
    Catharine W. Bisland, widow of James Bisland, vs. Josephus Hewett et al.
    The probate court having jurisdiction of the subject of dower, is not ousted of that jurisdiction by the fact that the property, out of which the dower is sought, is in the adverse possession of another.
    Whore the land, out of which dower is sought, is in the adverse possession of another, the probate court will have no jurisdiction of the person in adverse possession; nor will his appearance and answer confer such jurisdiction ; nor will his rights be affected by any decree the probate court may render; these rights must elsewhere be considered as if no decree of the kind had been pronounced.
    The only proper parties to a proceeding for dower by a widow, are the representatives of her deceased husband.
    It seems that if the title of the husband to realty, in which his widow is seek* ing to have her dower allowed, became divested, by the enforcement of his vendor’s equitable lien for the purchase-money, the widow will not be entitled to dower in the premises.
    Appeal from the probate court of Adams county ; Hon. Charles L. Dubuisson, judge.
    Catharine Bisland filed her petition in the probate court, stating that she was the widow of James Bisland, deceased, who died in July, 1843, leaving a certain lot within the city of Natchez, the boundary of which is given, being the same conveyed by A. T. McMurtry and wife to said Bisland, deceased, by deed, bearing date the 26th of August, 1836, of which land her husband was seized in law, during the time of his coverture with petitioner, and upon which he resided in his lifetime, and vlhich he had in fact conveyed to petitioner, but the conveyance was held void as to his creditors; but she was advised she was entitled to her dower therein. She married Bisland in April, 1836; no administrator had been granted upon his estate; he left one child by her, and five by a former wife; she prays a writ of dower to assign to her the one third part of the lot and the dwelling-house thereon, erected by her husband; that Josephus Hewett, Esq., of Natchez, was in the possession of the dwelling and part of the land, and she prays citation against him and all other persons interested, and that they answer her petition, and be compelled to submit to such assignment of her dower as may be made, &c. Citation was ordered against Hewett, who filed his answer, admitting petitioner to be the widow of Bisland, as alleged, the conveyance of McMurtry to him on the 26th day of August, 1836, and Bisland’s possession, who built a dwelling-house thereon, and resided on the same for a short time, but denies it was his last place of residence. . He states that Bisland purchased from McMurtry on a credit, and gave no security for the purchase-money, but he retained the vendor’s lien for the purchase-money; McMurtry brought his action at law on one of the notes given therefor, and on the 18th May, 1838, in the circuit court of Adams county, recovered judgment against Bisland for the sum of $>6725-88, beside costs; on which judgment an execution issued, and was levied on the land on the 1st day of October, 1838, and it was sold and conveyed to McMurtry for the sum of $5100; leaving other notes for large amounts given by Bisland, for the lot unpaid; and which by principles of equity constituted liens on the land, as against Bisland and those claiming under him, as volunteers or by operation of law, and that the petitioner having been married to Bis-land before the purchase, cannot be entitled to dower in the land, except subject to said lien; that the land was sold under execution against said McMurtry, and conveyed by the sheriff of Adams county to Daniel Farrar, and by execution against him was sold and conveyed to Alexander K. Farrar, who sold it to defendant. By which all the equities and legal rights of McMur-thy have vested in him, and that the petitioner is not entitled to dower unless she will pay one third of the sum due on the purchase as a lien on the land, on which terms he will submit to deliver that interest to petitioner, and prays an account therefor. He admits he is in possession, and has made valuable improve-' meuts on the land, which he asks may be taken into consideration, &c.
    The court, after the filing of the petition, ordered a publication in the newspaper, for those interested to show cause why dower should not be allowed, which was duly made and proved.
    It is not necessary further to notice the subsequent pleadings and proof; the matters set up in the answer were substantially established by evidence, and the probate court dismissed the petition for want of jurisdiction; from which judgment an appeal was taken.
    
      Sanders and Haggin, for appellant.
    1. Our law gives to the widow as dower “ one third part of all the lands, tenements, and hereditaments, of which her husband died seized and possessed, or had before conveyed, whereof said widow had not relinquished her right of dower, as provided for by law.” How. & Hutch. 351, § 41.
    In this case the petitioner intermarried with her husband in April, 1836. He acquired the land of which she claims dower, and was seized thereof, in law and in fact after their marriage. The conveyance of it afterwards by the sheriff was, in law and within the meaning of the statute, his conveyance. She has never relinquished her right in any manner. Fleeson v. Nickelson, Walk. Rep. 247; Wooldrige v. Wilkins, 3 How. 367; Caillaret v. Bernard, 7 S. & M. 316; 1 Oo. Lit. 656; 4 lb. 65, a.
    
    From these authorities we cannot resist the conclusion that the equitable lien of a vendor for the purchase-money of lands acquired by a husband during coverture, is no bar to his widow of her claim to dower in them, and the defendant here cannot claim the protection, if the law allowed it, of being an innocent purchaser without notice; for it is admitted in the evidence he purchased with a knowledge of the derivation of title through James Bisland.
    2. As a party, he (Josephus Hewett, Esq.) is a mere nominal one; the object of making him one, was to visit him with notice of the pendency of the suit. No decree against him could go further than affixing notice upon him of its pendency, and to charge him with the value of the annual income of the dower estate, whilst he resists its allowance to the petitioner, now appellant.
    
      Montgomery and Boyd, and Hewett, for appellee.
    1. This court have decided in case of James v. Rovmn, 6. S. & M. 393, Ware v. Washington, Ibid. 737, that the representatives of the deceased husband are the only proper parties to a petition for dower. Here the representatives of the deceased are not made parties by name, or citations issued to bring them in; the only party to the petition, cited to answer, is Hewett, a stranger, and a purchaser for a valuable consideration. It is manifest that the court below had no jurisdiction over Hewett, as a defendant to this petition, so as to enforce against him any decree made in this cause. Had he demurred to the right of petitioner to claim discovery from, or relief against, him, as a defendant, it must have been sustained; his having answered does not change the case, as consent cannot confer jurisdiction.
    2. But it may be said that this was remedied by the publication of notice, that the application would be made at the next term, and summoning all persons interested to appear at that time. We think otherwise. We cannot admit such notice was intended to take the place of, and do away with, all other notice. If so, why was Hewett cited ?
    We can easily understand how, owing to the provisions of the statute, it might be of importance to those holding claims against an estate, to know that steps were about being taken, which might lessen the assets from which their payment must be made; but we cannot appreciate its application to the heirs of the deceased.
    3. But again, this notice is not given in compliance with the statute. H. & H. 352, 353, sec. 44. The statute evidently requires a publication, before filing the petition, of the intention so to do, not after filing, to announce, as in this case, that it has been done. Here we can only suppose this notice as being intended as a constructive notice, but by what authority? We insist that had there been an administrator of Bisland’s estate, it would have been no compliance with the statute, to have given him the notice after, instead of before, filing the petition; even so, there being no administrator, the notice is required to precede the,filing, commencing some thirty days prior thereto.
    This publication, then, complying with no law, must be considered as a mere voluntary act of petitioner, securing no rights to her, and not in the least affecting the rights of others.
   Mr. Justice Thacher

delivered the opinion of the court.

Appellant filed her petition in the probate court of Adams county, for dower in certain lands in the city of Natchez, embracing the last residence of her deceased husband. The only party appearing adverse to the prayer of the petition is a grantee of the same lands, claiming from and under a purchaser, to whom they were sold by virtue of an execution emanating from a judgment against the husband for the purchase-money of the lands. This party substantiates his title as directly derived from the enforcement of the vendor’s lien subsisting against the husband.

The probate court dismissed the petition for want of jurisdiction. This was error. That court had jurisdiction of the subject-matter of the petition, although none over the party holding an adversary claim to the property; nor could his appearance and answer confer such jurisdiction. Holloman v. Holloman, 5 S. & M. 561. The rights of this party cannot be affected by a decree of the probate court, allowing dower to the widow in this particular realty, for those rights must elsewhere be considered, as if no decree of the kind had been pronounced. In short, the only proper parties to a petition and proceeding by a widow for her dower, are the representatives of her husband. James v. Rowan, 6 S. & M. 393.

But it may save litigation to intimate, that if, as appears from the record in this case, the title of the husband became divested by the enforcement of the lien reserved by law to his vendor, the claim of the widow must ultimately fail.

The decree of the probate court must be reversed, and the cause remanded for further proceedings.  