
    Ellicott v. Mosier.
    
      Widow’s ejectment for Dower.
    Ejectment for dower must be brought against the actual occupant of the premises, though not the tenant of the freehold.
    The widow’s receipt, for several years, of one-third of the rents reserved on her husband’s demise, will not bar-her action of dower. A prior demand of dower is not required.
    Ellicott v. Mosier, 11 Barb. 574, affirmed.
    Appeal from the general term of the Supreme Court, in the eighth district, where a judgment for the plaintiff, upon demurrer to the answer, had been affirmed. (Reported below, 11 Barb. 574.)
    This was an ejectment by the widow of Joseph Ellicott, deceased, to recover her dower in certain lands in the city of Buffalo, bounded by Washington, Swan, Main, and South Division streets, of which her husband died seised.
    The defendant, by his answer, set forth, that the plaintiff’s husband was seised in fee-simple of the premises; and that in February 1829, he demised the same to Ira * 202 1 ^ossom *an<^ Lewis F. Allen, for the term of -* twenty-one years, reserving an annual rent; and that, by another agreement, the time was extended, upon the payment of certain rents, twenty-one years from the end of the first term. That Blossom and Allen entered, and subsequently made partition of the premises, and the Ohio Life Insurance and Trust Company acquired Allen’s rights therein. That the defendant was in possession of only a portion of the premises, being the first floor of a store Ho. 239, eighty feet in depth and eighteen feet in width, tinder and by virtue of a lease from the Ohio Life Insurance and Trust Company, and occupied only as tenant for one year. That the plaintiff had never demanded her dower, and that it had never been assigned to her.
    And for a further answer, the defendant alleged, that the plaintiff’s husband died in 1837, intestate; that the defendant occupied the store, under the lease; and that the plaintiff and the heirs had collected and received the rents reserved, ever since the death of the husband, as the same became due, and had divided and enjoyed the rents in proportion to the interest of each in the premises. And he insisted that the plaintiff was estopped from maintaining this action.
    The plaintiff demurred to the answers, and to each of the several allegations thereof; and on a hearing of the demurrer, at special term, before Hoyt, J., judgment was given for the plaintiff; which having been affirmed at general term, the defendant took this appeal.
    
      Qanson, for the appellant.
    
      Martindale, for the respondent.
   *Rtjggles, O. J.

The plaintiff’s dower had J not been assigned or admeasured; and the de* fendant was in possession of a part only of the premises in which the plaintiff was entitled to dower; the defendant holding under a lease for years. The question is, whether the action can be maintained.

Before the adoption of the revised statutes, the plaintiff’s remedy at law would have been by an action of dower. The object of that action is, to obtain or compel an assignment of dower by the heir, or other owner of the land subject to the widow’s right. It could, therefore, be brought only against the owner or tenant of the freehold; no other person could assign the dower. (Hurd v. Grant, 3 Wend. 340; Park on Dower 265; Co. Litt. 35 a; Beddingford’s Case, 9 Co. 17.) The action of dower was abolished in 1830, and the action of ejectment substituted in its place. (2 R. S. 303, §§ 2, 4, and 304, 310, 313.) By § 4, the action must be brought against the actual occupant of the land, if there be one, and in terms this section applies as well to actions of ejectment for dower as to other actions of ejectment. The consequence is, that in a case where the premises in which dower is claimed are in the actual occupation of a tenant for years, the action of ejectment for dower, if it can be sustained at all, must be brought against the actual occupant, and not against the tenant of the freehold.

In Shaver v. McCraw, 12 Wend. 558, Sutherland, J., doubted whether the principle of the action of dower does not control the action in its present form; and whether the action of ejectment, in such a case, will lie against any other person than the *tenant of the freehold.” Afterwards, however, it was held in Sherwood v. Vandenburgh, 2 Hill 306, that the action might be maintained against the - actual occupant, although he was not the owner, or the tenant of the freehold.

It may be doubted, whether it entered into the minds of the revisers, or of the legislature, in framing the 4th and 13th sections of the statute, that they were authorizing a recovery in dower against a temporary occupant, who had no authority to assent to the plaintiff’s claim, or to set apart her dower; but such is the effect of the language used, and the statute must be obeyed. It clearly contemplates the bringing , of the ejectment for dower, as well before any admeasurement; as after, and the authority to bring the action is not limited to cases in which the premises are occupied by the owner of the fee-simple or freehold.

■ The object of the action is, to try the right of the widow to have her dower, and if that be found in her favor, to have an admeasurement; for both these purposes, it would seem to be more proper, that the action should -.be brought against the party chiefly interested in resisting the claim to dower, that is to say, against the .owner of the land. But it is not perceived, that he can suffer injustice, from the proceeding against the actual occupant; the judgment in ejectment will not bind him, because-he is not made a party to it:. and for the same reason, an admeasurement made under the 55th section of the. statute (2 R. S. 311) cannot bind him. That section seems to contemplate a proceeding only between the parties to the action of ejectment. Sub. 1- of that, section requires no new parties; and sub. 2 gives an appeal from the report of the commissioners, only to the parties to the action. On well-established principles, the tenant of the freehold could not be bound by such a proceeding. In the old action of dower, if brought against the tenant for years, the tenant of the freehold plight, before judgment, pray to’be received, and was entitled to be made a..defendant; and so was the reversioner where the action was brought against the tenant for life. (Park 285.) And. in the present case, we think, the owner might, by analogy, have been let in as a defendant. And the tenant of the freehold, in the action of dower, l .without *praying to be received as a defendant, might falsify the judgment against the. tenant for years. (Park 285.) If the widow chooses to proceed in this way, instead of applying, in the first instance, to have her dower admeasured, the occupant of the land cannot complain; it is of no consequence to him, whether the tenant of the freehold be bound or not. The inconvenience and disadvantage of proceeding, as in this case, against the temporary occupant, falls chiefly on the widow .herself, whose judgment binds at most only the tenant for years.

If the court in which the ejectment - for dower is brought has the power, in a case like the present, to make the tenant of the freehold a party to the proceeding for admeasurement, under the . 55th section of the statute (2 R. S. 311), the power would not be exercised, unless upon the condition that he be first let in as a defendant in the ejectment, to contest .the widow’s right to dower. ■ In no event, therefore, can the tenant of the freehold be prejudiced, by a recovery in ejectment against the temporary occupant.

The point on which this case turns appears to have been deliberately decided in the case of Sherwood v. Vandenbwrgh, before cited, and we think (although with some doubt and hesitation), that it was correctly decided in pursuance of the peremptory provisions of the statute of ejectment. This hesitation arises in some .degree from the 23d section of the statute (2 R. S. 306), which provides, that upon the general issue in ejectment, the defendant may give in evidence any . matter which, if pleaded in a writ of .right or an action of dower, would have barred the action of the plaintiff. In the.old action of dower, the defendant might have set up as a defence, that he was not tenant of the freehold; but that defence came in under the plea of non tenure. (1 Cow. 180; 3 Wend. 340.) But non tenure was a plea in abatement, and not a plea in bar (6 Com. Dig. 210, tit. Pleader, 2, Y., 4); it concludes with a prayer that the writ may be quashed. The 23d section applies only. to what may be pleaded in bar, and does not, therefore, give to the defendant the benefit of this defence in the action of ejectment. This must have been the reason why that * 208 1 sec^on t*16 statute *was not referred to, either in Shaver v. McCraw or in Sherwood v. Vandenburgh.

When the owner of the fee or the freehold is in possession, the widow may bring her ejectment for the trial of the right, in the first instance, before admeasurement. But when the occupant has only a temporary right of possession, it would be more advisable for the widow to have her dower admeasured under the statute (2 R. S. 488), before she brings ejectment. The tenant of the freehold is a proper and necessary party to the admeasurement in that case; and he may afterwards be made a party to the ejectment. (2 R. S. 341-2; 3 Rev. Stat., 2d ed., 717, Revisers’ note.) This view of the statutes gives to the widow a remedy in all cases where she has a right; and to the owner of the land an opportunity of making his defence, if the claim to dower is not well founded.

Watson, J.

This is an action of ejectment brought by a widow to recover dower in lands in the occupation' of a tenant, who is not a tenant of the freehold. The counsel for the appellant concedes that the action must be brought against the tenant in actual occupation of the premises, whether he has a freehold estate in them or not, but contends that where it is brought against one who is not a tenant of the freehold, the statute should be so construed as to oblige the widow to have her dower admeasured, before bringing the action. He insists, that the legislature, in abolishing the writ of dower, and allowing ejectment to be brought to recover dower, intended the one as a substitute for the other; and the principal argument in support of this position is, the inconvenience and hardship that would follow, both to the tenant and widow, if a different construction should be given to the statute. With the inconvenience or hardship attendant upon the working of the statute we have nothing to do; that should be addressed to the legislature, which is competent, and whose duty it is, to alter or amend all laws that operate oppressively. But a brief reference to the statute giving the remedy by ejectment for the recovery of dower, will, I think, satisfy any one, that the legislature did not intend *the one as a substitute for the other; nor have they enacted *- a statute which is capable of the construction contended for by the counsel for the appellant, unless the courts assume legislative powers. By the revised statutes, the writ of dower is abolished, without any qualification or reservation. (2 R. S. 343, § 24.) It provides, that the action of ejectment may be brought by any widow entitled to dower, after the expiration of six months from the time her right accrued, to recover her dower, of any lands, tenements or hereditaments. (2 R. S. 303, § 1, 2.) Here, the full and unequivocal right is given her to bring the action, without obliging her, in the first place, to demand, or to have her dower assigned or admeasured to her. But the sections which succeed this, show conclusively, that the framers of the law were not ignorant of the fact, that they were giving to the widow this right to recover in ejectment, without first having had her dower assigned or admeasured.

By § 10, it is enacted, that if the action be brought for the recovery of dower, the declaration shall state that the plaintiff was possessed of the undivided third part of the premises, as her reasonable dower, as widow of her husband, naming him.” Were she compelled to have her dower admeasured, before bringing the action, there would be no necessity for this, but on the contrary, an absurdity in it; she would then be entitled to recover the whole, and not an undivided third part of the lands which had been admeasured to her. The 55th section provides, that if her dower has not been admeasured to her, before the commencement of the action," she is to proceed to have her dower assigned. The record of judgment is to be filed and commissioners appointed to make admeasurement of the plaintiff’s dower out of the lands described in the record.

It seems to me, that no one- can read this last section, without becoming fully satisfied that the legislature were fully aware, and by the language of the act recognise the fact, that they intended to give the widow her remedy by ejectment, before her dower was admeasured. Whether they ought not to have foreseen, and guarded by suitable provisions, the hardships or inconvenience which might attend its operation,- is a matter which * 210 1 *re^ec*s uPon their sagacity, but throws no light -* on their intention; that is to be gathered from the words of the statute, and their'plain meaning, where there is no ambiguity about them. In this case, I enter-' tain no doubt, that the action is correctly brought, that the answer is not sufficient to bar the plaintiff’s action, and that the judgment of the supreme court should be affirmed.

Judgment affirmed.  