser, the value of the widow’s dower is estimated as at the time of the alienation. 2 Johns. 484; 11 Johns. 510; 13 Johns. 179; 10 Wend. 480.
    Yermont, Connecticut, North Carolina, and Tennessee. — In these states, alienation by the husband alone, bears dower. The wife is entitled to dower only when the husband dies seized. 2 Vt. 329; 5 Conn. 462; Law Reg. 214, 757.
    Louisiana. — Lower is unknown to the civil law
    Maryland, Illinois, Mississippi, and Delaware. — The provision of magna charta in these states seems to h.ave been adopted; but no judicial decisions have been found as to the rule for estimating the value of the widow’s dower. See Law Eeg.
    Alabama and Missouri. — These states have peculiar statutory provisions. No rule has been found regulating the value of the widow’s dower.
    Kentucky. — In this state the provision of magna charta has been adopted.
    In 1831, the question came up as to the mode of estimating the value of the widow’s dower, and it whs held “ That if the husband had alienated the land in his lifetime, seizin should be given to the wife of a third in value, according to the condition of the land at the date of the alienation.” 6 J. J. Marsh. 591.
    Afterward, in 1833, and apparently without reference to the case just cited, it is said, “ If the applicant be a bona fide alienee, and had, since his purchase, made improvements which enhance the value of the lots, the appellee would be entitled to dower in only so much of the lots, unimproved, as would be equivalent to one-third of the value, at the time of the alotment, had there been no melioration. Such seems to be the settled American doctrine.” See 4 Kent’s Com. 67, 68; 3 Lana, 348.
    Pennsylvania. — The provision of magna charta has been adopted in this state; and the rule is settled that the widow’s dower is to be estimated at the time of the assignment, excluding improvements made by the purchaser. 5 Serg. & Rawle, 289.
    
      Ohio. — By the statute law, if not by the ordinance, the provision of magna charta is, and always has been, in force in the *State of Ohio. There remains no written evidence to show what construction was put upon our early statutes.
    In the first settlement of Cincinnati, a low piece of ground on the outskirts of the city, then of little value, became subject to dower. From improvements made by the purchasers, and from the general improvements of the city and country, the lots became valuable, and the right of dower was asserted. Several cases were brought before the Supreme Court between the years 1822 and 1829, and were heard and decided as follows:
    
      Ewing v. Keys, Same v. Stansbery, Same v. St. Clair, Same v. Enness. These were writs of dower, before Judges Burnet and McLean, in which judgments were rendered in 1822, adopting the common law rule, directing the value of the dower to be estimated as at the time of the alienation. The records of two of these cases are presented to the court.
    Dickey v. The City of Cincinnati. This was a writ of dower. Verdict in 1823, before Judges Burnet and Hitchcock, finding specially the value at the time of the alienation. New trial granted. Discontinued in 1824. It is understood the new trial was granted on other grounds than the rule laid down for estimating the value. The record of this case is with the papers.
    McCullough v. Wallace, Same v. Ferris, and Same v. Hathaway. Writs of dower, before Judges Burnet, Hitchcock, and Sherman, in 1824. Verdict finding that the husband died seized, and fixing the value at the time of his death, and judgment for that value. The record of one of these cases is before the court.
    Barr v. Brown. This was a bill in chancery. In 1828, an interlocutory decree before Judges Burnet, Hitchcock and Sherman, finding the value at the time of the alienation, and directing assignment. Final decree in 1829, by Judges Pease and Sherman.
    After such a series of decisions, extending through a period of seven years, it can hardly excite surprise that the law of dower was considered as settled by the profession, in the southern and central parts of the state.
    It is now proposed, with the permission of the court, to consider the origin and soundness of the rule estimating the value of dower at the time of the assignment.
    A lot in Pittsburg, which it seems had been alienated by the husband at an early day, became subject to dower. Its *value by the erection of buildings on the lot itself,- and by the general growth of the city, had become much enhanced. The court of common pleas adhered to the common law rule, and directed the value of the dower to be estimated as at the time of the alienation. Error was taken, and the Supreme Court reversed the judgment of the court below, and directed the value to be estimated as at the time of the assignment, excluding improvements made by the alienee. 5 Serg. & Rawle, 289.
    The judge, who delivered the opinion of the court, went at some length into the year books, and from some of his remarks it would seem that he felt disposed to deny that the common law rale confined the widow to the time of the alienation. This, however, seems to be a conceded point.. The language in which the rule is laid down in the English cases, ex vi termini, excludes all other modes of assessing the value. The late cases in New York and Yirginia, in citing the case from Pennsylvania, look upon it as an innovation of the common law; and the court in South Carolina say, “ that its correctness is so clearly established by principle and authority as to supersede all reasoning upon it.” 1 Bailey, 281. The judge, too, at length seems to admit the rule. The conclusion he comes to upon this part of the case seems to be this : That he has found no express authority in the English books either for or a'gainst allowing the widow the benefit of general improvements, and therefore he feels himself at liberty to adopt a new rule, consistent with his views of right and justice. See the last two sentences in the opinion of the court.
    The main ground, however, upon which the court seem to rest their opinion, is the case of Gore v. Brasier, 3 Mass. 544.
    Now, it is not often that Chief Justice Parsons and the common law are found in opposition to each other, more especially in regard to any of these old principles, which, for so many ages, have regulated the enjoyment of real estate. Not thirty days before, in Wilder v. Bailey, 3 Mass. 298, he had said “ that the common law is always a safe guide;” and in the present instance, it is believed that his opinion, when rightly understood, will be found to establish a position diametrically opposite to the one supposed.
    The subject before him was a rule for estimating damages on the covenant of warranty.
    His language is this:
    “By the ancient common law, the remedy on a warranty was *by voucher or warrantia chartce, and the recompense recovered in those suits was other lands to the value at the time the warranty was made. This was the general rule; but when the warrantor, on being vouched, entered into the warranty generally, he was bound to enter other lands to the value of the lands lost at the time he entered into the warranty. In valuing the land lost, when the vouchee entered into the warranty specially, no regard was had to any improvements made by the tenant, as by .erecting edifices, or turning pasture into arable land; nor was the -discovery of a mine in the land lost, after the warranty was made, but then not known, considered in ascertaining the value of the land to be recovered in recompense.
    “ An effect originating in this feudal principle may be discovered in this state in the assignment of dower against a purchaser. When the husband aliens with warranty during the coverture, and afterward dies, his widow shall not be entitled to the benefits of the improvements made by the purchaser, because he could not recover their value in other lands against the heir on the warranty of the husband. This rule is now supported in this state on principles of public policy, that purchasers may hot be discouraged from improving their lands.”
    Now it is to be observed that the remarks of Chief Justice Parsons, thus far, are limited to that class of cases where the alienee of the. husband actually makes improvements on the land purchased. In such a case, he says, that from principles of public policy, the rule of the common law has been adopted in Massachusetts, estimating the value of the widow’s dower as at the time of the alienation.
    He then proceeds:
    
      “ If the lands have greatly risen in value, not from any improvements made upon them, nor from the discovery of any new sources of profit, but from extrinsic causes, as the increase of commerce and population, it may be a question, whether on the extendi ad valentiam, the lands to be recovered in recompense would be valued at the increased price, so that the quantity might be proportionably reduced. This is here a question of mere curiosity, unless it should be considered as relating to the lands to be assigned to the widow for her dower. If the husband during the coverture had aliened a real estate in a commercial town, and at his death the rents had trebled from various causes, unconnected with any improvements of the estate, and the widow should then sue for her dower, perhaps it *would be difficult for the purchaser to maintain that one ninth-part only, and not one third-part, should be assigned to her.”
    Now, this is the class of cases here referred to, where the alienee of the husband enters, but makes-no additional improvements on the land.
    The case he supposes is this:
    A lot of land in a commercial city is alienated by the husband. The purchaser enters, but makes no improvements whatever upon the premises. He permits them to remain in the same condition-as when they went out of the family, and ceased to be benefited* either by the joint or several labor of the husband and wife. The* husband dies, and the widow seeks her dower.
    Now the suggestion is, that the case being freed from embarrassment by reason of improvements made by the purchaser, the court may assign to the widow by metes and bounds, one entire third part of the land; or, she may receive one entire third of the annual rents as they accrue; and thus, as the use of one-third of the land becomes more or less valuable; or, as the annual rents rise or fall, from the operation of general causes, the widow gains or loses accordingly.
    But where the purchaser'has made improvements, it is a conceded point that there can be no assignment by metes and bounds, and that the widow can not receive one-third of the annual rents as they, accrue. Some gross, specific sum of money must be fixed upon, to be paid annually to the widow during her life. In order to fix this amount, some plain, practical standard is necessary;, and what that standard shall be, is the question.
    It is to be observed, too, that in the case supposed by him where the purchaser makes no improvements, Chief Justice Parsons himself speaks with hesitation, “ and where that man doubted, who will dare to be positive?” Yet admitting the opinion to be entirely, correct, it had nothing to do with the case before the court in Pennsylvania. In that case the purchaser had made improvements, bona fide, on the lands purchased; and the question is, what shall be the rule, in such a case, for estimating the value of the widow’s dower? Shall it be the common law, or shall it be something else? We claim the authority of Chief Justice Parsons, in favor of the common law.
    Aside from authority, there seem to be but two reasons named by the Supreme Court of Pennsylvania.
    *“ That dower is a claim founded on law, and favored by courts both of law and equity.
    “That it would be hard, indeed, upon the widow, if she were precluded from taking her share in the increasing prosperity of. the country.”
    That in former days the claim of dower was highly favored, is beyond dispute. The maxim which connects it with “life” and “ liberty,”-runs through all our elementary books. The reasons,. <as well as the cause for its decline and fall, have already been shown. The maxim, may still be current, but it has lost one-third <of its meaning.
    But what seems to be a conclusive argument on the point is this: The very law, which made the widow’s dower its favorite, withheld from her that advantage which she is now seeking. It was the common law that gave her its especial protection. It was the common law that confined her dower to the value at the time -of the alienation.
    As to the right of the widow to the benefit of general improvements, it would seem that no two minds cou,ld differ.
    If such general improvements have been promoted by the ex.penditure of the time and money and labor of the widow,'shej .and not the purchaser, ought to enjoy the benefit.
    If the general improvements have been promoted by the expenditure of the time and money and labor of the purchaser, he, .and not the widow, ought to enjoy the benefit.
    If neither the widow nor the purchaser have contributed their -aid toward such improvements, then neither can complain if the •benefit be withheld.
    If it be necessary to adopt some general rule, what then are the dictates of public policy? What is the experience of other 'countries? What principle has governed England through a period of seven hundred years, from a state of indigence to its present independence? What principle prevails in almost every •state of the Union?
    The language of the Supreme Court of New York is appropriate. -10 Wend. 486.
    “It is certainly reasonable that the enhanced value should inure to the benefit of those, through whose labor, and sufferings,- and expenditures, the appreciation has been made. If the property has been rendered more valuable by the general improvements of the country, the defendant, and not the plaintiff, has contributed to that general improvement.”
    *Such, then, are the reasons and the authority, which are -supposed to sustain the case.in Pennsylvania.
    But this is not all. Since the decision of the case in Pennsylvania, in. 1819, the identical principle has been reviewed by the Supreme Courts of New York and Yirginia, in 1833, and by the Supreme Court of Indiana, in 1829, and the doctrine pronounced unsound. 10 Wend. 480; 4 Leigh, 498; 2 Black. 223. And to these authorities the attention of the court is respectively invited.
    It is said that the Pennsylvania rule is sustained by the opinions-of Chancellor Kent and Mr. Justice Story. The latter seems to have adopted the case from Pennsylvania with but little consideration, and in opposition to the law of his own state. On its face it bore marks of learning and research. The principle was-novel. The Supreme Court of Pennsylvania sustain a high reputation', and it seemed safe to adopt their opinion. Chancellor Kent does not profess to have examined the question. And it is a remarkable fact that in Massachusetts and New York, the states in which they respectively reside, the settled rule of law is in direct opposition to the opinions of both Chancellor Kent and Mr. Justice Story. Their opinions were reviewed and pronounced unsound by the Supreme Courts of New York and Yirginia, in the cases above cited. 10 Wend. 480; 4 Leigh, 498.
    One of the evils supposed to be incident to the Pennsylvania rule is the difficulty of its application. It is seldom proper to rely upon a single instance in the adoption or rejection of any rule; but it is to be remembered that the proposal is to introduce-a new rule; and that the case now before the court is merely an-entering wedge. Several hundred other lots in Columbus, nearly all the town of Dayton, besides immense quantities of land, are to-be brought directly under the operation of the rule, as soon as it shall be once established in favor of this complainant. This case, therefore, in its general features, may be regarded as a fair instance to test the principle.
    A simple reference to the evidence and master’s report might be sufficient; but as the subject is a novel one, the court will bear-with a few words by way of exposition.
    320 acres of wild land were aliened by the husband of the complainant, in 1805. In 1806, the husband died, and the right of' dower became perfect. The annual rent of the entire tract was then worth nothing. The purchaser, *in conjunction with the owners of adjacent lands, located a town upon the premises and disposed of the lots with warranty. The defendant, among others, is a purchaser. The annual rent of the lot now in controversy (62J by 187J feet) is worth about $1,000, including the improvements made by the purchaser. A multitude of causes have-been in operation to produce this result. The defendant has contributed largely toward the erection of the state house, the courthouse, the several' churches, the market-house, the bridge, the wharf, the removal of the seat of justice from Franklin, and perhaps other public improvements. He has also paid the annual taxes for grading and paving the sidewalks and otherwise improving the public streets. The sum total of these expenditures, exclusive of time and labor, is shown to be several thousand dollars.
    Now, it is obvious that every dollar of money thus expended by this defendant has gone directly to make up the present annual value of this lot; and it really does seem to be a waste of time and strength, to frame an argument to convince an intelligent court that the defendant, and not the complainant, is justly and honestly entitled to the benefit of these expenditures, and that they must be taken into the account.
    But we do not stop here. The evidence shows that this defendant is the owner of three lots, parcels of the same 320 acres aliened by the husband; that he has made large improvements upon all the lots; and that the improvements made upon one essentially increase the value of the others. Now, what is the result of the principle contended for?
    This bill is filed against lot No. 1. The improvements made on the lot itself are excluded; but the complainant actually obtains the benefit of the improvements on lots 2 and 3.
    This secured, a second bill is filed against the same defendant for lot No. 2. She now reaps the benefit of the improVements on lots 1 and 3.
    This secured, a third bill is filed against the same defendant for lot No. 3. She now reaps the value of the improvements on lots 1 and 2; and thus she actually obtains the benefit of the improvements made upon all the lots.
    Such is the identical case before the court. Can it be insisted that this is the law of the State of Ohio, or ought to be ?
    But this is not all.
    At the common law, when the wife prosecuted her writ of ^dower against the alienee of the husband, the warrantor was vouched to warranty. When he appeared and entered into the warranty, he took upon himself the entire defense of the cause; and the controversy was then carried on between the claimant and the warrantor, and the tenant “ might stay at home.” As against the claimant, the warrantor was regarded as the owner of the land, because he was bound by his warranty to defend it. He therefore could plead that the widow was not endowed — ne unque accovples — or any other available matter. 1 Reeves’ Com. Law, 380. Hence the modern rule that a grantor, with warranty, may file a bill quia timet, in order to protect himself against his warranty. 1 Johns. Ch. 344. If the claimant eventually succeeded, the court rendered a double judgment: one in favor of the claimant against the tenant, and another in favor of the tenant against the warrantor, for lands of equal value. Cro. Jac. 688-
    Now, it seems not to be pretended that the rights of the parties are in any way affected by the remedy which courts of chancery have, in modern times, afforded the widow.
    Suppose, then, that the complainant in this case had prosecuted her writ of dower.' The defendant might call upon Starling, his warrantor, to defend the suit in his stead. The suit would then be carried on between the complainant and Starling. As against the complainant, Starling would stand as if he never had alienated any part of the lands purchased from the husband. He might make any defense in his power; and upon the very principle laid down in Pennsylvania he might show, that upon the 320 acres of land purchased by him from the husband, he and those under him had laid out a town and made the improvements which give to the lot in controversy its present value. Being bound to protect all those claiming under him, he might make the same defense as if he were now the owner of the entire 320 acres and had made all the improvements with his own hand.
    Let it be supposed that Starling had sold no part of the 320 acres, but had himself erected all the buildings and made all the other improvements. Now, if the complainant had filed her bill against him, claiming dower in a lot 100 feet square, parcel of the 320 acres, it can not be seriously contended but that Starling might show that the improvements made on the residue of the 320 acres were the very cause which gave its present value to the 100 feet square. On any other principle, if a farm become ^subject to dower, the widow may file her bill against any one lot, and the owner shall not be permitted to show that the value of that lot has been enhanced by improvements on other parts of the same farm — and so one bill after another may be filed, each against a single lot, till the widow obtains the benefits of all the improvements on the whole farm. The principle is the samo in this case. Being bound to warranty against all claims whatsoever, the purchaser from the husband as against all such claims, must be looked upon at law and in equity as the owner of the entire 320 acres, and as such, entitled to defend it, either in the entirety or in parts. That he is not a party to this bill is nob our fault. That the complainant has resorted to a court of chancery for a remedy, can not affect the rights of the other parties. That voucher upon warranty having fallen into disuse, does not touch "the argument. All the obligation of a warranty rests upon the parties in the shape of a personal action for damages. 3 Mass. 523. Such also seemed to be the views of the complainant when she first asserted her claim to these same premises in the county o Licking, the record of which is presented to the court, as an illustration of this point of the argument for the defendant.
    For these reasons it seems clear that all the improvements on the 320 acres are to be excluded from the estimate.
    There is yet another consideration.
    It is the law, that in case of eviction, by paramount title, the .grantee on the covenant of warranty can recover nothing for his improvements, nor for the enhanced value of' the land from the operation of general causes. He is confined to the value at the. time of the warranty made. Now if the enhanced value be given to the widow, can the defendant, on his covenant of warranty, recover for that value? If not, must he sustain the loss?
    Is it right to give the widow so much latitude íd the selectiou of her own time for the assignment of dower? If the country be in a state of depression, she may wait better times, till the value ■of real estate is at its maximum. If she then strikes for her dower, .no subsequent reverses can affect her. She must be paid annually the gross sum assigned her, even if the entire estate fall short of that amount.
    If the common law rule must be overturned, a better substitute would seem to be the value, at the death of the husband. Her right then becomes perfect, and if she stands by, and sees improvements making, and delays her application, it *ought •to be at her own risk. In the present instance what vast advantage is given to a widow, in a range of thirty years, to select her 4ime for the assignment of her dower. What would have been the value of her dower under the law, as it stood before the case of Dunseth v. Bank of United States, in 1836?
    In regard to the difficulty in applying the rule under considera, tion, the attention of the court is invited to the opinion of the Supreme Court of the State of New York, in 10 Wend. 486:
    “I may however remark, that any other rule than that adopted by this court would be difficult of application. In this very case, some of. the witnesses state that the whole improved value arises from the improvements made upon the land in question and the other lands in the same portion of country, all of which were of little value when this lot was sold by the husband of the plaintiff; and they say that as this lot is enhanced in value by improvements on- adjoining lots and those in the vicinity, so those lots have been enhanced in value by the improvements on this; and thus, each lot may be said to be enhanced in value by the labor and money expended upon it by its owner. This is certainly true to a great extent, if not to the full extent of the enhanced value. Can any one say what would have been the present value of the lot in question, if the whole western part of the state had remained as it was in 1792; and what would the plaintiff’s dower be worth if the whole country was a wilderness? It must be mere conjecture. It is certainly reasonable that the enhanced value should inure to the benefit of those through whose labor and sufferings and expenditures the appreciation has been procured. If the property has been rendered more valuable by the-general improvement of the country, the defendant, and not the complainant, has contributed to that general improvement.”
    The evidence in the ease shows, that the use of the lot in question for one year is of no value. To be worth anything, it. must be rented on a lease for at least five years. Now, if the. widow be of such an age as she can not be supposed to live five years, her dower is worth nothing, and nothing can be assigned to her. On the other hand, if she can be supposed to live five years, and the sum to be paid her annually be fixed on this supposition, and she lives only two, three, or four years, she will have received an average value for five years, when in truth *!>be ought to have received nothing. How shall this be interpreted ?
    Upon the whole, therefore, it is insisted, that upon reason and authority, the only safe and practical rule is that cf the common-law — to estimate the value of the widow’s dower as at the time of the alienation; and it is confidently hoped, that upon a considerate review of the whole ground, this court will ieel disposed to restore to us the law as it stood prior to 1836.
    
      Stare decisis is always a strong argument. We beg leave'to answer it by a simple reference to the language of Chancellor-Kent, when the same argument was pressed upon him in the case of Cunningham v. Morrel, 10 Johns. 203, 212, 215.
    The attention of the court is now requested to another ground of defense.
    An early statute of Massachusetts contained this provision :
    “ And no woman that shall be endowed of any lands, tenements- or hereditaments, as aforesaid, shall wantonly or designedly commit or suffer any waste thereon, on penalty of forfeiting that part-of the estate whereon such waste shall be made, to him or thorn that have the immediate estate of freehold or inheritance in remainder or reversion.”
    A like provision was inserted in the statutes of Maine and New Hampshire.
    In each of these three states there seems to have been large bodies of uncultivated lands, neither occupied with, nor appurtenant to, any farm or other tenement, but reserved for the future benefit of the family, or held in market- as a species of merchandise, to be converted into cash for the present use of the family.
    At length the question came up as to the widow’s right of dower-in such lands. The common law was silent. It never came in contact with that species of property. It was a matter of much consideration, and came before the Supreme Court of Massachusetts, at three different periods — in 1818, 1822, and 1828. 15 Mass.164; 1 Pick. 21; 7 Pick. 143.
    The construction put upon the statute was this:
    “That a widow is not entitled to dower in lands which were-wild when alienated by the husband, but had been brought into-a state of cultivation by the husband’s grantee, at the time dower was demanded.”
    *The same rule seems to have been adopted also in Maine and New Hampshire. 4 Kent, 41.
    Now this identical statute of Massachusetts was adopted into-the State of Ohio, and took effect on October 1, 1795 ; and was-the identical statute in force at the time the right of the cornplainant, in this case, attached to the lands in controversy. It was thus, at the same time, the law of her domicile, and lex rei sitce; and now the question is, why shall not the same statute receive the same construction in Ohio as it has received in the ■state where it originated, and in the two other states which adopted it?
    It is said, to clear wild lands in Ohio is not waste.
    A man owns'300 acres of woodland in Ross county, and dies. May the widow, or her husband, on a precarious life estate, sell off the timber and firewood on 100 acres, and then exhaust the soil by crops, thus ruining the inheritance before it reaches the heir, -or may she not? This is the question. For who does not see causes in operation which will soon make make woodlands as valuable in every part of the state, as they now are in the county of Ross? The rule can not be restricted in its operation to new counties. It must embrace all or none. Nor can it be limited in duration to the period while the new country is settling. It is to operate through all coming time.
    A man in Putnam county has a quarter section of land, with a cabin, and ten acres under fence. He dies, and fifteen acres of woodland next to the clearing is set off to the widow. Now, it is ■said to be absurd and ridiculous, to say that this woman may not take the boys and add five or ten acres more to the clearing, and thus raise their own bread.
    A man in Huron county has 150 acres of land in a good state ■of cultivation, and with just the right proportion of woodland to sustain the farm. He dies. Twenty-five acres of woodland is assigned to the widow, just sufficient for repairs and fire-wood. Now, it is equally absurd and ridiculous to say, that this woman, .as soon as her husband is dead, may employ workmen and strip this twenty-five acres of its timber, and thus ruin the entire farm.
    These two instances, now representing two large classes of ten■ements in the State of Ohio — the former rapidly diminishing, and the latter increasing in the same ratio — show, that in settling the important principle involved in this cause, something *else is to be looked at beyond what may appear to be absurd and ridiculous.
    It may be observed that in the class of cases first supposed, the ■interest of the heir and the interest of the widow both unite in requiring more lands to be cleared; and therefore, in most cases, it will be done without difficulty. But in the latter class, what is. the widow’s profit is the heir’s ruin.
    There is another question which seems to demand some consideration.
    The lands alienated by the husband consisted*of seven half-sections in the refugee tract, of 320 acres each, located in various, parts of the district, and in different counties.
    Section’ 9 of the act relating to dower provides, “That the. widow applying for dower in the lands of her deceased husband, may file her petition in chancery against the heir or other person having the next immediate estate of inheritance, setting forth her right thereto, and describing the tracts of land of which she* claims to be endowed; and the court, on the hearing of such cause, shall render such decree in the premises as to them shall appear just and consistent with the rights of all the parties interested therein.”
    Section 11 also provides that the court may order the whole, dower to be assigned in any one or more counties, and out of any one or more tracts of land, if the same can be done without prejudice to the rights of any person claiming title to or holding a lien on such lands. 29 Ohio Stat. 251.
    Now, it is submitted to the court whether all the persons interested in these lands ought not to be made parties to this bill, or cause shown for the omission.
    The statute seems to contemplate that the dower may be located on one of several tracts, and that the owners of the other tracts shall make contribution. All the owners must, then, be made parties.
    Where the husband aliens land, and dies seized of other-lands, the court would doubtless order dower for the whole-to be assigned upon the lands in the hands of the heirs, because, those lands would be liable on the warranty of the husband.
    In the present case, if all the seven sections, as originally alienated by the husband, were before the court, dower might be assigned on one, and the others decreed to contribute; or if the husband died seized of other lands, these seven sections might *be entirely liberated from dower; and for aught that appears, the husband did so die seized.
    It does appear, in this case, that the defendant is the owner of three separate and distinct parcels of one of these half-sections,, .and it certainly can not be claimed that three separate and distinct bills can be filed against him.
    If' the defendants be too numerous to be embraced in one bill, that is not the case made before the court.
    Perhaps a discretion may be vested in the court. In the exercise of that discretion, it would seem that all persons materially interested should be made parties. In the present case, the alienee of the husband who has sold with warranty, it is insisted, upon every principle, ought to have been made a party; .and it is to be observed that he was made a party in the original suit in the county of Licking, where a considerable portion of the lands lie.
    If the alienee of the husband, on one section of 320 acres, lays out a farm consisting of many separate lots, it seems clear that the widow can not file her bill for dower against each of those single lots. And if the same alienee, on another section of ‘320 acres, lays out a town, with several lots, why shall not the same rule apply?
    An attempt has already been made to show that, upon general principle, Starling, the alienee of the husband, is to be regarded, in equity, as well as at law, the present owner of the 320 acres, on which the town of Columbus stands, and therefore he ought to be made a party to these proceedings. The last clause of section 9 of the statute seems to suppose that the final decree will adjust the rights of all the parties interested in the lands. 'The same section provides that the bill may be filed against the heir, “or other person having the next immediate estate of inheritance.” This language may certainly embrace the alienee of the husband, who is bound by his warranty to protect the tenant against all adverse claims, either in the shape of dower or ■otherwise.
    The law is thus laid down by Fitzherbert, 148, note a: “A. brings dower against B., de libero tenemento, in C.; and afterward, before plaint made, brings another writ in the same bill against the same tenant; this writ shall abate, although that no plaint was made before; for by Shard, one shall not have two writs •of dower, unde nihil habet, at the same time, in the same bill, •except it be on some special matter, as if the tenant purchase ■other tenements after the former writ.”
    *If such were the rule in actions at law, it can hardly be expected that a less liberal construction will be put upon our statute by a court of chancery.
    Upon the whole case, therefore, it is claimed on the part of the defendant:
    1. That the lands being wild, at the time of the alienation, the widow can claim no assignment of dower in the premises.
    2. That if she be entitled to an assignment of dower, the value is to be estimated as at the time of the alienation in 1805.
    3. That the bill ought to embrace other lands; and that the proper parties are not before the court.
    N. Wright submitted an argument on the same side.
    H. Stanbery, for petitioner. o
    The following points are made by the defendant:
    That the demandant is not entitled to dower in lot No. 264, or in either of the seven half sections, because they were wild and uncultivated at the time of the alienation by the husband.
    That if she is entitled to dower in lot No. 264, iC'must be as. signed to her according to the value of the lot at the time of the .alienation.
    That her petition can not be sustained, because of the nonjoinder of the other persons having the next estate of inheritance in the said other lots and tracts of land.
    I. The estate of dower in Ohio, from the organization of the Northwestern Territory, down to the present time, has existed, not by the common law, but as the creature of positive legislation. To determine, therefore, the nature of this estate, in .the year 1803, -when, by the coverture of the demandant, and the seizin of her husband, her inchoate right to dower attached, we must look to the state of our legislation at that time.
    We find in the ordinance of 1787 (the fundamental law under which the Northwestern Territory was organized), this provision:
    “ That the estates of resident and non-resident proprietors 'in said territory, dying intestate, shall descend,” etc. (here follows the course of descents), “ saving in. all cases to the widow of the intestate her third part of the real estate for life,” etc., and this law relative to descents and dower shall remain in full force until .altered by the legislature of the district.” 1 Chase’s Stat.
    *It will be observed that this law is silent as to waste, and makes no provision for the assignment of dower
    Next in order is the act published by the governor and judges, on July 14, 1795 (1 Chase’s Stat. 187), adopted from the Massachusetts statute of 1783, of which it is nearly an exact transcript. This adopted law does not profess to alter the provisions of the ordinance as to dower. It is an act “for the speedy assignment of dower, in all lands, tenements, and hereditaments whereof by law the widow is or may be dowable.” It continued in force until January 19, 1804, when the legislature of the state passed an act-relative to dower, repealing the dower clause of the ordinance and the adopted act of 1795.
    I do not stop to inquire whether the title to dower is to be fixed by the law in force at the time of the seizin and coverture, or at the time of the alienation by the husband-, or at the time of the-death of the husband, as it is admitted by the counsel for the defendant that the law in force in 1803 is the law of this case. The law in force at that time was the ordinance of 1787, creating the estate, and the adopted act of 1795, providing for its speedy assignment. To which of these are we to look, in settling the question of what lands the widow was then dowable ? Unquestionably to the ordinance. That creates and defines the estate, whilst the act of 1795, by its very terms, provides the remedy for asserting the right in all lands, etc., whereof by law the widow is or may be dowable, and limits the mode of enjoyment, or tenure of the estate, by the penalty of forfeiture or strip for waste. It proceeds upon the existence of an antecedent and subsisting law of dower, which could only be the law of the ordinance, for that took the place of the common law.
    Before we again recur to the words of the ordinance, it is proper to look at the condition of the country to which its organic legislation was intended to apply. The Northwestern Territory was then a wilderness of forest and prairie, with scarcely a cultivated spot in its vast extent. Large tracts of this country had become the property of individuals, residing principally in Virginia and the New England states, and the remainder was held by the federal government, for appropriation in bounties to the officers and soldiers of the revolution, residing in the various states, or for sale to individual purchasers. It was in this state of things that the ordinance was passed; a law provisional in its character, intended for a wild and uncultivated country, and to give place, in some of its features (and in this of dower estate ^especially) to subsequent state legislation, and the emergencies of an increasing population.
    The words of the ordinance regulating dower are just as comprehensive as those which regulate descents; wherever the right of the heir attaches by descent to real estate, the right of the ' widow also attaches — there is no separate clause giving the dower as an independent estate, by peculiar language; but it is annexed to all the real estate, subject to descent, and carved out of it. “The estates of resident and non-resident proprietors in said territory shall descend,” etc., “saving in all cases, to the widow of the intestate, her third part ot the real estate for life,” etc. Now, it will be admitted that the law of descent, at least, applied to the entire territory, the necessary, corollary from which is that dower, had a co-extensive application. Lands descended, whether the owner resided within the territory or without; whether they were in forest, or prairie, or under cultivation; and in all cases where they did so descend, the right to dower was saved to the widow.
    The counsel for the defendant, in his argument upon this point, merely refers to the ordinance, without comment upon its provisions; and makes the question depend upon the proper construction of the territorial act of 1795, as if that were the law of dower in 1803; and then proceeds to show that the Massachusetts statute, from which it was transcribed, has been constructed by the supreme court of that state so as not to allow the assignment of dower in wild lands.
    I admit that, in the construction of a statute adopted from another state, the construction which has been given to it by the courts of that state is entitled to consideration, especially if that construction has been uniform. If the construction has varied in the original state, being one thing at the time of the.adoption of the statute, and another thing afterward, which construction is entitled to the most persuasive force, in ascertaining the intent with which the act was adopted? Certainly, that construction which prevailed at the time of the adoption. At the time this act was adopted by the governor and judges of the territory, it had received a construction by the Supreme Court of Massachusetts, in a decision made as early as the year 1783, by which it was held that dower was assignable in wild lands. Nash v. Bolt-wood, Story’s Plead. 366, cited in Webb v. Townsend, 1 Pick. 21.
    
      This construction prevailed at the time of the adoption of the ^statute, and whilst the adopted statute was in force in Ohio; .and was not reversed in Massachusetts until fourteen years after the repeal of the statute in Ohio. At that late day, a. d. 1818, the Supreme Court of Massachusetts overruled the early construction, and held the widow not entitled to dower in wild land. Connor id. Shepherd-, 13 Mass. 164.
    The latter construction may be the better one for the Massa•chusetts statute, and yet the former be the true construction for the Ohio statute; for we may well suppose the governor and judges to have been familiar with the old construction, and to have adopted the act because of the fitness of its application, when ¡so understood, to a country abounding in wild land.
    This case of Conner v. Shepherd is, however, so strongly relied •upon by the defendant’s counsel, that it is worthy of further •notice. It has already been shown that this statute did not create or declare the estate of dower, but only provided a speedy mode for its assignment in the lands of which the widow was or might be dowable by law. -In ascertaining, therefore, whether under this act the widow should be assigned her dower in wild land in Massachusetts, it is necessary to know the law of that state which creates or defines the right of dower. This law is to be found in the old colony act of 1641. Ancient Charters and Laws of Massachusetts, 99, in the Ohio State Library. This act provides that “ the widow shall have dowry in and to one third-part of all such houses, lands, tenements, and hereditaments as her husband1 was seized of in any estate of inheritance,” and that she ■“ shall not commit or suffer any strip or waste, but shall maintain all such houses, fences, and inclosures, as shall be assigned for her dowry, and shall leave the same in good and sufficient reparation -in all respects.”
    It is sufficiently obvious that the language of this act is very different from the large and unrestricted words of the ordinanee( and it will be found that the chief justice, in delivering the opinr ion of the court, in Conner v. Shepherd, places great stress upon the special provision as to waste; and as to the repair of the houses, fences, and inclosures assigned for dower. “ This,” sa.ys he, “is all predicated upon the supposition that the estate has fences and buildings upon it, and is, in fact, in a state of actual cultivation and improvement.” Ib. 168. In the ordinance there is no such predicate for that supposition.
    Another ground very much relied upon in that case, and in the case at bar, against the right to dower in wild land, is this: *That to enjoy her dower in such lands, the widow must clear and fence the lands, which would be waste, and work a forfeiture; therefore it can not be supposed that the law has created an estate which would be lost in the use. If we admit the premises, the conclusion does not necessarily follow. The limitation as to waste does not destroy the estate, but only prescribes the mode of its enjoyment. In legal estimation, an estate in lands, especially a freehold, is valuable without reference to its actual user, and it •may be so in fact. It may confer civil rights upon the woman, or upon a second husband. Again, we may suggest a variety of beneficial uses to which wild land may be made subservient, without cutting the timber. It maybe inclosed with a fence, not made from the timber on the land, and used for pasture, or for a park, or if the trees were “ few, and far between,” it might be put in corn ; though against this last sort of use, the learned counsel for the defendant would ho doubt protest, it being the “ turning of woodland into arable,” which is clearly waste at common law.
    But the great error of this argument is in the application of the English doctrine of waste to this country. The definition of waste is, “that which worketh injury or destruction to the inheritance;” and that may be waste in one place, which is good husbandry in another. We find, accordingly, that in England, what is or is not waste, depends upon the different soils and timber, and modes of husbandry, in the different shires. In a highly cultivated country like England, the cutting down of the timber and clearing of the land for cultivation, is the worst species of waste; and it would have been so, to a great extent,- in the State of Massachusetts at so late a period as the year 1818; but this can scarcely be said of the immense forest which overshadowed this country in 1787 and 1803. To borrow a very apposite expression from the counsel for the defendant, “ this part of the common law never came in contact with an American forest.”
    Jackson v. Bronson, 7 Johns. 234, was an action for a breach of the covenant against • waste. In delivering the opinion of the court, Judge Yan Ness says: “ It is true, that what would, in England, be waste, is not always so here. 'The covenant must be construed according to the state of the property at the time of the demise. The lessee undoubtedly had a right to fell part of the timber, so as to fit the land for cultivation.” Judge Spencer, in the same case : “ The doctrine of waste, as understood in .England, is* inapplicable to a new, unsettled country.”
    *In Findlay v. Smith and wife, 5 Munf. 134, Judge Cabell says : “ The law of waste, in its application here (Yirginia), varies; and accommodates itself to the situation of our new and unsettled country.” Judge Roane, in the same case : “ In considering what is waste in this country, it is to be remarked that the common, law, by which it is regulated, adapts itself in this, as in other cases, to the varied situation and circumstances of the country. That can not be waste, for example, in an entire woodland country, which would be so in a cleared one. The contrary doctrine would starve a widow, for example, who could not subsist without cultivating her dower land, nor cultivate it without felling the timber-A clearing of the land, in such circumstances, would not be a lasting damage to the inheritance, nor a disinherison of him in the remainder, which is the true definition of waste. It would, on the contrary, be beneficial,” etc.
    So in North Carolina: “ It is not waste to clear tillable land for the necessary support of a family, though the timber be destroyed in the clearing, nor to cut wood for fences,” etc. 2 Hayw. 110; Ib. 339. And in 3 Yeates, 261, the court say, “It would be an outrage on common sense to suppose what would be waste in England, could receive that appellation here.”
    We find that this ground, so much relied upon in Conner v-. Shepherd, is neither supported by reason nor authority, and we may fairly claim that the case itself, and those which are said to-follow it in Maine and New Hampshire, is entitled to no weight in the construction of our statute, even if we had no authority to the contrary. But we have such authority. In Jackson v. Sellick, 8 Johns. 270, it is held that the estate by the courtesy attaches to wild lands; and as to waste, Chief Justice Kent observes: “ W© must take the English rule with such a construction as the peculiar state of new lands in this country requires.” The estate, by the courtesy, is a sort of correlative to that of dower, though not so favorably regarded in the law. Co. Lit. 32, 36.
    In Walker v. Schuyler, 10 Wend. 480, dower was claimed, in Sands which were wild and uncultivated at the time of' the alienation. The ease was much contested as to the question of value, and it seems not to have been doubted that the right to dower attached. See also Findlay v. Smith, 6 Munf. 164.
    *In conclusion of this branch of the case, it is well to notice the suggestion of the counsel for the defendant, that the prevalent opinion of the bar in Ohio is against the right to dower in wild land. The learned counsel is certainly mistaken in this particular. The prevalent opinion of the profession (so far as our experience goes) is quite the other way.
    2. We 'now come to the second point made by the defendant, •which is, that if the demandant is entitled to dower in lot No. 234, it must be assigned to her according to the value of the lot at the time of the alienation by the husband, excluding its present advanced value from the computation, whether resulting from the improvements of the defendant, or from extrinsic causes.
    The rule of value in the assignment of dower, where there has been a change of value since the alienation, is of great importance; and if it were an open question, would require a thorough investigation — but it is not. The very point was made and decided by this court in Dunseth v. Bank of United States, 6 Ohio, 76. It was solemnly decided in that case that the value at the assignment of the dower, exclusive of the improvements made on the land by the purchaser, was the true value. The counsel for the defendant is not understood to complain of that decision, or to ask the court to .reconsider it; but he seeks to avoid its effect by distinguishing it from the case at bar. The supposed distinction is in the fact that the Dunseth lot was partially improved, and the lot in this case wholly improved, at the time of the alienation. I admit this dissimilarity in the facts of the two cases, but I can not see that it has anything more to do with the principle decided, than the further dissimilarity of the location of the lots, the one in Cineinmati, the other in Columbus, has to do with it.
    In the argument of this branch of the case, we must take it for granted that the widow is entitled to dower in wild land — and the next question is, how is it to be assigned? What is to be the rule of value? In the Dunseth case, this court declare generally, that slower must be assigned as of the value at the time of the assignment, excluding the purchaser’s improvements. The court states ao distinction is to be observed when the lands were unimproved at the time of the alienation; they do not fix one rule for improved,, and another for unimproved ; but they establish a general rule, applicable in all cases where there is an advance in value after the alienation. If the land were improved *at the time of the alienation, and its value has advanced by reason of further improvements and other causes, or, if being so improved at the time of the alienation, its value has advanced without further improvements, by reason of other causes; or, if being unimproved at the time of alienation, its value has advanced in consequence of improvements and other causes; or, finally, if being so unimproved its value has advanced without any improvements from other causes — in all these instances (of which the case at bar is the third in the order of statement), the rule applies. The reason of the rule is, that the widow is justly entitled to the advanced value, extrinsic of the alienee’s improvements. Such improvements are not made an integer in the calculation of value ; consequently the-simplest and most obvious application of the rule is in the instance of land unimproved at the time of alienation, and of the' assignment; and it is evident that the most difficult instance in which this extrinsic value is to be ascertained, is (as in the Dunseth case) where it is confused with improvements made before and since the alienation.
    But if the question settled in Dunseth v. Bank United States-is to be again considered, it will be found that the decision is not. only conformable to reason and justice, but to the weight of authority. First, as to the English cases: Chief Justice Tilghman, in Thompson v. Morrow, 5 Serg. & Rawle, 291-295, and after him, Mr. Justice Story, in Powell et ux. v. Morrison et al., 3 Mason, 374,, have declared that no decided case is to be found in the English books upon this question. In considering it, therefore, upon the English cases, the argument must proceed upon analogies.
    These analogies are very fully stated in Coke on Littleton, 32 a,, and the corresponding note, No. 193, of Hargrave and Butler, and they are these:
    “If the heir improve the value of the estate descended, the-widow is to have her dower according to thisimproved value, and not according to the value as it was in her husband’s time; and the reason given for this is, that her title is to the quantity of the-land, i. e., one just third part.
    “ If the value be impaired in the time of the heir, the widow shall be endowed according to the depreciated value at the time of the assignment.
    “ If the feoffee improves by buildings, yet dower shall be as it was in the seizin of the husband, for the heir is not bound to warrant, except according.to the value as it was at the time of the *feoffment, and so the wife would recover more against the feoffee than he would recover in value, which is not reasonable.”
    From these instances, the following principles are deducible: The value at the time of the alienation is not the standard of value. If it advance merely by the improvements of the heir, the value at the time of the assignment is to be regarded. If it advance merely by the improvements of the feoffee, with warranty, the value at the time of the alienation — in other words, the value without these improvements — is the rule. An appreciation of value from other causes than improvements on the land is not put; but a depreciation from general causes is put, and is said to change the rule of value from what it was at the alienation to what it is at the assignment. If the widow is to suffer the consequence of depreciation from general causes, why should she not enjoy an appreciated value from the like causes, especially when it is recollected that her title is in quantity to one just third part, and that this increase does not spring from the labor or capital of the alienee ?
    Again, the feoffee’s improvements are not to be taken from him, because the warranty, upon the faith of which he improves, will not cover his loss. If this were the only reason for this rule, it would seem to follow, that where the alienee of the husband has no warranty, but without reliance of that kind goes on to improve, that then, like the heir, he improves in his own wrong, and the widow has the benefit of his labor. But a further reason is given in other books, which is, that to allow the widow to participate in such improvements, would tend to discourage them, and be against public policy. This reason does not hold in the case of increased value from extrinsic causes. We may, therefore, very safely conclude that if this question had arisen in England, the decision would have given the widow her just share in such fortuitous appreciation. In the latest English treatise on dower (Park on Dower, 117, 11 Law Library), it is said : “ With some apparent dereliction of principle, we find it asserted by Perkins, that buildings or other improvements made by the alienee of the husband, shall not be included in computation of value on the endowment of the wile.” This “ dereliction of principle,” as will be seen in the context, is the departure, in this instance, from the uniform favor which the common law shows for dower, and the nature of the estate. Mr. Park then refers to a case, as sustaining the assertion of Perkins, in the book of assize, which was, “ that a woman demanded dower of the third *part of land, and the tenant said he bought the land of her husband, not being built upon, and that he builded upon it, and she had judgment of the third part, salvis edifioiis; and it is added with some inconsistency, and no damages, because the land was amended by building upon it.” This case favors the idea that the value, not arising from improvements, was taken into the account. The judgment was not for dower, as of the value at the time of the alienation, but of the value generally, salvis edifioiis, so that nothing but what the tenant “had builded upon it” was excluded in the value assigned. Mr. Park next states the rule giving the widow the value of the improvements made by the heir, and in remarking upon the supposed distinction between the heir and alienee, he says, “ It is difficult to find any satisfactory reason for the distinction. A house, erected upon another man’s land, becomes attached to, and parcel of the freehold, and ensues the title of the land ; and if it shall go with the land to the person absolutely entitled thereto, it is not easy to understand why it shall not also become subject to particular interests in the land. The understanding of the profession, the author believes to be, that the wife shall be endowed of the land, as she finds it at the time of her title of dower consummated.” This time, of title consummated, is obviously used as synonymous with the time of dower assigned, as appears from the case in Coke Lit., cited in support of'it, which is, that when the value is impaired, she shall be endowed of the value at the time of the assignment.
    From this view of the English cases, it appears that a doubt exists as to the right of the widow to the improvement of the alienee, whilst all the analogous cases establish her clear right, at the time of the assignment, to the value from every other cause.
    The attention of the court is now requested to the American decisions; and first, to those relied upon by the defendant’s counsel. He claims that the point is definitely settled against the widow, in New York, Virginia, and Indiana, by the cases of Walker v. 
      Schuyler, 10 Wend. 480; Tod v. Baylor, 4 Leigh, 498, and Wilson v. Oatman, 2 Blackf. 223.
    The case in 10 Wend, is the last of a series of New York decisions upon the question of increased value in the assignment of dower. Two of these cases, Humphrey v. Phinney, 2 Johns. 484, and Hate v. James, 6 Johns. Ch. 258, are upon the question as to the improvements made by the alienee; and the remaining case, Dorchester v. Coventry, 11 *Johns. 510, and this case in Wendell, are upon the precise question of value from extrinsic causes. In New York, they have statutory provisions upon which these cases proceed, which specially exclude all improvements since •the sale; so that any opinion expressed in those cases, as to the •common law rule, is merely the dictum of the judge. Two of the eases were decided by Kent, as chief justice and chancellor, and -although he expresses the opinion, that, at common law, the widow would not take the improvements made by the alienee, he expresses no opinion as to her right to value from other causes, but carefully saves that question. Hale v. James, 6 Johns. Ch. 258.
    The case of Dorchester v. Coventry, 11 Johns. 510, was decided, or rather the opinion was delivered by Chief Justice Thompson. It was held that the widow was not entitled to any increased value, •but the opinion was grounded on their statute, which was construed to apply as well to extrinsic value.as to the improvements of the alienee, and no opinion is given as to the common law rule.
    In the case of Wendell, Chief Justice Savage also recites the statutes, and founds his opinion upon them. In reference to the right -of the widow at common law to the value arising from other causes than the improvements of the alienee, he says: “I am not to in quire. It is sufficient for my purpose that in this state the widow’s rights have been frequently adjudicated under a statute like the present statute, and we are not at liberty to depart from the construction that has been given to it.” Ib. 486. The chief justice then proceeds in some remarks obiter, to suggest some difficulties in the application of the rule which would give the widow the benefit of the value arising from extrinsic causes. This is the sum total of the New York eases.
    In Tod v. Taylor, 4 Leigh, 498, the distinct question was upon .an objection to the decree below, directing the dower to be allotted according to the value, with all the improvements made by ■the purchaser. The court ai'e unanimous in the reversal of the decree; but upon the question of increased value from other cause® (which was out of the case), they differ in opinion. Judge Cam (with whom Judge Cabell concurred), says that he “ considers it. the clear rule of the common law that the widow is not entitled to dower according to the improved value of the land, but must take her dower according to the value at the time of the alienation.” He refers to the following authorities : Fitz, Abr., tit. Dower, sec. 192; Perkins, tit. Dower, sec. 328; *Harg. Co. Lit. 32, a, n. 8; 1 Rep. on Prop. 346; 4 Kent’s Com. 64; Humphrey v. Phinney, 2 Johns. 484; Hale v. James, 6 Johns. Ch. 258. These authorities do not support the position, if the judge mean® by “the improved value ” anything other than the improvement® of the alienee; and even when so limited, it is by no means “the clear rule of the common law.”
    Judge Tucker says : “I think the law very clear, that in laying off the dower, improvements made by the purchaser should be excluded from, the estimate, except that improvement in the productive character of the soil, which arises from the course of husbandry. In like manner, I am of opinion’ that the accession of value, arising merely from the progress of society, and the general progressive increase in the value of lands, consequent upon increasing wealth and population, can not be thrown into the scale of the purchaser, or diminish the quantity of land to which the widow will be entitled. But on this point my brethren differ-from me.” Ib. 516.
    The only remaining case, of those relied upon by the counsel for-defendant, is Wilson v. Oatman, 2 Blackf. (Ind.) 223. The question in this case was also exclusively as to improvements made by the purchaser. Not one word is said on the other question. Judge Blackford says: “ If the improvements made by the purchaser, subsequently to his contract and possession, were to be taken into consideration in the estimate of dower, in casos like the present, the rule would tend to discourage the making of improvements, and would be contrary to the policy of the country.”
    Having now gone through all the American cases relied upon by the defendant, we will go to those upon which the demandant relies.
    The first in chronological order is Gore v. Brazier, 3 Mass. 544, which contains a dictum of Chief Justice Parsons. It is this : “If the husband, during coverture, had aliened a real estate in a cornmereial town, and at his death the rents had trebled from various causes, unconnected with any improvements of the estate, and the widow should then sue for dower, perhaps it would be difficult for-the purchaser to maintain that one-ninth only, and not one-third part should be assigned to her.”
    The next ease is Thompson v. Morrow, 5 Serg. & Rawle, 289, in which the precise question which we are now considering was made, twice argued, and decided by a unanimous court, in an opinion delivered by Chief Justice Tilgham, in which *every authority and dictum, English and American, liaving any bearing upon the question, were carefully considered. The dower was claimed in a lot in the city of Pittsburg, which, after alienation, was increased in value by the erection of buildings upon it, and greatly enhanced, besides, by the growth of the-city, and other causes distinct from any buildings or improvements made by the purchaser. It is impossible to do justice to-this opinion, or to convey the force of its continuous reasoning by any extracts. I shall, therefore, make none, except of the conclusion, in which the learned judge says: “Having considered all the authorities which bear upon this question, I find myself at-liberty to decide according to what appears to me to be the reason and the justice of the case, which is, that the widow shall take no-advantage of improvements of any kind made by the purchaser; but throwing those out.of the estimate, she shall be endowed according to the value at the time her dower shall be assigned to-her.” It will also be observed that at page 293 tho judge states-that, although the point had not been decided in Pennsylvania, the general understanding was, that the widow should have the-increase of value not arising from improvements made after the-alienation, and that his deceased colleagues, Judges Yeates and Brackenridge, were of that opinion.
    Since this decision, the same point came up in the case of Powell et ux. v. Morrison and Brimfield Manufacturing Company, 3 Mason, 347, before the Circuit Court of the United States, in the-Massachusetts district. Mr. Justice Story examines the question with more than his accustomed ability, availing himself of every light furnished by the English and American books, and arrives at this result, which I give in his own words: “Upon the whole, my judgment is, that dower must be adjudged according to the value of the land in the controversy at the time of the as.signment, excluding all the increased value from the improvements actually made upon the premises by the alienees, leaving to the dowress the full benefit of any increase of value ¡arising from circumstances unconnected with those improvements.” Ib. 375.
    Finally, we are enabled to add to these decisions the opinion of ■Chapcellor Kent, as stated in his Commentaries, upon a full review of all the cases, that “the better and more reasonable general American doctrine upon this subject is, in his apprehension, that the improved value of the land from which the widow is to be excluded in the assignment of her dower, even as against a ^purchaser, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic and general causes.” 4 Kent’s Com. 67.
    How, then, does the rule as to appreciated value stand as an American question?
    In favor of the construction claimed by the counsel for the defendant, there is but one decided case (10 Wend. 480), and that founded upon peculiar statutory provisions, and the dicta of .Judges Carr and Cabell, of Yirginia.
    In favor of the construction claimed for the demandant, we have two decided cases of high authority, followed by a solemn decision of this court in bank, and sustained by the dicta of Parsons, Tucker, Yeates, Brackenridge, and Kent.
    We feel, therefore, a strong assurance that the decision in Dunseth v. Bank of the United States will not be overruled. It was well considered and well decided. It has settled a question, -of title which ought not to be disturbed; and it is sustained by authority and reason, and the opinions of the ablest lawyers of our ■¡country.
    Assuming, then, the rule established in that case to be the rule according to which'the demandant’s dower is to be assigned, upon what principles is it to be applied ?
    In Dunseth v. The Bank, the application of the rule was very ¡simple. A single lot in Cincinnati had been conveyed by the husband, and the question was between a remote alienee of the •entire lot and the widow, and such was the case before C. J. Tilghman. All that was necessary in those cases was to deduct from the entire value of the lot the value of the improvements ¡made upon the lot. But in this case^ dower is claimed in lot-No. 264, parcel of a tract of 320 acres, which was entire at-the time of alienation by the husband, and has since been-divided into lots, sold to numerous purchasers, and improved by them,
    This subdivision has changed the nature of the estate, so that-the widow, instead of taking her dower of the entirety, is compelled, as will be seen in considering the third point, to go-against each assignee, and take her dower separately in each-parcel. We admit that, as to each tenant, she is not to be endowed to the value of his lot, so far as that value arises from the improvements put upon it. We claim that she is to have-the benefit of the value arising from all other causes, proximate»- or remote, whether resulting from the improvements made upon Mother lots of the original 320 acres, or from improvements upon the adjoining lands, and from general causes affecting the-•whole country.
    Langdon, the mortagee, was the original purchaser; he made no improvements. In 1809, Starling became the purchaser of the-entire tract of 320 acres. It docs not appear that whilst he held it in solido, any improvements were made. In 1811 and 1812, Starling, in conjunction with the owners of the adjoining lands,, laid out a town, about one-half of which was upon the west end. of this half section, which was subdivided into lots, streets, alleys, commons, public grounds, etc.
    How did the laying out of the town, the division into squares,, lots, etc., affect the rights of the widow? If labor and capital were expended, then a proper deduction for that labor and capital is to be made. But it does not appear that this division of the estate was attended with any other expenditure than the donation of public ground. In that expenditure, the land of the widow was made contributory; for ibis court has decided that the appropriation of streets, public places, etc., in a town plat, to x»ublieuses, extinguishes dower. Gwynne et ux. v. Cincinnati, 3 Ohio, 25. The widow must bear a proportional loss by this extinguishment of title in public places ; shall she not have her proportionals gain in the increased value of what remains?
    Where the purchaser preserves the estate entire, and gives it additional value from his labor and capital expended upon it, it is* reasonable that the widow should be excluded, from that increase;.. but where he-bonofits one part of the estate by the destruction of .another, a very different case is made.
    The laying out of a town upon a tract of land incumbered with dower (if we except the modicum of labor and capital required in the survey, etc.), is not the class of improvements to which the cases refer. These are actual improvements in the usual acceptation of the term — the result of labor and capital expended ; whilst •this is nothing more than a division of the land by imaginary lines — an appropriation of it to a particular use — the result of judgment or speculation, depending, in a great measure, for its success upon general causes, over which the purchaser has no control. Even in the case of the amelioration of the land by'good husbandry, Judge Tucker was of opinion that the widow was entitled to the increased value. Tod v. Baylor, 4 Leigh, 516. * Suppose this application to have been made after the town was laid out, but before the improvements were begun, how would the dower have been assigned ? If it were impracticable to assign by. metes and bounds, how would it have been as to -value ? Should the widow only have had the actual value of lot No. 1, as a tract for farming purposes (for which it had been made unfit), or should she not have had the value as a town lot? Starling could have had no just ground of complaint by reason of such ,an assignment. The accidents of a good site, a neighboring river, .a central position, its consequential selection as the seat of government, and many others, result alike to the benefit of all who have an interest in the estate.
    But after the town was laid out, Starling conveyed the unimproved lots to different persons, by which act of severance he has compelled the widow to seek her dower against each tenant in his particular lot. The question, after such ex parte partition, is between the widow and the tenant; as between Mrs. Allen and Robert W. McCoy, what, then, is the proper rule of assignment ? He received the title to his lot with this incumbrance upon it. His lot was then unimproved, and he has since expended labor .and capital in buildings, which have added to its value. Mrs. Allen, we admit, is not to have the benefit of that increase of value. It has also appreciated from other causes, such as the erection of public buildings by the state; the construction of a canal by the state, and of a road by the federal government; the general settlement and improvement of the country; the improvementa made in those parts of the city which are without the limits of the original half section ; and, finally, the improvements made upon lots of individuals in those parts of the city within the half section.
    We claim for Mrs. Allen the benefit'of all these causes. If she had any other interest in the lot than a dower interest, it could, not be denied to her ; why should a dower interest be less favorably regarded than any other incumbrance ?
    No wrong is done to Mr. McCoy by such assignment. If we take the value produced by his labor and capital, we take from him what is his own; but if, not demanding that, we take the value produced by general causes, or that which is reflected upon his lot from the improvements of his neighbor, we draw upon a fund to which we have an equal right.
    The defendant’s counsel puts a case, to show the injustice of allowing, in the aggregate of value, so much as arises from other improvements on other lots within the half-section. The error in his statement is, that the improvements made upon lot No. 49, are supposed to be taken into the account in estimating the value of No. 50; and e converso, in estimating the value of lot No. 49. It is not the actual value of the improvements upon No. 49, but the value which they reflect upon No. 50, which is considered. If a house is built upon No. 49 worth $10,000, which adds $100 to the value of No. 50, the widow, in common with the owner, has her share in this $100. She takes no part of the $10,000 of actual value, either then or when she comes for her dower in No. 49, but a mere incident or consequence of that improvement; and so, by going through the town, she does not, as is supposed by counsel, “ actually reap the benefit of all the improvements on all the lots.”
    Where the estate remains entire, and her dower is to be assigned of the entirety, if one part is improved by the alienee, and thereby another part is rendered more valuable, it might be said that she shall not have the benefit of this reflected value, for that would be taking from the defendant the result of his own labor; it would diminish the fund produced by his own industry. Such a case is put as a difficult question, by Judge Story, in Powell et ux. v. Morrison, etc., 3 Mason, 373. But where, as in this case, the entirety of the estate is destroyed, and her dower is broken up into fragments, the defendant can only claim an exemption for his own improvements. The widow has a separate estate in each lot,, and the value arising from the improvements on the adjoining-lot is, quoad that estate, extrinsic.
    Resides, it would be found to be impracticable to make a deduction ior this reflected value. It is too shadowy, too much confused with the general extrinsic causes of value, to be detected and estimated. The plain rule, and that which works no injustice, is to estimate the present value of the lot, as if it were vacant.
    3. The remaining point made by the defendant is, that the petition can not be sustained because of the non-joinder of the other persons having the next estate of inheritance in the said other lots and tracts of land.
    We hold that such a bill (if it were practicable in a case like-this, whore the population of a city must be made parties) would be clearly multifarious.
    Sections 9, 10, and 11 of the dower act of 1824) 2 Chase’s Stat. 1316), point out the mode of proceeding. ,
    ^Section 9 gives the remedy by petition in chancery, “against the heir or other person having the next immediate estate of inheritance.”
    Section 10 provides for an incumbrancer, by mortgage or judgment, upon the estate, whose -rights, being shown by cross-bill,, shall be regarded.
    Section 11 provides that where the lands lie in different counties, the petition for dower shall be preferred in the county in which the principal messuage is situated, and the court of common pleas “may order the whole dower of the widow to be assigned in any one or more of such counties, and out of any one- or more tracts of land, if the same may be done without prejudice-to the rights of any person claiming title to, or holding a lien on such land.” ^
    From these provisions, it appears that in the case of an incumbrance, which does not sever the estate, the petition may be filed against the heir, or other person having the next inheritance; but the case of an alienee of part of the estate, who holds in severalty, is not specially provided for. Cases might be put in which,, where the lands or estates (for the statutory use of these terms is synonymous) lie in different counties, and one estate is held by an alienee, and the others remain with the heir in solido, the; assignment upon a petition against both, might be made under section 11, “without prejudice to the rights” of such alienee. And in such cases, for the convenience of the petitioner, the joint proceedings might be sustained. But this is not one of those cases. Here it does not appear that any one of the estates, or any part of any one, is yet in the heir; but the entirety of the estate has been long since destroyed, and instead of seven distinct estates, as at the time of alienation, there are now perhaps seven hundred.
    It is not thought necessary to extend this argument by a suggestion of the interminable delays and perplexities, to which a joint petition against all the persons having the next estate of inheritance would necessarily lead. It is sufficient to refer the court to the case of Fosdiek v. Gooding et al., 1 Greenleaf, 45, where the question .is fully considered and decided against such joint proceeding.
    The argument thus far was written when the original case was before the court two years ago. The opinion of two out of the three judges who then sat in the case, as it is recollected by counsel, affirmed the rule in Dunsoth v. Bank United States, ^that the value at the assignment, exclusive of.the improvements made on the land by the purchaser, was the true value. The same question is again presented to the court upon the bill of review.
    The argument of the opposite counsel upon the bill of'review presents an abstract of the decisions in nearly all the states of the Union upon the subject of dower. Upon a reference to those cases, I am warranted in saying, that except in the states in which the rule of assignment is fixed by statute, there is but one case to be found (Tod v. Baylor, 4 Leigh, 498), in which it has been held that the widow is not entitled to the enhanced value, excluding the improvements of the alienee — and in that case the court was divided.
    I shall not repeat what has been already said as to the cases in Massachusetts, Maine, New York and Pennsylvania, nor refer to the cases in New Hampshire, which stand upon a statute. The decisions in the other states are referred to by Mr. Wilcox in the following order:
    New Jersey. — Pennington, 513, is cited as showing ;ithat the-widow could recover no more than the value of the third part of the land at the time of the alienation.” That case merely decides that the widow is not to be endowed of the improvements made by the purchaser subsequent to the alienation.
    South Carolina. — 2 Hill and 1 Baily are cited. The language of the court in 2 Hill is quoted from 1 Baily as follows: “The reasonableness and correctness of the rule, that dower shall be assigned according to the value at the time of the alienation, is so clearly established by principle and authority as to supersede all reasoning upon it.”
    This is not tho language of the court in the case in 1 Baily, but merely a quotation by the court of what had been previously held in 2 Hill. Here is what is said by Judge Nott, in delivering the opinion in Baily, 277 :
    “As to the time to which tho value of the land shall have refor■ehce, in the case of Russell v. McGfce, 2 Hill, 256, it is said ; ‘ The reasonableness and correctness of tho rule, that dower shall be assessed according to tho value at the time of the alienation, is so .clearly established by principle and authority as to supersede all 'reasoning upon it.’ But that opinion is in reference to the improved value afterward, without any question' having boon made with regard to the respective value at'the time of *alienation, and at the time of-the assignment of dower, and therefore may be understood to relate to the condition of the lands, rather than the value; and it would appear to me to be a more correct rule to value the lands at the time of the assignment; for it is the .land itselfj and not the value, to which the widow is primarily ■entitled. If' lands are deteriorated by tho destruction of buildings, or otherwise, she must take them in their deteriorated state. Jt would seem, therefore, that the assessment at that time ought ■to. bo the true measure of compensation.”
    Indiana. — “In this state (says Mr. Wilcox), the provision of .magna charta has been adopted; and as against the purchaser, tho value of .the widow’s dower is estimated as at the time of the .alienation.” 2 Blackf. 223, is cited. Upon reference to that ease, it will be found that tho question was exclusively as to improvements made by the purchaser. The question of appreciated value .from other causes is not touched. The language of the court is: “If the improvements made by the purchaser subsequently to his contract and possession were to be taken into.consideration in the .estimate of dower, in cases like the present, the rule would tend to discourage the making of improvements, and would be contrary to the policy of the country.
    Maryland. — This is one ol the states in which the opposite counsel could find no decisions as to the rule for estimating the value of the widow’s dower.
    In 1 Bland’s Ch. 231, I find such a decision, in Hannah K. Chase’s case. The widow, Mrs. Chase, claimed dower against the heirs in a lot which had been leased by the husband. Chancellor Bland says : “As to the value of the rents and profits, one-third of the rent reserved by the lease to Bryden, and no more, can be recovered during that term. After that time, the actual value must be the criterion. For, as it is said, if a wife be entitled to dower of land worth no more than $5 per acre, and the heir by his industry, or by building thereon, makes it worth $50 per acre, the widow shall have her dower according to the improved value. So, on the other hand, if the property be impaired, she can only recover according to the reduced value. Co. Lit. 32, a. But the heir is entitled to no allowance for melioration or improvements. The account of the rents and profits must be taken according to these principles.”
    Kentucky. — 6 J. J. Marshall, 591, and 3 Dana, 318, are cited as establishing the rule that the value at the *time of alienation is the true value. The case in Marshall (decided in 1831) did not involve the question, but, as it might afterward arise in the case, the court say: “If the husband had alienated the land in his lifetime, seizin should be given to the wife of a third in value, according to the condition of the land at the date of the alienation.” The authorities cited by the court are: Perkins, tit. Dower, sec. 328; Harg., note 193, Lib., 1 Co. Lit.; Humphrey v. Phenny, 2 Johns. 484 ; Dorchester v. Coventry, 11 Ib. 512; Shaw v. White, 13 Ib. 179.
    The English books are upon the question of improvements made by the purchaser; and the New York cases, as has been shown, are upon a statute.
    If, by the “ condition of the land,” we are to understand the improvements upon it, according to the distinction pointed out by Judge Nott, in 1 Baily, 277, then, as between the widow and a purchaser, there can be no doubt of the correctness of the rule. The value, so far as the state of the improvements is concerned, must be in reference to the condition of the land at the time of alienation. An appreciation from other causea than a change' in the mere condition of the land itself, is what we go for. The case is Mahoney v. Young, 2 Dana, 588, decided in 1835. Mrs. Young applied for dower in lands alienated by her husband to Mahoney. The circuit court had. decreed her for dower the one full third part of the whole tract, including the improvements made by Mahoney. The court of appeals held this assignment erroneous. They say: “An estimate should have been made of the value of those improvements, and after deducting the amount from the. total value of the whole premises in their present improved state, a decree should have been rendered in favor of the complainant for one-third of the balance so reduced.”
    All that we have to say of this rule is, that Mrs. Allen will be satisfied with precisely such a decree.
    So stands upon authority the right of the widow to partake of the appreciated value arising from other causes than the improvements of the purchaser. In England, it has never been questioned. In this country, wherever, when not settled by statute, it has been touched, with a solitary exception, it is sustained. We shall hardly find a question upon which so many of the greát names in American jurisprudence are arrayed upon the same side.
    *A printed record of seven cases in dower from the county of Hamilton is also presented by the opposite counsel. In one of these, Margaret Dickey v. Trustees of Cincinnati, no decree appears to have been had. Decrees in five of the others were had at two terms — July, 1822, and June, 1824. When it is recollected that about thirty-five terms of the Supreme Court have been held in Hamilton, it seems somewhat singular that the dower decrees of only three terms are presented. Who can say, if this sort of authority — the mere record of the case, in which it does not appear what was argued, or what was submitted to without argument — is to overrule solemn decisions in bank, where are we to stop ?
    Why are no records brought from other counties ? There can be no question but there are hundreds of cases of decrees in dower in other parts of the state; and there is just as little question, that in nine out of ten of these cases, at least, the decree is for assignment according to the value at the time of assignment. It is true, it does not usually happen that the time between the alienation and the assignment is as great as in the ease at bar, nor the difference in value so important; but in this state, especially in the last ten years, there has been a constant appreciation, and even the lapse of a year would make a great difference.
    I admit that much respect is due to circuit decisions, when they have been long acted upon, and a uniform practice and understanding have grown up under them. This is not the case with these decisions. The practice has been the other way; and no argument against their notoriety can be stronger than the fact, that the Dunseth case arose in the county ot Hamilton, and no notice is taken of these cases, except in reference to what was said to have been held in one of them. The court and the bar seem alike to have forgotten them.
    If, then, those cases were not well decided, should they be followed, if the law were now for the first time to be settled in bank ? It would be difficult to answer that question in the affirmative. But something more is asked of the court by the opposite counsel. The question is not now for the first time to be settled. A decision in bank has been had — nay, two decisions — ■ and now the court is asked to reverse those decisions, and retrace their steps, that the reported cases may conform to the decisions on the circuit.
    *G-oddard and Converse, on the same side.
   Judge Wood

delivered the opinion of the court:

It is made a question for the defense, whether the proper party defendants are before the court. The objection lies at the foundation of the suit, and for that reason should be first examined and disposed of. If it is well taken, we can not proceed to a decree. Other parties must be brought before us, and we ought to hear them before we decide a principle affecting their rights. This is the more necessary, because we are engaged in re-examining a doctrine that has been settled in this court, and promulgaged as a rule of property. In such a case we are required to proceed with circumspection as well as with deliberation. Possibly new parties may present new views, and if a final decree can not be pronounced without bringing such parties into court, they should be so brought in, and opportunity given them to be heard before any step is taken by which their rights may be compromitted.

The lot of ground, of which dower is sought by this petition, is scpai-ated from a much larger entire tract, which was owned and aliened by the husband in its entirety. In addition to this, that tract is but one of seven separate tracts thus owned, and all aliened at the same time and by the same conveyance.

The statutory provision giving the remedy in chancery directs that the widow may file her petition against “the heir or other person having the next immediate estate of inheritance.” It also empowers the court 11 to render such decree in the premises as shall appear just and consistent with the rights of all the parties interested therein.” The same statute empowers the court to assign the dower in the-whole of several tracts in any one of them, “ if the same can be done without prejudice to the rights of any person claiming title to, or holding a lien on .such lands.”

The obvious intent of these enactments is to clothe the court with discretionary powers to simplify and expedite the assignment of dower in proper cases. A leading case of this class is, where the next immediate estate of inheritance, in several tracts of land, descends to the heir, between whom and the claimant of dower there is no third party interest. Here the parties in interest and the subjects to be litigated are, in every point, identical. There is great convenience in comprehending all their rights in a single suit. This not only tends to .narrow *neeessary litigation, it enables the court, very often, to do more exact equity between the parties. The same may be alleged of the single alienee of several tracts of land, who still retains title and possession. The statute embraces these and similar appropriate cases, enlarging the discretionary power of the courts for boneficient purposes. But it never was intended to coerce a joinder of' parties, having no privity of estate, no necessary legal connection, and whose interests might be adverse. The inconveniences, nay, the impracticabilities of such a joinder of parties, are familiar to the profession and to the court. Rules of practice have been carefully constructed to prevent these, and we can not agree that their subversion was intended by our statute. Where the heir, or the alienee of the husband has subdivided, and again aliened the estate into separate parcels, the incumbrance of dower follows separately, attaching to each separate subdivision its claim, not proportionate to the whole, but equal to its value in the particular case. Hence we are of opinion that, in this case, the proper parties are before the court.

The second question, in what seems to the court the appropriate order for considering, the points in the case is, can the widow claim to be endowed of lands lying wild and uncleared of timber during the husband’s seizin, and at the time of his alienation? This question is raised upon a technical' nicety of the common law. Ono of the incidents attached to a dower estate is its forfeiture for waste, and a prominent act of waste is converting ■woodland into arable.

Thus, it is argiied, dower in wild lands is a'useless property. It can be'of no value to the widow in its wild state, and it can not he reduced to cultivation without forfeiting the estate itself.

This argument is too subtle to be received as premises for the conclusion it seeks to enforce. The common law doctrine of waste has never been recognized in Ohio, either as an incident of title or as affording a remedy for wrong.

With us, as is justly arguod for the petitioner, dower is of statutory creation. It was introduced by our fundamental law, not in the technical, legal phraseology of the old books, but with very little reverence, instead, for cither Littleton or Coke, or even Glanville. And it is declared to be of “all lands of which the husband was seized, as an estate of inheritance, at any term during the coverture.” This is an enactment of the state ^government in the year 1805. Under this statute, dower, in this case, has its origin; for we hold that the widow’s right accrued at the death of the husband. The members of this legislature knew the condition of the country; that it existed mostly in wild lands', and they employed the broadest and most comprehensive language to subject “all" these lands to the right vested in the widow. Had the waste notion now set up been previously acted upon, it might well be maintained that this statute was worded purposely to introduce a new rule. It is the opinion of the court that wild, uncultivated-lands have always been subject to dower in Ohio.

These points, however, are but the outworks of the defendant’s case. The great matter in contest is the period of fixing the value and the rule lor ascertaining the amount. Alter many litigations, adjudged upon conflicting principles, both these points were solemnly settled in this court, and the result ordered to be authentically published, for the information of the citizens, in Dunseth v. Bank of the United States, 6 Ohio, 76. We have reheard that case in this, and a majority of the court found themselves satisfied with it. A further hearing was asked and conceded. We have listened patiently to ever}*- new suggestion, and have reconsidered previous arguments. The result is, that a majority of the court is confirmed in the right decision of the Dunseth case.

The counsel have thoroughly searched the whole subject, and placed it clearly before us. It appears that different rules, in respect to dower, have been adopted in different states. That in some it has been hardly agitated, and, in others, very earnestly discussed. In consequence of this, we have felt at liberty to decide upon a rule for our selves.

Before the decision in Dunseth v. Bank of the United States, several cases had been prosecuted in Hamilton county. The record statements of some of these cases are presented, as part of the printed arguments for the defendant. Considered in the light we look at them, these cases seem to explain how the rule in Dunseth’s case came to be established.

It wa s about 1822 that the first cases were heard in. the Supreme Court of Hamilton county. It is evident from the transcripts that dower was discouraged by the bar, the bench, and the mass of those engaged in the administration of justice. It conld not be otherwise, where there would be many claims of dower, for the widows of the pioneers, whose lots of ground *bad been passed away, for little considerations, and in great negligence with respect to properly executed conveyances.

The rule declared by the court was, the value at the time of the husband’s alienation. The findings and judgments under this rule were not well calculated to keep it in countenance. Thus, in the case of Ewing v. Ennis, referred to twelve jurors, their verdict was, that, at the alienation in 1801, the dower interest was worth nothing; but at the husband’s decease, in 1818, it was of the value of $45 per annum. The widow, under the rule, recovered nothing for her dower. There was too evident injustice in this, and a strenuous effort was made not to allow an extension of the rule beyond the value at the time of the husband’s decease. This prevailed for a few cases, but the profession were not satisfied with it. The struggle for value at the time of the demand continued until the whole subject was brought before us in the Dunseth case, in 1833. The decision then made is far from being acceptable to all.

It is a beautiful theme for declamation, but that is out of our province. Much may be said for the widow, and something for the purchaser in possession. Generally, there is a gentleman go-between, who speculates, at last, upon both, or loses his prey altogether. But the correct rule can look at none of these.

The dower interest of the wife, in all the lands owned by the husband during the coverture, is not of a character to be sprung upon any purchaser or party in possession. The law has taken care to give it a public character, and has provided a mode for its relinquishment. Every purchaser who carefully traces his title, and obtains information of the chain of grantors, under whom he claims, is enabled to ascertain if a dower incumbrance stand out against him. If he delay to extinguish it, the fault is his own. It is no impeachment of the rules of law, or the developments of time and circumstances, if they work together to make his negligence result in a hard case upon his pocket. The case before us is appropriate for explanatory use.

The lands were wild in a wilderness. The widow claimant lived in a far remote country, ignorant of all her rights. When she became acquainted with those rights, it could not be more her duty to demand them, than it was the duty of the party in possession to hasten an adjustment. Can he complain, if, calculatingly, she waited for a great anticipated rise of property, before she fixed her right of amount by a demand? The party in possession can cause assignment of dower. The widow can delay, or hasten *her demand by the appropriate suit. We give the preference to the widow, when both parties have remained inactive.

We lay out of the case the learning, quaint and almost incomprehensible as much of it is, which is displayed in the cases and dogmas cited for the defendant. The citing the heir or warrantor that the covenant of warranty may be tried, and the damages recoverable ascertained, as the rule of value for the dower maybe specified. Whilst the court were building up the nothing value, in dower, they were adjudging most scorching damages upon covenants of seizin. This matter was set right in 1827, in the cases of Backus’ Adm’r v. McCoy, and Robinson v. Neil, 3 Ohio, 218, 525. And in 1833, Dunseth against the Bank, introduced the rule in dower, to which the majority of the court have determined to adhere.

It is considered that the statute laws of Ohio,«from the provision in the ordinance, and running through every enactment to this day, contemplated dower as a plain unentanglod interest of the wife in the real estate of the husband. The remedy given to obtain it, when refused, is made simple and direct. It is all an honest, homespun concern of our own, standing distinct from precedents and' analogies of other countries, and upon a basis sufficient to sustain it.

Dissenting opinion, by

Judge Hitchcock:

The decree which was sought to be reviewed in this case was rendered by this court at its December term, 1836. Differing from a majority of the court rendering that decree, and differing from that same majority in the decision of this case, which goes to affirm it, it seems to be proper, considering the importance of the principle decided, that I should state the reasons which have led me to a different conclusion from that arrived at by my brethren.

The original case was an application by Mary C. Allen, as the widow of George W. Allen, for dower in a certain town lot in the town of Columbus. The facts of the case were not multifarious. In 1801, George W. Allen was possessed of seven half-sections of land in the Northwestern Territory, now situated in the counties of Licking, Fairfield, and Franklin, containing 320 acres each, and being parts of the Refugee tract, so called. In 1803, he intermarried with the complainant. In 1805, he mortgaged the lands to John Langdon, by deed, executed in some of the Eastern states, probably Now Hampshire, *and in 1806 died. In 1809, proceedings by scire facias were had upon this mortgage, and the lands were sold at sheriff’s sale to Lyne Starling. At the time of the execution of the mortgage, and until after the sheriff’s sale, the lands were wild and uncultivated. Neither George W. Allen nor the complainant were ever within the Northwestern Territory, nor within the State of Ohio. In the year 1812, Starling, in conjunction with others, laid out the town of Columbus, about one-half of which is located on one of the half-sections mortgaged to Lang-don ; and in the same year the seat of government of the State of Ohio was established in the town thus laid out. As an inducement to procure the location of the seat of government, Starling and those connected with him in laying out the town, made donations to the state, in land or otherwise, to the amount of $50,000 or more. The defendant owns lot No. 264, in fee simple, deriving title from Starling. Upon this lot .large and valuable improvements have been made, and it-is in the heart of the city. The defendant, also, owns two other lots in the city, on which improvements have been made, and he has contributed largely in taxes and otherwise for the general improvement of the place. To recover dower in. lot No. 264, the plain tiff brought her suit. Her petition was filed twenty-nine,years alter the land was alieped by her husband, and twenty-eight years after her right of dower was consummated- by bis death.

The court decreed in favor of the complainant, and decided that she was entitled to be endowed according to the value of the grounds, at the time of the assignment, excluding increase of value from improvements made by the alienee, but including increased value from other extrinsic and general causes.

To reverse this decree, this bill of review has been filed; and upon the hearing, the bill has been dismissed, thereby affirming the original decree. Believing the decree to be wrong in principle and upon authority, I deem it proper to state the reasons upon which my opinion is founded, and shall do it in as succinct a manner as the importance of the case will justify.

Dower is of ancient origin ; so much so, that it is uncertain when it was first introduced into England. By the common law, the wife was entitled to the use, during her life, of one third part of the lands and tenements which were her husband’s during coverture. Co. Lit., ch. 5, sec. 36, 37. It is said by the editor of the eleventh edition of Coke’s Com. upon Lit., “ The ^reasons why the law gave the wife dower will appear, if we consider how the law stood anciently; for, by the old law, if this provision had not been made, and the party at the marriage had made no assignment of dówer, the wife would have been without any provision, for the personal estates even of the richest were then very inconsiderable; and before trusts were invented, which is but lately, the husband coiild give his wife nothing during his own life ; nor could he provide for her by will, because lands could not be devised, unless it was in some particular places by custom, till the statute of Henry Till.” Coke’s Com. 31, n. 178, a, 15 Ed. Hence the indulgence with which dower was treated by the courts, and hence the reason why it became coupled with “life and liberty,” as the three things which were peculiarly favored in law. But the times have changed, circumstances have changed, and in accordance with, the maxim, “ that when the reasons of the law cease, the law itself should cease,” this principle no longer exists in England. By the statute of 3 and 4 William IY, it is enacted “that no widow shall be entitled to dower in any land which shall have been absolutely disposed of by her husband in his lifetime or by his will.”

In most of the states of this Union, the principles of the common law upon the subject of dower have been adopted, either as the common law of the land or by statutory provision; and the widow is entitled to dower in all the lands of which her husband was seized, as an estate of inheritance during the coverture. The same is the law in this state. In Connecticut, Yermont, North Carolina, and Tennessee, it is different. In those slates the widow can only be endowed of the lands of which the husband dies seized.

Such being the principle of the common law, as well as the laws of the several states and of this state, if we can ascertain the rule adopted in England and our sister states in the assignment of dower, where lands have been aliened during the lifetime of the husband, it would seem to be proper for this court to adopt the same rule. From the most careful examination which I have been able to give the subject, it seems to me to be clearly established that the rule adopted in such cases in England at an early period, and continued without variation, was that in such case the widow should be endowed according to the value of the property at the time of the alienation by the husband and not at the time of the assignment. With a single exception the same *rule has been adopted in every state in the Union where the common law doctrine of dower has been recognized. The same rule, too, was adopted in this state, and prevailed until the decision of the case of Dunseth v. Bank of the United States. 6 Ohio, 76.

As to the case last cited, it seems to me proper to place it out of view as an authority in this case, because that case is now open upon a bill of review and can not be considered as finally disposed of.

But before proceeding further in the investigation of this part of the case, it may be proper to examine a preliminary point made by the claimant’s counsel. It is claimed by them that the right of dower in this case, so far as respects the extent to which the widow shall be endowed, depends upon the ordinance of 1787, •which was the law upon this subject in 1803, when the complainant intermarried with her late husband, George W. Allen. If, in this, counsel are correct, it would seem to me there must be an end of the case; for, to my understanding, the ordinance clearly enacts the principles of the laws of Connecticut, North Carolina, Yermont, and Tennessee. It provides that the widow shall be endowed of the lands of which her husband died seized, and it makes no provision for dower beyond this. It is in these words:

“ That the estates, both of residents and non-resident proprietors, in the said territory, dying intestate, shall descend to and be distributed among their children and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parents, in equal parts, among them; and where there shall be no children or descendants, then in equal parts to the next of kin in equal degree; and among collaterals, the children of a deceased brother or sister of an intestate shall have, in equal parts, among them, their deceased parents’ share; and there shall, in no case, be a distinction between kindred of the whole and half blood; saving, in all cases) to the widow of the intestate the third part of the real estate for life, and one-third of the personal estate; and this law, relative to descents and dower, shall remain in full force until altered by the legislature of the district.” 1 Chase’s Ohio L. 66,.

This law makes provision for the manner in which the estate of an individual dying intestate “shall.descend and be distributed.” His estate can not descend until he is deceased, and then only that estate of which he is seized at the time of his death. This law, *too, makes provision for the disposition of the whole estate, both real and personal, and it makes no difference in the manner of the descent or distribution, except as to the widow. “Saving in all cases to the widow of the intestate, her third part of the real estate/or K/e, and one third-part of the personal estate.” “Saving,” what from? Unquestionably from that which is the subject matter of this particular legislation. And that was the estate of which a proprietor, whether resident or non-resident, might die seized. No other real estate could descend, no other personal estate could be distributed, and of no other could a widow, under this law, be endowed. It seems to me, that under the ordinance, there would be the same propriety in saying that the widow should have one-third of the personal estate of which her husband was possessed during coverture, as one-third.of the land of which he was seized during the same period.

It may bo remembered further, that in that part of the law in which the shares of the heir and widow are provided for, dower is • not named, although it is in a subsequent clause.

If the inquiry should be made why Congress should, by this ordinance, adopt a different rule as to dower, from that adopted at common law and in some of the states in the Union, the answer may be found in the argument of claimant’s counsel. “ The Northwestern Territory was then a wilderness of forest and prairie, with scarcely a cultivated spot in its vast extent. Large tracts of this country had become the property of individuals, .residing principally in Yirginia and the New England states; and the remainder was held by the United States for appropriation in bounties to the officers and soldiers of the revolution, residing in the various states, or for sale to individual purchasers.” It might be added that three millions and a half of acres of land in this same territory were the property of the State of Connecticut — a state in which the widow was never endowed, except of the lands of which her husband died -seized. It was pr-obably foreseen that lands thus owned and thus to be brought into market would become like articles of merchandise, and with almost the same facility as goods and chattels, pass from hand to hand. To establish the same rule as to dower for a country so situated, and for a country too, where, by the same organic law, anRndividual was allowed to dispose of his real estate by will or deed, would bave'boon highly impolitic. It must, to a great extent, have operated to prevent the alienation of land. For it will be seen by the same section of the ordinance, that although provision is made that “real ^estates maybe conveyed by lease and release, or bargain and sale, signed, sealed, and delivered, by the person, being of full age,, in whom the estate may be, and attested by two witnesses,” etc., yet no provision is made as to the manner in which a married woman may divest luv-self of her interest in land, or relinquish a right of dower. It was not until August, 1795, that there was any law in the territory authorizing a married woman to convey land; and then a law for that purpose was adopted from Pennsylvania. 1 Chase’s Ohio L. 186. Nor was it until 1804, that provision was made whereby a wife could relinquish dower.

Can it be believed that if Congress, in the adoption of the ordinance of 1787, which was the organic law of the territory, had intended that the wife should be endowed of all the land of which the husband was seized during coverture, they would not have made some provision by which she might release this right? The circumstance that no such provision was made, operates strongly in my mind to lead to the conclusion that they intended nothing further than what the language used imports, that she should be endowed of those lands, and those only, of which the husband was seized at the time of his death.

In this law there was no change until after the organization of the state government. The object of the law of 1795, entitled “ a law for the speedy assignment of dower,” 1 Chase’s Ohio L. 187, is well defined by its title. It does not proscribe to what extent a widow shall be endowed, but the manner in which she shall obtain her dower in those lands in which she is entitled to it.

I have probably taken up more time in the examination of the ordinance upon the subject of dower than was necessary, and more than I should have done, but for the importance counsel have attached to it. Clearly to my mind, under the ordinance, the complainant in this case would not have been entitled to dower, because the land in which dower is claimed, was aliened by her husband in his lifetime.

On January 19, 1804, the legislature passed “an act regulating dower,” in which it is expressly provided, “that the widow shall be entitled during her life to the use of one third-part of all the real property that her husband was' seized of during coverture, unless she shall have joined with her husband in the conveyance.” 1 Chase’s Ohio L. 395. By this act the common-law principle with respect to dower was adopted, and at the same time that the legislature adopt this principle, they provide the *way in which the wife may relinquish her right, and that is by joining with her husband in the conveyance.

The act of February 12, 1805, upon the same subject, repealed the law of 1804, but did not change the principle as ‘to dower. This latter law was in force at the time the mortgage to Langdon was executed. The petitioner did not join in that conveyance, and I do not, as at present advised, see why under its provisions she is not entitled to dower.

I will not proceed to ascertain what was the rule adopted in England, with respect to the assignment of dower where lands had been aliened in the life of the husband. At a very early period, a different rule was adopted, where the demand was made of the heir, and where of an alienee of the husband. In the one case, the widow was to be endowed as of the value of the land at the time dower was assigned; in the other, as of the value at the time of alienation. “If the husband make a feoffment in fee of lands, and the feoffee builds thereon, and improves the same greatly in value, yet the wife of the feoffee shall have dower only according to the value in the husband’s time.” 2 Bac. Abr. 368. If the heir improve the land by building, or sowing, the wife shall recover her dower with the improvements upon it, because by her husband’s death her title to dower was consummated, and the improvements, as to her part, were quasi upon the land.” Ib. The same principle is laid down in Coke upon Littleton, 32, a, and Hargrave, n. 193 to Coke Lit. 1, says, “if feoffee improve by buildings, yet dower shall be as it was in the seisin of the husband.” To sustain which position he cites 17 Hen. 3, Dower, 191, and 31 Ed. 1, Voucher, 288, and adds, “ for the heir is not bound to warrant, except according to the value as it was at the time of the feoffment, and so the wife would recover more against the feoffee, than he would recover in value, which is not reasonable.” Chancellor Kent, in treating on this subject, says, “ In cases of alienation by the husband, the general rule is, that the widow takes her dower according to the value of the land at the time of the alienation, and not according to its subsequent increased or improved value. This was the ancient and settled rule of the common law, and the reason of the rule is said to be, that the heir was not bound to warrant except according to the value of the land as it was at the time of the feoffment; and if the wife was to recover according to the improved value subsequent to the alienation, she would recover more against the feoffee than he would recover of the heir. *The reason assigned in the old books has been ably criticised and questioned in this country ; but the rule itself is founded in justice and sound policy, and whether the land be improved in value or be impaired by the act of the party subsequently, the endowment in every event of that kind, is to be according to the value at the time of alienation, in case the husband sold in his lifetime; and according to the value at the time of the assignment, if the land descended to the heir.” 4 Kent’s Com. 65, 66. Whether the reasons assigned in the old books for this rule are or are not satisfactory, is not very material so long as the rule itself “is founded in justice and sound policy.’’

These authorities, without quoting others, are sufficient to show what the common law rule upon this subject was, and I am not aware that upon this point there is any difference of opinion. They show further that this rule was established as early as 1230, and has continued in force in the country where established more than six hundred years.

The common law principle of dower having been adopted in most of the states of the Union, it was to have been expected that the rules established at common law with respect to its assignment would be adopted; and so we find it. Previous to 1819, not a case has been found in any one of the states, recognizing any other rule than that dower, in case of alienation, should be assigned according to the value of the property “in the seizin of the husband.” And even at the present time it is not known that any other rule has been established in any of the states except in Pennsylvania, although perhaps there may be some doubt with respect to Kentucky, in consequence of a decision reported to have been made in that state, as late as in 1833. In making these remarks, I do not forget the ease of Powell et ux v. Morrison and Brimfield Manufacturing Company, 3 Mason, 347. This was a case decided by Judge Story, in the Circuit Court of the United States, in Massachusetts. Although the opinions of that learned judge will be by me always held in the highest estimation, yet his decisions upon a question concerning the internal policy of a state can not be considered as the law of that state until adopted by its courts, and I do not find that the courts of Massachusetts have followed his decision in this case.

Chancellor Kent, after using the language before cited, proceeds thus: “This is the doctrine of the American cases, and they are in conformity with the general principles of the English law, as to the time from which the value of the dower is to.*be computed, both as it respects the alienee of the husband and the heir.” 4 Kent’s Com. 76. In the case of Humphreys v. Phinney, the same jurist, in delivering the opinion of the court, says, “ The widow is not entitled to dower according to the improved value of the land, in case of alienation. This is the rule prescribed in such cases by the act, 4 N. T. Laws, 616, and the statute did not, in, this respect, introduce a new rule, for such was the law as understood «and declarad in the most ancient .decisions of which we have any report.” And so it was decided. 2 Johns. 484.

In the case of Dorchester v. Coventry, which was also an .action of dower, Chief Justice Thompson, in delivering the opinion of the court, after remarking that the case could not be distinguished from that of Humphrey v. Phinney, before cited, says, in speaking further of that case, ‘,‘the language of the chief justice is plain and explicit, that the widow is not entitled to dower ac •cording to the improved value, and all the cases referred to as analogous go to establish this point. The statute (1 N. Y. L. 60) can not admit of any other reasonable interpretation. It declares that the dower of any land sold by the husband shall be according to the value of the land, exclusive of improvements made since the sale. And it can not be presumed that the legislature intended to make a distinction between improvements and the increased value of the land. The same principle applies to both. 11 Johns. 509.

Before leaving this case, it may be proper to remark that precisely the identical principle, which is contended for in the case now before the court, was contended for in the ease of Dorchester v. Coventry, and that principle is this: that although the widow is not entitled to the benefits of improvements made by the alienee, yet she is entitled to the benefit of the increased value of the land from extrinsic causes. And the dictum of Chief Justice Parsons, in Gore v. Brasier, was relied on by the counsel for the plaintiff. Still the court did not see the force of the distinction, but say expressly “that the same principle applies to both.”

It is argued, however, by counsel that this authority must be disregarded, because the court's in New York are governed by the statute of that state, and not by the principles of the common law. Chief Justice Kent, in the case of Humphrey v. Phinney, says, and surely he ought to know, “the statute did not in this respect, introduce a new rule, for such was the law as understood *and declared in the most ancient decisions of which we have any report.”

I have not the statute of New York before me, but according to the statement of Chief Justice Thompson, in Dorchester v. Coventry, before quoted, “ it declares that the dowrer of any land sold by the husband shall be according to the value of the land exclusive of improvements since the sale.” -What is the rule of the common law? “If the husband make a feoffement in fee of lands, and the feoffee builds thereon, and improves the* same greatly in value, yet the wife of the feoffor shall have dower only according to the value in the husband’s time.” 2 Bac. Abr. 368. Or according to Chancellor Kent, “the widow takes her dower according to the value at the time of alienation, and not according to its subsequent increased or improved value.” “ This,” says he, “ was the ancient and settled rule of the common law.” 4 Com. 65. Now if there be any substantial difference between the rule as prescribed by the statute of New York, and the common law rule, I must confess I can not see it. The statute prescribes that ■“ dower in laud sold, shall be according to the value of the land, exclusive of improvements since the sale.” The common law says that “the widow takes her dower according to the value at the time of alienation, and not according to its subsequent increased or improved value.” Where is the difference? If there be any, the statute is more favorable to the widow than the common law. But the courts in New York say there is none, and it appears to me that in this they are correct. The truth is, in that ■state, the rule of the common law has been embodied in their ■statute. The rule remains the same, and it is in vain for the counsel to attempt to evade the authority of the cases in that state, by saying they are the mere constructions of a statute.

The same question came before the Supreme Court of the State of New York, in the case of Dolf v. Basset, decided in 1818, and the court again held that “ dower of land aliened by the husband, in his lifetime, is to be assigned according to the value of the land at the time of alienation. 15 Johns. 21. ¡

Again, the same court had the same subject under consideration 1 in the case of Walker v. Schuyler, decided in 1833. 10 Wend. 480. The great question in this case, as well as in that of Dorchester v. Coventry, was whether the widow was entitled to the benefit of the increased value of the land not arising from the improvements made by the alienee, and the court held that she was not; thereby sustaining their former decisions.

*In the case of Shaw v. White, 13 Johns. 179, the court say, “ the widow does not have the benefit of improvements, or of the increased value of the land.”

I will refer to one more case, and only one more in New York, and that is the case of Hale v. James, 6 Johns. Ch. 258. And this case is referred to the more particularly because it was a case decided by Chancellor Kent, and strong reliance is placed upon, the opinions of that jurist by the complainant’s counsel, to sustain themselves in the position which they assume in this case. This-case was decided in 1823. It was a petition for dower. The land had. been mortgaged in 1814, the equity of redemption was released in 1817, the defendant took possession in 1819, and the husband died in 1821. It was held that as the mortgagee continued in possession alter the mortgage was executed, the alienation did not take-effect until 1817, when the equity of redemption was released. In 1817, the lands were worth §7,333, and in 1821, $6,166-The defendant insisted that the widow should be endowed according to the value of the land in 1821, when the husband died, and' her right of dower was consummated. But the chancellor held otherwise. He says, “the rule is fixed and steady, that whether the land be improved in value, or whether it be impaired in value in the time of the heir, the endowment is still to be according to the value at the time of the assignment. And why should not the rule be equally fixed in the present case? There is no color for the suggestion in the books, that the time is unsettled, and depending upon the volitions of cither party. The rules of law are not subject to such alterations; and it is settled, from time-immemorial, and on principles of justice and sound policy, that the value of dower in case of alienation by the husband, is to be taken at the time of alienation, and not subsequently, and the rulei is not to bo disturbed to suit the views of one party.” It must bo borne in mind that the value of these lands had depreciated, still the widow took her dower, not according to this depreciated value, but according to the value at the time of alienation. If she is allowed to take in such case according to the value at the time of alienation, shall she not be compelled to do it when the land has increased in value?

The chancellor concludes his remark upon this part of the case-by saying: “Take one case with another, the land is more likely to increase than to diminish in value; because land is almost everywhere, in this country, in a state of rapid improvement, and the widow would be the gainer, in most cases, over the purchaser, *if we had it in our power to dislocate the rule of computation, and transler it from the time of alienation to the time of the death of the husband.”

These authorities are certainly sufficient to show that in New Tork, at least, the law is well settled, that a widow shall be endowed according to the value of the land at the time of the alienation, without taking into the computation any increased value, whether arising from improvements made upon the land subsequent to the alienation, or from other extrinsic causes.

The same principle prevails in Massachusetts, 9 Mass. 8, 221. In New Hampshire, 2 N. H. 56. In New Jersey, Penn. 513. In South Carolina, 2 Hill, 256; 1 Bailey, 281. In Indiana, 2 Blackf. 523. In Virginia, 4 Leigh, 509.

The case of Tod v. Bayler, 4 Leigh, 509, was decided in the -court of appeals of Virginia in 1833. The cases of Thompson v. Morrow, 3 Serg. & Rawle, 291, and Powell and wife v. M. & B. Manufacturing Co., 3 Mason, 375, were before the court and relied -upon by counsel in argument. Still the common law rule was adhered to. Judge Carr says, I consider it the clear rule of the common law, that where the husband aliens during coverture, •and the widow claims dower after his death, she shall not be entitled to dower according to the improved value of the land, but must take her dower according to the value at the time of the alienation.” If she takes according to the value at the “time of the alienation,” and this is the language of Kent and other writers upon the subject, surely increased value, no matter from what cause it arises, is excluded from the computation.

Having thus ascertained the rule which has been established -at common law, and in several of the states, for the assignment •of dower where the land was- aliened by the husband, it may not bo improper to inquire what principle has been adopted in this state upon the subject. Considering our circumstances, and the situation of our country, it is not to be expected that many cases should have arisen in which a question like the one now under consideration would be involved. The state is new, and it is but as yesterday that the whole country was covered with the forest. In such situations, dower-claims as between the’widow •and the alienee would not be frequently pressed. But, as the state becomes more populous, and lands more valuable, this description of claims will be sought out and prosecuted. Although *1 have been somewhat acquainted with the history of ju•dicial proceedings in the state since 1806, I do not now recbllect a single suit for dower against an alienee out of the county of Hamilton, except, perhaps, one in the county of Ross, before the present case. There probably have been cases in the court, of common pleas, which have not been removed into the Supreme-Court. But in the county of Hamilton such cases have not been unfrequent.

Some of these cases will be referred to in the order in which they occurred. At the July term of the Supreme Court in Hamilton county, 1822, before Judges McLean and Burnet, Martha. Ewing prosecuted four several writs of dower against John B. Ennes, John E. Keyes, G-eorge St. Clair, and Thomas Stanbery. The plaintiff claimed dower as the widow of Charles Conn. It appeared, from the pleadings in the case, that in the year 1801,. the land in which dower was démanded had been aliened by Conn. The suit was commenced in 1818. The property was of' that description which could not be divided, and the jury found the yearly value at the time of alienation, and also at the time of the commencement of the suit. It was decided by the court, that the widow should take her dower according to the value of the-property at the time of alienation. These cases, I have been informed, were very fully argued, and carefully considered by the-court, and this information was received from one of the judges who tried them, as well as from others who heard the arguments. It was in reference to one of these cases that Judge Burnet, in the-case of McArthur v. Porter, 1 Ohio, 111, remarks : “ In Ohio, it is admitted that the widow is dowable of lands mortgaged or aliened by the husband during coverture, if she do not join in the mortgage or deed of conveyance. And it has been decided in the case of Ewing v. Stanbery, that she shall be endowed with reference to the value of the premises at the time of alienation.”

At the June term of the same court in the same county, 1824,. which was holden by Judges Burnet and Sherman, and myself, Elizabeth McCullough prosecuted three several writs of dower, against Henry Hathaway, John S. Wallace, and Abraham Perris. It appeared that John McCullough, the husband of the demand-ant, died seized of the premises in 1803, and the court, in assigning dower, estimated the value of the property at that period. Whether' the alienation in consequence of which the defendants claimed title was made by the 'heir, or whether it *was-made for the payment of debts subsequent to the death of McCullough, does not appear in the case.

If I am correct in the construction of the ordinance of 1787, in the cases of Ewing v. Stanbery and others, the plaintiff was not entitled to dower at all. The land was aliened in 1801, at which time the only law in force in the territory allowing the widow dower was the ordinance, and under that she was entitled to dower in such lands only of which the husband was seized at the time of his death. Whether this point was agitated or not does not appear, but it does appear that the court fixed upon the time of alienation as the time at which the annual value of the land should be computed.

At the May term of the Supreme Court of Hamilton county, 1828, the case of Catharine Brown v. John T. Barr came on for hearing, and an interlocutory decree was entered. At the next term the case again came before the court, and a final decree was made. The term of 1828 was holden by Judges Burnet, Sherman, and myself, and that of 1829 by Judges Pease and Sherman.

This was a ease in chancery. The complainant claimed dower as the widow of Daniel Brown, in a certain town lot in the town of Cincinnati. It appeared that the lot had been mortgaged by Brown to one Hunt, in 1817, and finally sold to the Miami Exporting Company on April 28, 1821. The petition was filed in 1826, and defendant claimed title under the Miami Exporting Company. It was decreed by the court that the complainant was entitled to dower, and that- she should be endowed according to the value of the lot on April 20, 1881, when aliened to the Miami Exporting Company,

Thus stood the law in Ohio until 1833, when the case of Dunseth v. The Bank of the United States was decided. 6 Ohio, 75.

But it is urged by the counsel that these decisions are not to be regarded. This is his language : “ I admit that much respect is due to circuit decisions, when they have been long acted upon, and a uniform practice and understanding have grown up under them. This is not the case with these decisions. The practice has been the other way ; and no argument against their notoriety can be stronger than the fact, that the Dunseth case arose in the county of Hamilton,. and no notice is taken of these cases, except in reference to what is said to have been held in one of *them. The court and the bar seem alike to have forgotten them.”

I am aware that decisions upon the circuit are not as well and as generally known as decisions made by the court in bank and reported. But I suppose a decision made upon the circuit, if made by a full court and after mature deliberation, is just as binding upon the court itself, and just as good evidence of the law as if made by the court in bank. Neither a decision made upon the circuit nor in bank is such conclusive evidence of the law that it can not be reversed or overruled; and I trust that this court will never hesitate, when convinced that it has been in error, to retrace its steps. It is said that “the practice has been the other way ” from that which was established in the cases cited. But where is the evidence of this? No case is cited in’which a contrary practice has prevailed.

It is nothing remarkable that no notice should.have been taken of-these cases by the court in deciding the Dunseth case, when it is recollected that that case was not argued, and when it is further recollected that in 1833 there was not one of the judges who assisted in deciding those cases who was a member of the court. When the Dunseth case was reserved I was a member of the court( but not when it was decided. It was continued one term for argument, but through neglect of counsel was never argued. Why it was not I can not say, unless the counsel employed supposed that the law was settled by the decisions in the county where the case originated.

Having thus shown, as it seems to me, conclusively, that by the common law, by the decisions of the courts in the other states of this Union, and by the decisions of the highest judicial tribunal in this state, previous to the Dmnseth case, the rule established was, that if the husband sold the land the widow should be endowed according to the value at tho time of the alienation, I will now proceed to consider the principle sought to be established by the claimant in this case. That principle is this: In assigning to the widow her dower, the increased value of the land, in consequence of improvements made upon the land itself by the alienee, shall be excluded from the computation, but increased value from other causes shall be included. In other words, a widow shall not be endowed according to the value at the time of the alienation, but according to the value at the time of assignment, deducting from this valuation, however, the value of the improvements made by the alienee.

*It is not pretended that there is any decided case in England or in any state court in the Union, except in the Supreme /Court of Pennsylvania, which goes directly to sustain this rule. It is admitted that the cases already cited from New York and Virginia are directly against it. But it is said that the courts of New York are governed by a statute, and that the decision in Virginia was only by a majority of the court. So far as respects dbe statute of New York, we have already seen that it is a mere .affirmance of the common law rule. The *force of the decisions in England and the other states is evaded by the assertion, that in those cases the question of “increased value from extrinsic causes” was never considered by the courts. Chief Justice Thompson, in the case of Dorchester v. Coventry, 11 Johns. 510, insists that there is no difference between improvements made by the alienee and increased value from other causes. He says, “the .same principle applies to both.” And if there be any difference, if this question of increased value from extrinsic causes is so very important, is it not a little surprising that nothing should have been said about it in England during the more than six hundred years since the rule in that country was established, nor within •these United States until within some twenty or twenty-five years past? In truth, the question does not appear to have been made in any decided case, so far as we are informed, until made in 1819, in the case of Thompson v. Morrow, 5 Serg. & Rawle, 289. Previous to that time the uniform and universal rule, so far as we know, was that the widow should be endowed according to the value at the time of alienation. And this from necessity excluded ■all increased value, no matter from what cause.

It is argued, however, that abstract, justice requires the adoption •of this modification of the old rule for the assignment of dower. This is unquestionably an.important consideration. Whenever a rule of law is found to operate unjustly it ought to be changed, either by legislative enactment or judicial decision, and the former mode'is far preferable.

But whether such change of this rule would be conducive to the ends of justice is, perhaps, somewhat problematical. In some cases it might have this effect; in others, however, it would be quite the reverse. Take a case where an individual, against the wishes of his wife, h'ad disposed of his property at the instigation of the alienee, and where it was done with a view to deprive her of her rights, it would seem to be just that upon the -^death of her husband, she should be endowed according to tbe increased value of the land. But in ordinary cases, where husband and wife are one in feeling, and one in interest, as they are one in law, and where lands are in good faith sold for the benefit of the family, there is no justice, there can ho none, in giving the wife, if she survives her husband, the benefit of the increased value of the land. Take the case, which is very common, where the husband, with the avails of one tract of land, purchases another^ and after improving it, dies — where is the justice in allowing his widow the benefit of the increased value of both these tracts of land ? ' Take another case, where the husband sells land and vests the avails in personal goods, chattels, and merchandise, and with these makes gain and dies. The widow is entitled to one-third of this personal property, to the use of one-third of the land with which it was procured, and will it be said it is just, that in addition she should be entitled to the benefit of the increased value of the land ?

But there can hardly be a stronger case than the one under consideration to test the justice of the rule contended for. At the time this land was aliened, it was in a wilderness, and was of but little value. But through the energy and enterprise of the alienee, and those to whom he sold, this wilderness has become a cultivated country. In consequence of improvements made, and of extrinsic causes, the land has become immensely valuable. A town has been laid out, and in that town the seat of government for the state has been located. As a consequence of the location of the seat of government, the National road has been established in the neighborhood, and a navigable feeder to the Ohio canal constructed. All these things have a tendency to increase the value of the land. But to what extent each one severally has this tendency, it is beyond tbe power of man to tell. Now the question is, who in justice ought to receive the benefit of this increased value. The proprietors of the land, through whose agency, so far as individual agency is concerned, this state of things has been produced, or who-have paid a high price as the value of the land has increased, or should it be divided between them and this widow. What has she done to enhance the value of this land ? What have the heirs of her husband done? She has lain by for about thirty years, silent, as the grave, while this property has been passing from hand to hand, each individual paying for it its full value, and she now comes into this court to enforce this claim, which Chancellor Kent. says, “ is a severe dormant incumbrance *upon the use and circulation of real property.” Can any one suppose that if this property had descended to the heirs of George W. Allen, the seat, of government of this state would have been established whore it now is ? Or that the National road or Columbus feeder would have been located where they now are? Or would these things have taken place had this claimant prosecuted for her dower within a reasonable time alter the death of her husband, and had the dower assigned her covered the lands in which she now seeks to recover ?' If not, why should she be placed in a better situation in consequence of the alienation by her. husband, than she would have been, had he died in possession? Justice may require it, but it-seems to me it must be justice of an extraordinary character. There is much good sense in a remark of Chief. Justice Savage, in the case of Walker v. Schuyler, 10 Wend. 486, and it is peculiarly applicable to this case.1 “It is certainly reasonable that the enhanced value should inure to the benefit of those through whose labor and sufferings and expenditures the appreciation has been procured. If the property has been rendered more valuable by the general improvements of the country, the defendant and not the-plaintiff has contributed to that general improvement."

While upon' this part of the case, it may not be useless to attend, for a moment to the character of the eases which are most frequently brought before the court for the purpose of obtaining dower, and here I have no reference to cases between the widow and heir, but to those between the widow and an alienee.

One class of those cases are such as have originated in the peculiar circumstances of the state. As has been already remarked, at an early period large tracts of land were held by individuals. This was the case with the Connecticut reserve, consisting of more than 3,000,000 of acres. There was also the Virginia military district, set apart for the officers and soldiers of the Virginia line on continental establishment. In addition to this, there was a large tract of country designed for the officers and soldiers of the revolutionary war generally, and for certain refugees from Canada. A very considerable portion of the lands in the Virginia military district, and in the United States military district, as well as all. the lands in the Connecticut reserve, were purchased in by individuals, who thereby became large landholders. And they were-purchased with precisely the same object with which a merchant. lays in his stock of merchandise, that is, to sell again and make gain. These large proportions were not, *and many of them never have been residents of the state. They have contributed neither labor nor money for its improvement; nor to enhance the •value of property. They have sold their lands to the actual settler, and ho has made the improvements. He has contributed to •enhance the value of property generally. They have effected their objects, they have sold their lands for gain, and in this way, some ■of them at least, have accumulated great wealth. But in executing deeds of conveyance, it was done in many instances without :any relinquishment of the right of dower.

In such case, in order that justice maybe done, to a widow, is it necessary that a court, in assigning her dower, should take into ■consideration the increased value of the land, arising from all -other causes, except the particular improvements made upon it by the alienee?

It may be supposed that there are but few instances in which cases of this kind can arise; but it will be found, upon examination, that there are hundreds of thousands, if not millions of acres -of land in the state, in this situation, and subject to this “severe dormant incumbrance.” In many instances, it is fair to presume that neither party knew that the wife should join in a deed in -order that she might be barred of her dower. In others, it might have been supposed that as the widow, if endowed at all, must be ■endowed according to the rule of the common law, of course the dower would be of little consequence. This applies to deeds executed out of the state, for it will be found that in most of those ■executed within the state, and by our own citizens, there is a relinquishment of dower.

There is another class of cases, and these are probably the most numerous, that have or will come before the court; and this consists of cases where the wife has joined with the husband in the •deed and intended to release her right of dower, but has failed on .account of some technical informality. In such case, justice would require not only that the widow should not be endowed according to the increased value of the land, but that she should not be endowed at all.

From any view which I have been able to take of the subject, it seems to me counsel are mistaken in supposing that tha ends of justice would be subserved by a modification of the common law rule.

It is not upon the position that justice requires a modification, of this rule that counsel alone rely. They insist that it is already" modified by judicial decisions, and that the settled rule *of law upon the subject is that which they advocate. The authorities, which they rely upon are a “dictum" of Chief Justice Parsons, in. the case of Gore v. Brasier, 3 Mass. 544; Thompson v. Morrow, 5 Serg. & Rawle. 289; Pond et ux. v. Morrison and B. M. Co., 3 Mason, 347; 4 Kent’s Com. 67; Dunseth v. Bank of United States, 6 Ohio, 76.

I have carefully examined all these authorities, and there can, be no question but that the three decided cases fully sustain the-counsel for the claimant.

As to the case of Dunseth v. Bank of the United States, I have-already said that it seemed to me proper that in the investigation-of this ease, if should be taken into consideration, because that case is now depending upon a bill of review; and on this account, it can not be considered as authority for the purposes of this case, with any more propriety than could the original case, which, by the present bill, is sought to be reviewed.

The case of Thompson v. Morrow, 5 Serg. & Rawle, 289, was-decided in 1819. There can be no doubt of the ability and integrity of the court by which the case was decided. But from an examination of the opinion of Chief Justice Tilghman, it would, seem tó me that he was laboring rather to sustain a preconceived-opinion than to ascertain, from an examination of authorities, what the rule had been held to be. Indeed,, he says, that himself and his associates, Yates and Brackenridge, had entertained the-opinion, that a widow was to be endowed according to the increased value of the land, excluding from the computation the improvements made by alienee. He says that he has looked into the year? books and does not find anything to contradict this opinion. He admits the rule of the common law, but supposes the question of increased value from extrinsic causes had been overlooked, or not considered, and therefore concludes that this might be taken into the computation without impairing that rule. He cites no-authority as directly in point to sustain his opinion, except the dictum of Ch. J. Parsons. He seems to consider this as having all the force of an adjudged case, and says, that he is not aware that. it. has over been overruled in Massachusetts. He admits that the .authorities in New York are apparently against him, but supposes this may have been because there is a statute in New York, and by possibility this statute may have had some influence. In conclusion, he says, “Having considered all the authorities which bear upon this question, I find myself at liberty to decide %0-•cording to what appears to me to be the reason and justice of the case; which is, that the widow shall take no advantage of improvements of any kind, made by the purchaser, but throwing these out of the estimate, she shall be endowed according to the value at the time her dower shall be assigned to her.” This very mode of expression shows that the judge understood that he was making some innovation upon the rule, as previously understood-It seemed to him to be reasonable and proper, and finding no case wherein it had boon expressly held that the widow should not have the benefit of the increased value of the land from extrinsic causes, he was inclined to give it to her. And this, I believe, is the first case in England or America in which it has been so adjudged. The authority, and only authority quoted, as before remarked, is the dictum of Ch. J. Parsons, in G\ore v. Brasier.

Judge Story, in the case of Powell and wife v. The Morrison and B. M Co., 3 Mason, 347, takes much the same view of the subject as Judge Tilghman, and comes to the same conclusion He does not, however, place the same reliance upon the dictum of* Ch. J. Parsons, as an authority, but admits, that there is great uncertainty as to what was the opinion of that eminent jurist upon this particular point. The only decided case cited by Justice Story, as being in point to sustain his decision, is the case of Thompson v. Morrow. He bases himself, not upon decided cases» but, like Judge Tilghman, upon the assumption, “ that in none of •the cases has the question in relation to the advance of land, independent of the improvements by the alienee, ever come up.” An extraordinary assumption, it would seem to me, when we take into consideration, the fact that dower was a favorite of the law, the length of time since the common law rule was established, and the character of the courts before which it has passed in review.

These are the only two decided cases favoring this view of the subject, taken by the counsel for the claimant in the case before this court, previous to the case of Dunseth v. Bank of the United States. I say they are the only decided cases, because I know the counsel too well to believe that a single case favoring their views would be overlooked. True, the counsel cite a case from. 1 Bland’s Ch., in Maryland, but that was a case between the widow and heirs and of course has no application to the case before this court. It is said, too, in Kentucky there *was a case decided in 1833, which goes measurably to sustain the new rule, but that case does not seem to be much relied on.

So far as direct authority is concerned, the case of Powell et ux. v. M, and B. Manufacturing Company is based upon the case of Thompson v. Morrow, and this latter case is based upon the sup. posed opinion of Ch. J. Parsons. This “ dictum, ” of Ch. J. Parsons, which is thus used, and is made the foundation for the charge of an ancient and well-known rule of the common law, and of many of the states of the Union, is found in the case of Gore v. Brasier, 3 Mass. 529. The case is a long one, and this dictum, is found at page 544,

This was not an action of dower, nor had it connection with such an action, except by analogy. It was an action of covenant broken, upon a deed containing the general covenants. The first count in the declaration alleged a breach of all the covenants — the second, the breach of the covenants of warranty, and against incumbrances. The value of the land at the time of conveyance to Gore, was §9,000; at the time of his eviction, §15,000. Many questions were involved in the case, but the particular question under consideration when the dictum was uttered, was with respect to the rule of damages for a breach of the covenant of warranty. . Alter a full consideration of the whole subject, the chief justice says, at page 546 : “The court are of opinion, conformably to the principles of law, applied to personal actions of covenant broken, to the ancient usage of the state, and to the decisions of our predecessors, supported by the practice of the legislature, that the plaintiff in this action ought to recover in damages the value of the estate at the time of eviction.” Consequently the defendant was compelled to pay §15,000 damages, when in fact he received but §9,000 for the land. This decision was based, however, not upon the common law rules applicable to this class of action, but “ upon the ancient usage of the state,” and previous decisions of the same court, “ supported by the practice of the legislature.”

In commenting upon the case, he says, “By the ancient cornmon law, the remedy on a warranty was by a voucher or warrant tia charter, and the recompense recovered in those suits was other lands to the value at the time the warranty was made. This was-the general rule; but when the warrantor, on being vouched, entered into the warranty generally, he was bound to render other lands to the value of the lands lost at the time he *entered into-the warranty. In valuing the land lost, when the voucher entered into the warranty specially, no regard was had to any improvements made by the tenant, as by erecting edifices, or turning pasture into arable land, nor was the discovery of a mine in the land lost, after the warranty,.but then not known, considered in ascertaining the value of the land to be recovered in recompense..

“ An effect originating in this feudal principle may be discovered in this state, in the assignment of dower against a purchaser. When the husband- aliens with warranty during the coverture, and afterward dies, his widow shall not be entitled to the-benefits of the improvements made by the purchaser, because he could not recover their value in other lands against the heir on the warranty of the husband. This rule is now supported in this state on principles of public policy, that purchasers may not be discouraged from improving their lands.”

Here the common law rule for the assignment of dower is given, and the reason for that rule, and that is because the purchaser, or alienee, could not recover the increased value against the heir, but must be confined to the value at the time of alienation. But although the reason for the rule had ceased in Massachusetts, inasmuch as it was there holden that in ease of eviction-the warrantee could recover against the warrantor the value of the land at the time of eviction, still, it is said this rule is now supported in this state on principles of public policy.

And here let me ask, if public policy in Massachusetts requires-that the common law rule for the assignment of dower should be-sustained, “that purchasers may not be discouraged from improving their lands,” although the reason for the rule in that state has^ ceased, does not public policy in Ohio equally require that it should be sustained here? Is there not the same necessity here that purchasers should be encouraged to improve their lands?' Was there not a ten-fold greater necessity for it at the time the right of dower in the case before the court was consummated? But in Ohio the reason for the rule remains in full force.-

In an action of covenant for breach of the covenant of warranty, this court has uniformly held that the recovery must be limited to the value of the land at the time the warranty was made, or, in other words, to the consideration money and interest. No matter what may be the increased value, no matter what may be the causes of that increased value, this is the extent of the recovery. Such is the settled law of Ohio.

*In the case of King v. Kerr’s Adm’rs, where the subject is treated of, it is-said by the court, “in this state, where real propertjr is rising fast in value, the value on eviction would be ruinous to the warrantor.” 5 Ohio, 154. I would ask if such a rule would be ruinous to the warrantor, will not that rule be equally ruinous to the warrantee which permits a widow to take from him one-third of the increased value of the land in way of dower, and prohibits him from recovering the same ever against the heir of the warrantor? The action is not always against the immediate alienee of the warrantor, but frequently against a subsequent purchaser, and one who has paid a full price for the land, according to its increased value. In Massachusetts, the widow can recover dower only according to the value of the land at the time of alienation, although if she recovered according to the increased value, the alienee might recover over against the heir to the same extent; but in Ohio, it is contended that she may recover according to the increased value, although the alienee can recover over against the heir only according to the value at the time the warranty was made, or at the time of alienation.

But to return to the case of Gore v. Brasier. After having stated that the common law rule was supported in Massachusetts on principles of public policy, the judge proceeds: “If the lands have greatly risen in value, not from any improvements made upon them, nor from the discovery of any new source of profit, but from extrinsic causes, as the increase of commerce or population, it may he a question whether upon the extendi ad valentiam, the lands to be recovered in recompense would be valued at the increased price, so that- the quantity might be proportionably reduced. This is but a question of mere curiosity, unless it should be considered as relating to the lands to be assigned to the widow for her dower. If the husband during the coverture had aliened a real estate in a commercial town, and at his death the rents have trebled from various causes, unconnected with any improvements -of the estate, and the widow should then sue for her dower, perhaps it would be difficult for the purchaser to maintain that one-•ninth part only, and not one-third part should be assigned to her.” This is the 11dictum” of Chief Justice Parsons, about ■which so much is said, upon which so much reliance is had, and -upon which the new rule established in the case of Thompson v. Morrow is based.

The case supposed is simply this : the husband aliens land, and the purchaser makes no improvement. The land remains in *sta.tu quo until the death of the husband, at which time, owing to increase of commerce or population, the land has trebled in value; in such case a doubt is suggested whether the widow ■might not have assigned to her one-third of the land. The particular case put is of the sale of a lot in a commercial town. What is the similarity of such a case to the case of Thompson v. Morrow? In this latter case, the lot did not remain in the same situation as when sold, but the purchaser had made improvements. But there is still less analogy between this hypothetical case and the case before the court. In the case before the court, the sale was not of a lot in a commercial town, but of a large tract of wild or unimproved land in a wilderness, and, if there were any analogy to carry it out, the land should have continued, in a wild and uncultivated slate, not only at the time of the death of the husband, but up to the present time, when the dower is claimed.

Can it'be believed that Judge Parsons had in his mind a case like the one before the court? Justice Story doubts whether he had in view a case like that of Powell et ux. v. M. and B. Manufacturing Company, much less can it be believed he had in view a case like this. But even in the hypothetical case put, the •chief justice expresses no opinion. He speaks doubtingly, “perhaps it would be difficult,” etc. Judge Tilghman, however, considers this as evidence of the iaw in Massachusetts, and says, he is not aware that it has been overruled in that state. Yet in the case of Catlin v. Ware, 9 Mass. 218, which was a case in dower, and decided five years after the case of Gore v. Brasier, the Supreme Court of Massachusetts, Parsons being on the bench, held that the widow should be endowed according to the value at the time of alienation, and nothing is said about increased value.

The opinion of Chancellor Kent is referred to by the counsel for the claimant as going to sustain the principle whieh'they advocate. But, before examining the opinion of the chancellor, it may not be out of the way, as the only decided cases, quoted to sustain this new rule, are from Pennsylvania and Massachusetts, to remark, that was this ease depending in the courts of either of those states, the widow not only would not recover her dower according to the increased value of the land, but she would not recover dower at all. She could not- recover in Massachusetts, because these lands were wild when sold by her husband. 15 Mass. 164; 1 Pick. 21; 7 Pick. 143. She could not recover *in Pennsylvania, because the lands were sold by a judicial sale. 2 Dallas, 127.

I have already referred to the opinions of Chancellor Kent, while he was judge of the Supreme Court of New York, and while -he was chancellor of the same state, and have quoted his exact-language, knowing it to be stronger and more appropriate than •any I could urge in favor of the opinion which I entertain upon this subject. In the case of Hale v. James, 6 Johns. Ch. 258, which was decided long after the eases of Gore v. Brasier, and Thompson v. Morrow, after stating the rule of the common law, he says, that to take the value of the land at the time of the death of the husband, excluding improvements made by the alienee, would, in this country, be more favorable to the widow, because lands are generally increasing in value, and intimates that this rule might be adopted, “if we had it in our power to dislocate the rule of computation, and transfer it from the time of alienation to the death of the husband.” This language strongly implies that it could not be done except by a breach or violation of law.

In his Commentaries (vol. iv, 66), after stating the rule of the •common law in the assignment of dower, he says, “ This is the doccrine of the American cases, and they are in conformity with the general principles of the English law, as to the time from which the value of the dower is to be computed,-both as it respects the alienee of the husband and the heir.”

On page 68 of the same volume, is found the expression which is relied upon as sustaining the new rule. After referring to the cases of Gore v. Brasier, Thompson v. Morrow, Powell and wife v. M. and B. Manufacturing Company, the chancellor says: “ The better and more reasonable general American doctrine upon this subject, I apprehend to be that the improved value of the land, from which the widow is to be excluded, in the assignment of her dower even as against a purchaser, is that which has arisen from the actual labor and money of the owner, and not from that-•which has arisen from extrinsic or general causes.

I do not know that I rightly understand what the chancellor means by the “better and more reasonable" doctrine. If by it he mean that the doctrine by him here stated is “ better and, more reasonable," because more consistent with abstract justice, this is a matter about w hich there will be a great difference of opinion, and individuals would be influenced in a great measure by ^preconceived notions upon the subject of dower. For one, I am free to confess, that in the present state of society, and in ordinary cases, I can see but little abstract justice in allowing a widow, whose husband has sold land and applied the avails of it 'to her benefit and to the benefit of the family, to come in and claim from the purchaser, who has paid the full value of the land, the use of one-third of it during her natural life. But there is justice, where her husband dies seized of land, that she should have the use of one-third of it for her support and maintenance. In the latter case, she^receives her support from the avails of the labor and industry of herself and husband; in the former, from the avails of the industry of a stranger.

If the chancellor, by “ better and more reasonable,” means that this new doctrine is better sustained by authority, I think he is mistaken. In favor of it are two and only two cases — one decided in Pennsylvania, and the other in the Circuit Court of the United States for the district of Massachusetts. Against it are his own decisions while judge of the Supreme Court in the State of New York, and while chancellor of that state; numerous decisions in the same Supreme, Court since he ceased to be a member of it; decisions in the Supreme Court of Massachusetts, and in the highest judicial tribunals in New Hampshire, New Jersey, South Carolina, Virginia, Kentucky, and Indiana, to say nothing of the cases-decided in this court as before referred to. Should it bo said, that in most of these cases the precise question, as to taking into computation in assigning dower, the increased value of the land arising irorn extrinsic causes was not taken into consideration, I can only reply that, in three cases in New York and one in Virginia, it was the point principally agitated.

From the careful examination which I have given this subject,. and I have endeavored to give it the most careful attention, it does seem to me, that upon principle as well as upon authority, the rule of law is well settled, that when a widow claims dower in. lands •which have been aliened by her husband she shall be endowed according to the value of the land at the time of the alienation. .My brethren differ from me, and therefore 1 ought to distrust my own opinion ; but, after the most anxious reflection, I can not see it to be otherwise. It seems to me, further, that this rule is in conformity with justice and reason, and peculiarly applicable and appropriate to a new state like Ohio. And I am fearful that the change or modification of it will be followed, in many instances, by ruinous consequences. As the decree, in the case sought to be ^reviewed, directed the dower to be assigned according to the present increased value of the lot in question, excluding improvements made by the purchaser, I think it was erroneous and should be reversed.  