
    
      Macaulay’s Ex’or v. Dismal Swamp Land Company and Others.
    December, 1843,
    Richmond.
    (Absent Cabell, P., and Stanard, J.)
    Dower — Seisin Subject to Deed ot Trust — Recovery of Rents and Profits. — Where a husband makes a deed of trust conveying- land with power to the trustees to sell the same for payment of debts, and they allow the husband to remain, in possession during his life, and make no sale under the deed until after Ms death, the husband is to he considered as having died seized of the land subject to the deed of trust, so that his widow, if she did not join in the deed, and is entitled to dower in the land, may recover rents and profits from the husband's death in like manner as if the deed had not been made. In case the widow die before recovering- such rents and profits, the same may be recovered to the peiiod of her death by her administrator.
    Same — Woodland Incapable of Cultivation.:1,. — A husband dies seized of land incapable of cultivation, and no otherwise productive or valuable than by working the timber and making sale thereof when converted into shingles. It appears that previous to as well as after the husband's death, the timber was worked, and large profits derived from the sale of shingles. Parties coming into possession after the husband’s death, under a deed of trust made by him in his lifetime, admit his widow’s right as dowress to one third of the timber worked, and for several years pay her one third of the proceeds of the same. Payment is afterwards stopped. Het/d, those in possession of the land after the husband's death shall account to the widow or her administrator lor one third of the profits received by them during her life, subj ect to credit for the payments made by them to the widow.
    Same — Laches -Account of Profits, — under a deed of trust of land made by a husband, the trustees after his death sell the land, and the purchaser conveys it away to others. A bill is afterwards filed by the widow against the trustees, the purchaser’s executor, and those in possession, claiming dower in the land, and an account of profits; pending whi ch suit the widow dies. The bill upon its face shews a delay, without excuse, of more than 20 years in calling the trustees and the purchaser's executor to an account. The sur-S08 viving trustee swears '•’positively that he has paid over to the widow every dollar for which he and his cotrustee were accountable, and exhibits vouchers in proof of his allegation. The widow, by her own shewing in the bill, prosecuted to recovery a suit against the executor of the purchaser, for her share of the profits received by him; and the only pretext for a further demand, and'that without a shadow of proof, is that she did not recover enough. Held, the plaintiff is entitled to no account as regards the trustees and the purchaser’s executor, and the bill was properly dismissed as to them.
    By two patents bearing' date the 29th of November 1796, the commonwealth granted unto Alexander Macaulay and Isaac Sexton and their heirs, jointly, two parcels of land lying in Norfolk county, one of them containing 300 acres, the other containing 7700 acres. These two parcels of land, which adjoined each other, constituting an entire tract of 8000 acres, were situate within the bounds of the Dismal swamp. By a deed dated the ISth of November 1797, Alexander Macaulay conveyed to Thomas Griffin and Thomas Nelson (among other property) one moiety of the said tract of 8000 acres, upon trust to sell the same as soon as they conveniently could, and out of the proceeds pay to certain creditors of Macaulay designated in the deed, in the order therein specified, the amount of the debts due them respectively, and pay the residue of such proceeds, if any, to the use of any other creditors of Macaulay. Elizabeth Macaulay, the wife of Alexander Macaulay, did not unite with him in this conveyance. The grantor died in July 1798.
    In November 1829, Elizabeth Macaulay' filed a bill in the superior court of chancery for the Williamsburg district, setting forth, that her husband the said Alexander Macaulay died seized in fee simple of an undivided moiety of the said tract of 8000-acres, and that she now holds the right of dower in the same. That previous to and since the death of Alexander Macaulay, the timber on the said land, for which the 509 same was principally *if not solely valuable, was worked, and large profits derived from the sale of shingles &c. That after the death of Alexander Macaulay, the trustees in the deed aforesaid, or Thomas Griffin the survivor of them, took possession of the land, and for many years caused the same to be worked, receiving during the time large sums from the proceeds thereof. That at a subsequent period John Jameson became possessed of the said land, and for many years worked the same, and received large sums from the proceeds thereof. That the Dismal Swamp land company thereafter got possession of the said land, and for more than twenty years past have worked the same, and received considerable sums from the proceeds thereof. That during the time the land was held and worked by the said trustees, the complainant received a portion of the proceeds in right of her dower; and that about the year 1817, she recovered by suit against the executor of Jameson the third part of 2000 dollars, with interest, as her portion of the proceeds for the year 1803, one of the years during which the land was held and worked by the said Jameson. That since the land has been in the possession of the Dismal Swamp land company, the complainant has at two different times received portions of the proceeds in part of her dower. That for these two payments, which were the only payments made to her by the said company on account of her dower right, indemnifying bonds with sureties were required and given, one of them bearing date the 9th of November 1816, the other the 10th of July 1817, both of which v/ere expressed in similar terms. (A copy of the first bond, the original whereof was afterwards filed with the answer of the company, was exhibited with the bill.) That from Griffin as surviving trustee, from the estate of Jameson, and from the Dismal Swamp land company, (which said parties have each, by their partial payments to the complainant, fully admitted her right to a third part of 510 all *the net proceeds of the said land) there are still considerable sums due and unpaid to her in right of her dower. That at the time of her said recovery from Jameson’s executor on account of the year 1803, she was advised that Jameson’s estate was only responsible to her for the third of the proceeds of that particular year; but she is now otherwise advised. That the last of the payments made to her by the Dismal Swamp land company was made on the 10th of July 1817; since which time the said company, although they have repeatedly admitted her right to a third of the proceeds of the said land, and have been often, ..called upon and pressed to pay the amount still due to her, have failed and yet refuse to pay the same. Griffin the surviving trustee, John M’Neale executor of Jameson, and the president and managers of the Dismal Swamp land company, were made defendants, and the prayer of the bill was, that accounts might be taken of the proceeds of the land for the time that the same was held by the said trustees, by Jameson, and by the land company, respectively, and for general relief.
    The president and managers of the Dismal Swamp land company answered, that they had no knowledge of so much of the plaintiff's case as respected the other defendants, and they considered that the same ought not to be blended with the demand against these respondents. That, upon the plaintiff’s own shewing, it could not be true that her husband died seized of an undivided moiety of the land in question, his seisin having been defeated by his conveyance to the trustees Griffin and Nelson. That these respondents, in the year-, became the purchasers of an undivided moiety of the said land at the price of 4000 dollars. That the land was not arable, but swamp land; its chief value consisted of the juniper timber thereon, and the profits arose from felling the timber and working it up into shingles. Sll That on the 9th of November *1816, these respondents paid the plaintiff 985 dollars 83 cents, taking from her a- refunding bond (which they exhibited). That on the 9th of July 1817, they paid her another sum of 460 dollars. That in 1818, as appears from the records of the company, an order was made to pay-her the further sum of 183 dollars 33 cents; and on the 15th of’November 1825, upon her statement that she had never received the last mentioned sum, an order was made by the company for its payment, and it was paid accordingly. The respondents charged, that the sums thus paid were not due to the complainant, but far exceeded her just claim as tenant in dower, if she had any such claim at all. The payments were made on an assumption that, as widow, she was entitled to one third of the net proceeds received from the land; But that assumption was manifestly erroneous; for, as tenant for life, she was not entitled to the timber, by the felling and sale of which alone the profits arose, but the same belonged to the respondents; and even if she had a title to share in the profits accruing from the timber, it was certainly not that of a proprietor in fee of one third, but only to an equivalent for her life estate therein, j which could not be more than one ninth j part, or at the utmost one seventh. The respondents therefore now claimed, on an adjustment of the accounts, to recover back with interest so much oí the sums paid the complainant as exceeded her due proportion. It would be seen, they said, “that by this erroneous mode of adjustment the complainant received in these payments 1629 dollars 16 cents, considerably more than one third of the fee simple cost, 4000 dollars, although it be true, and is so admitted by the bill, that the land was no otherwise productive or valuable than by working the timber, and making sale thereof when converted into shingles.” The respondents further stated, that in the year 1820 they had disclaimed all 512 future operations upon the ^former plan, and informed the complainant that she might have her dower assigned and laid off in the land; which, however, she had never done.
    The refunding bond, exhibited with the answer, was executed by Elizabeth Macaulay and two sureties. By the condition, — ■ after reciting that the said Elizabeth, as the widow of Alexander Macaulay, was entitled in right of her dower to one third part of the proceeds of timber from a moiety of 8000 acres of land in the Dismal swamp, of which said moiety the said Alexander Macaulay died seized, and of which the Dismal Swamp land company was now possessed; that the said company had that day paid her, in part of her dower thirds of the said proceeds, the sum of 985 dollars 83 cents; and that a suit was then pending in the federal court for the district of Virginia, in the name .of J. Mor-decai and others, against the devisee of Isaac Sexton and others, in which the plaintiffs claimed title to the said tract of land, — it was provided, that if the said suit should be determined in favour of the plaintiffs, and the said company should be compelled by law to refund the amount of proceeds received by them on account of the sales of timber from the. said land, Elizabeth Macaulay should in that case repay them the said 985 dollars 83 cents, with interest.
    Griffin the surviving trustee answered, that by an agreement between Alexander Macaulay and the creditors specified in the trust deed, Macaulay was permitted to retain possession of the trust property until his death, which happened in July 1798. That from his death until December 1801, when the Dismal Swamp land was sold under the trust deed, the trustees received the profits of the same, amounting in the whole to 4020 dollars, of which they paid to mrs. Macaulay, in right of her dower, one third part or 1340 dollars, • as would appear by her two receipts, (which were exhibited with the answer, one of 513 them bearing date the *27th of February, the other the 25th of November, 1801). That at the sale, in December 1801, of Macaulay’s undivided moiety of the land, John Jameson, one of the creditors named in the deed, became the purchaser thereof; since which period, nothing had ever been received by the trustees, or either of them, as profits of the said land, and they had never interfered with the same. And the respondent positively asserted that there was not one cent now due and unpaid to the complainant by the trustees, as the whole of her dower money was regularly paid to her by them as long as they received any dividends.
    To the answers of the Dismal Swamp land company and Griffin, the plaintiff replied generally.
    In February 1830, Elizabeth Macaulay the plaintiff died; and in July following, the suit was revived in the name of Robert Anderson her executor.
    The cause having been transferred to the circuit superior court of law and chancery for James City county and the city of Wil-liamsburg, Anderson the executor filed an amended bill in that court, in July 1833, seting forth, that the intermarriage of Alexander and Elizabeth Macaulay took place in 1781: that during the coverture the said Alexander was seized of an estate of inheritance in art undivided moiety of the aforesaid tract of 8000 acres: that Isaac Sexton died before the said Alexander, and by his will devised his undivided moiety of the said land to his son Edwin Sexton, who held the same for many years : that Edwin Sexton having, in February 1823, taken the oath of an insolvent debtor, and surrendered his interest in the said land, the said interest was thereupon sold, and Richard H. Drummond and Harrison Allmand became the purchasers thereof, that is to say, the former became the purchaser of three fifths, and the latter of the remaining two fifths: that Allmand subsequently sold and conveyed his undivided two fifths to Joseph T. Allyn : that the said Edwin Sexton, 514 *Drummond, Allmand and Allyn had respectively derived large profits from the said land, by cutting the timber, getting out shingles, &c. : and that the said Elizabeth Macaulay never did receive the full amount of her dower interest i-n the said land, although repeated demands were made therefor before her death. The prayer was, that the defendants to the original bill might be made defendants to this amended bill, and required to answer the same; that the administratrix of Nelson the deceased trustee, the administrator of Edwin Sexton deceased, and Drummond, Allmand and Allyn, might be made defendants to both bills, and required to answer the same; that accounts might be taken of all the proceeds and profits derived from the land by the said Edwin Sexton, Drum-mond, Allmand and Allyn, respectively, and by the trustees Griffin and Nelson jointly, or the said Nelson separately; and that the complainant might have a decree for one full third of the net profits of an undivided moiety of said 8000 acres of land, as the interest to which his testatrix was. entitled, and general relief.
    Griffin the surviving trustee put in an answer to the amended bill, in substance the same with his answer to the original bill.
    M’Neale the executor of Jameson put in an answer to both the bills, in which (not admitting but wholly denying the matters charged against him) he alleged and insisted, that when , the said bills were respectively exhibited, he was, as he had ever since been, a resident of Culpeper county, without the jurisdiction as well of the superior court of chancery of Williams-burg, as of the circuit superior court of James City: that the matters charged in the said bills against this respondent and against the other defendants are wholly distinct and separate in interest, and not of common and joint interest between this respondent and the other defendants, so as to give and draw to the said courts jurisdiction over this respondent, together with the other defendants, as 515 *to the matters alleged in the said bills: and therefore that the said courts had no right, power or authority to entertain jurisdiction of the cause against this respondent. He also relied upon the lapse of time, and the act for the limitation of actions and suits, in bar of the demand asserted against him by the said bills.
    To the foregoing answers of Griffin and Jameson’s executor, the plaintiff replied generally.
    Nelson’s administratrix, Edwin Sexton’s administrator, Drummond, Allmand and Allyn failed to answer, and the bills were taken for confessed as to them.
    The cause coming on to be heard the 30th of October 1835, the circuit court decreed that the bills be dismissed with costs.
    From that decree Anderson the executor of Elizabeth Macaulay appealed to this court.
    Daniel for appellant.
    This case is distinguishable from Tod v. Baylor, 4 Eeigh 498, and Thomas v. Gammel & wife, 6 Leigh 9, upon the supposed authority of which the circuit court seems to have proceeded in dismissing the bill. Those were cases of absolute alienation by the husband of all right legal and equitable. Here there was merely a trust deed, a charge for the payment of debts, executed after the marriage and after the wife’s title to dower had accrued: and the husband died seized of the equity of redemption. Mortgages are considered, both at law and in equity, as mere chattel interests, mere securities for money, the mortgagee acquiring a new estate by entry upon the breach of the condition. 1 Powell on Mortgages (Boston edi. of 1828) p. 112, note E, Runyan v. Mersereau, 11 Johns. R. 534; Doe v. Pott, Dougl. 720, 21. Where a wife joins her husband in a mortgage, but not in a subsequent release, she is entitled to dower in the equity of redemption, and to an 516 account of rents and profits *from his death. Swaine v. Perine, 5 Johns. Ch. R. 482; Hale v. James, 6 Johns. Ch. R. 258. Again, though where the right is merely equitable, equity follows the law, yet where the court exercises its own peculiar jurisdiction (as where the widow comes into equity to get a term out of her way), the relief is larger: profits will be given from the time the title accrued. Dormer v. Eortescue, 3 Atk. 130, 31. In Curtis v. Curtis, 2 Bro. C. C. 620, profits were decreed to the representative of the widow from the time of the husband’s death, and against the representative of the heir, though it was admitted that damages would not have been recoverable at law. The statute giving dower in trust estates has innovated largely on the technical principle of seisin on the husband, and shews the spirit of our legislature on the subject.
    II. Where dower is demanded against the alienee of the husband and refused, damages are given from the time of such refusal. Park on Dower p. 302. Here the widow’s right has been acknowledged by all who have held the estate since her husband’s death. They were receivers or bailiffs, liable to account, and actually accounting.
    III. It nowhere appears that those persons had any other title than possession. Their title is merely affirmed in the answers, but not proved.
    IV. The widow is entitled to one third of the profits of the timber cut from the land. The only mode in which the estate could be enjoyed was by making a profit of the timber. In Crouch v. Puryear &c., 1 Rand; 2S8, it was held that a dowress may take coal to any extent from a mine already opened, or sink new shafts in the same vein of coal, or penetrate through a seam already opened and take coal from a new seam that lies underneath. The principle of that case is directly applicable to this.
    S17
    *Cooke and Patton for appellee Griffin.
    The court below was right in dismissing this bill as against Griffin, I. Because the suit was brought against him nearly 27 years after his alleged receivership had terminated. If this be in substance a suit for money had and received, the court of equity, which proceeds by analogy to the limitation at law, will hold it barred by the lapse of five years. Hovenden v. Cord Annesley, 2 Sch. & Bef. 631. And whether the statute, applies or not, the claim is at all events objectionable as stale. Carr’s adm’r &c. v. Chapman’s legatees, S Heigh 164, and authorities there cited. It is true that neither the lapse of time nor the statute of limitations is relied upon in Griffin’s answer. But where a bill asserts a claim which on its face appears to be stale, and such that equity on its known principles will not entertain it, the bill is demurrable unless it assigns a sufficient reason for the delay to sue. Story’s Eq. PI. 389, 'i 503. And though the defendant answer without relying upon that objection, the court may nevertheless dismiss the bill upon that ground. Story’s Eq. PI. 352, § 447.
    II. Because the bill is multifarious Story’s Eq. PI. 407, g 530. This is a fatal defect, and the defence need not be set up in the pleadings in any way. Id. p. 224,, g 271.
    III. Because the plaintiff, by a suit commenced in November 1829, seeks to recover of Griffin profits received by him from 1798 to 1802; whereas by the case of Tod v. Baylor, 4 Eeigh 498, it is settled that a widow cannot recover of her husband’s alienee any profits except from the time when her subpoena was sued out.
    IV. Because the bill having called upon Griffin to render a full and true account of all the profits which had been received by himself and his cotrustee, he did render a full account upon oath. Such account is prima facie evidence. Cavendish v. 518 Eleming, 3 Munf. 198. It *is neither falsified, nor does the amended bill, filed after Griffin’s answer, call in question any of its statements. Upon the account so rendered it appears that the plaintiff had no just claim whatever against Griffin.
    Harrison for M’Neale executor of Jame-son.
    The plaintiff here has brought, in the court of chancery, a joint action of trespass for several trespasses alleged to have been committed at several times by several tortfeasors. ' There is no connexion in interest shewn between the defendants. Jameson’s executor pleads the misjoinder, pleads to the jurisdiction of the court as to' him, and also relies upon the lapse of time and the statute of limitations. Upon all these grounds the bill was properly dismissed as to him. His answer further denies and puts in issue all the allegations of the bill against him, and there is no proof to sustain them.
    Stanard for the Dismal Swamp land company. At common law, in no real action, possessory or droiturel, were damages given against the tenant for the mesne profits of the land recovered. When therefore dower was detained against the widow, and she was obliged to bring a writ of dower, she was by the common law entitled to the profits of her third part of the lands from the time only when she recovered judgment; for the tenant was permitted to retain the profits of the estate intermediate the recovery against him in possessory actions, and his entry into possession, to-enable him to .perform the feudal services. 1 Roper on Husband and Wife p. 437. This-was changed by the statute of Merton, which we have enacted in terms, 1 R. C. of 1819, p. 403, ch. 107, § 4. But by that statute a widow “shall recover damages only when her husband dies seized, that is, seized of the freehold and inheritance.” Co. Litt. 32 b. And the case of Bromley v. Bittleton, Yelv. 112, decides, that a mere finding that the husband died 519 *seized. (not expressing that he died seized of the freehold and inheritance) is insufficient to entitle the widow to judgment for dower. Here the husband at the time of his death had no seisin of the freehold or inheritance in the land in question; no title, in fact, legal or equita-blé, bat, only (at most), a bare possession. The legal title was in the trustees- to whom he had conveyed the land; the equitable title in the cestuis que trust, the creditors provided for by the deed. Macaulay himself had nothing but a resulting trust in the surplus proceeds of the land after satisfying the objects of the conveyance. There is no sufficient evidence, as against the Dismal Swamp land company, that he was even in possession of the land at the time of his death. The statement of the trustee Griffin on that subject is no evidence against his codefendants.
    Our statute making widows dowable of their husband’s trust estates can have no influence on the case. The bill does not claim dower in the equity of redemption or resulting trust (if any such there were) of the husband, but asserts generally a right to dower in the land.
    II. The case of Tod v. Baylor, 4 Leigh 498, does not decide that the widow there was entitled against the husband’s alienee to rents and profits from the time of instituting her suit. Three of the judges concurred in the opinion that she was entitled to rents and profits only from the date of the decree. And as the decree does not give profits from the institution of the suit, although it directs the account to be taken from that period, it is not inconsistent with the opinion of those judges. This construction of that case is confirmed by the subsequent case of Thomas v. Gammel & wife, 6 Leigh 9.
    The proposition in Park on Dower p. 302, 3, that even where the husband does not die seized, the wife may become entitled to damages against his alienee 520 *from the time of demand and refusal of her dower, is not supported by the authorities there cited. And Park himself lays down the proposition doubtingly-. On the other hand, though the husband die seized, the widow may lose the right to damages from his death, by laches in demanding her dower. Co. Litt. 32 b.; Delver v. Hunter, Bunb. 57.
    It is suggested, however, that the rights of the widow have been recognized by the grantees under her husband, and that such recognition is equivalent to the institution of a suit for dower, which was thereby rendered unnecessary. But it appears that in 1820 the land company refused to make any further payments to the widow, and informed her that she might proceed to have her dower in the land assigned, if she thought proper. The payments previously made by the company can only be considered as.,made under a mistaken impression of their rights, and cannot bind them after the mistake has been discovered. The widow has received what she had no title to, and her representative ought to consider himself fortunate that he is not compelled to refund. She had no estate in the lan'd previous to assignment of dower, but a mere right of action (1 Lomax’s Digest p. 92,) and therefore there is no pretence for supposing that the defendants held the land as the joint property of the-widow and themselves, accountable to her for a share of the rents and profits.
    III. Unless the defendants were tenants of the freehold, the suit for dower cannot be maintained against them. The plaintiff, claiming as dowressj must admit that they have an estate in the land of which she may be endowed. A writ of dower, certainly, could not be maintained against any except a tenant of the freehold; and equity follows the law, where the dowress, instead of suing at law, resorts to the court of chancery. The suggestion that these parties have no title to the land, but are mere tortfeasors, having only a wrongful possession, is made for the first time in this court.
    521 *IV. The foregoing views are presented on the supposition that the defendants have received rents and profits to which the widow as tenant in dower might possibly have a claim. We contend, however, that the profits received by the defendants were derived from a subject in which the widow as tenant in dower had no sort of interest. They were derived from the severance and sale of the timber on the land, which constituted the whole value. Where timber growing on land is severed therefrom, whether accidental^ or by design, the party entitled to the first estate of inheritance in the land is entitled to the timber, and may maintain trover for it; and no other person has any right to the same. 2 Wms. Saund. 47b., note (f); Ear-rant v. .Thompson, 5 Barn. & Aid. ,826; 7 Eng. C, L. Rep. 272. Both at common law and ,by the statute (1 R. C. of 1819, p. 462, ch. 117, $ 1,) the dowress in possession is chargeable for waste; and it is the settled doctrine in England that it is waste in a tenant for life to cut timber growing on the land. And though what is waste in England is not in all cases waste in this country, and the dowress may cut away timber for the purpose of clearing and improving land which would otherwise be valueless or nearly so, — for the purpose of enjoying the land in the only mode in which it can be enjoyed, that is, by cultivation (Findlay v. Smith &c., 6 Munf. 148, opinion of Roane, L ) — yet she cannot here, any more than in England, do that which tends to the disherison of the heir, or the destruction or lasting damage of the inheritance. Here the timber constituted the whole value of the land; and to allow the widow to cut and sell the timber in such a case, would be allowing her to impair, or rather to destroy, the inheritance itself. In 7 Bac. Abr. 261, it is laid-down that a tenant for life of land which is altogether in woods, is still not entitled to cut the timber, though no profit could be de-522 rived *from it in any other mode. The case of Crouch v. Puryear &c., 1 Rand. 258, which decides that a dowress may work an old mine, decides also that she has no right to open a new one. Her rights in that respect are the same in England and-in this country. In this case the question is different; namely, how far the undoubted law of England as to waste in cutting timber has been modified among us. In New York, a rule applicable to the circumstances of the country has been adopted, and the tenant is allowed to clear a portion of the land for cultivation. Jackson v. Brownson, 7 Johns. R. 227.- This (which is also the rule adopted in this state, as appears by the case of Findlay v. Smith &c.) is the utmost extent to which the modification of the english law has been carried. In Massachusetts, it has been held that a widow is not dowable of wild lands at all. Conner v. Shepherd, IS Mass. R. 164. Here the land was wholly unfit for cultivation; the only profit was to be made by cutting down and selling the timber. If to sever the timber from such land for such a purpose be waste, it should seem that the widow was not entitled to be endowed of the land at all: for it is laid down by Bracton (as cited in Park on Dower p. 115,) that a woman cannot claim a thing in dower, unless she may use and enjoy the thing of which she is dowable sine vasto, exilio et destructione.
    In Pigot v. Bullock, 1 Ves. jun. 479, it was decided that until the estate of tenant for life comes into possession, he has no right to an account of underwood wrongfully cut by a preceding tenant. Here the dowress had no estate at all in the land when the timber was cut, and therefore woud have been entitled to no account of the profits derived from that source, even though the cutting had been wrongful. But the 'parties against whom the account is claimed were entitled to the inheritance of the land, and were guilty of no wrong in cutting the timber.
    523 *V. It is submitted that the objection for multifariousness in the bill is sufficiently taken by the answer of the Dismal Swamp land company. But if no such objection had been made, the authorities cited by the counsel for Griffin establish that the bill might nevertheless have been dismissed for that cause at the hearing.
    R. G. Scott, in reply,
    insisted upon the waste, as it exists in England, is not applicable to the woodlands of this country; that a widow is dowable of such lands, though she can no otherwise derive profits from them but by the severance and sale of the timber; and that the measure of her right is one third of the net annual profits, as in the case of an open mine. On this subject, he examined and commented upon the cases of Findlay v. Smith &c. and Crouch v. Puryear &c. (before cited) and Stoughton v. Leigh, 1 Taunt. 402, — 2. That Macaulay, having made no 'absolute alienation of the land, but a mere incumbrance thereof for the payment of debts, was to be considered as dying seized, and his widow as entitled to profits from the time of her husband’s death; according to the cases of Swaine v. Perine (before cited) and Banks v. Sutton, 2 P. Wms. 700, — 3. That even supposing here was an absolute alienation by the husband during the coverture, the widow would be entitled to damages from the time of her demand of dower. Park on Dower p. 302, 2 Wms. Saund. 44d, note 4; and in this case such demand was both made and acceded to very early after the death of the husband. 4. That if this case stood only upon the same grounds as Tod v. Baylor and Thomas v. Gammel & wife, mrs. Macaulay would at least be entitled to profits from the date of the subpoena. 5. That her right to profits (from whatever period commencing) was not lost by her death pending the suit, but passed to her personal representative; Curtis v. Curtis, 2 Bro. C. C. 620,-6. That in 524 *this case all questions as to the widow’s right to be endowed, as to her proper share of the profits, or as to the period from which the account should be taken, were entirely precluded by the acts and admissions of the defendants themselves; and in that respect the case was different from all those which had been cited for the appellees. 7. To shew that the objection of multifariousness in the bill, rather of misjoinder of defendants, taken by Griffin and the executor of Jame-son, has no application to such a case as this, he cited and relied upon Story’s Eq. PI. p. 229, 230, and notes there. At alt events, he contended, the objection could only have been made available by demurrer. Id. p. 203, $ 237, note 2. As to the alleged staleness of the claim, Griffin was not entitled to make that objection, since he had neither pleaded the statute of limitations nor demurred to the bill; Id. p. 389, § 503, note 4. And the objection, though made by Jameson’s executor in his answer, was sufficiently obviated by the circumstances of excuse stated in the bill. In respect to the plea of Jameson’s executor to the jurisdiction of the court, upon the alleged ground of his residence out of the former district and present circuit, it was sufficient to remark that the fact was put in issue by the plaintiff’s replication, and no proof of it had been adduced.
    
      
      He had been counsel for the company.
    
    
      
      Dower — Laid Off by Metes and Bounds. — In Tracey v. Shumate, 22 W. Va. 498, the court, in speaking of the right of the widow to have her dower laid off by metes and bounds, said: “But the court of appeals of Virginia has long since settled this question in Macaulay v. Dismal Swamp Co., 2 Rob. 507, in which the court held, that when a husband makes a deed of trust conveying lan d to a trustee to secure debts, and the husband remains in possession till his death, no sale by the trustee being made in his lifetime, the husband is to be considered as having died seized of the land subject to the deed of trust, so that the widow, if she did'not join in the deed of trust, is entitled to dower in like manner, as if the deed had not been made: and therefore of course she has a right to have her dower assigned her in kind and by metes and bounds.” See monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
      Waste — How Applied in This Country, — The law of waste, in its application here, must be varied and accommodated to the circumstances of our new and unsettled country. Findlay v. Smith, 6 Munf. 134, 8 Am. Dec. 733. The principal case is cited for this proposition in McDodrill v. Pardee, etc., Co., 40 W. Va. 579, 21 S. E. Rep. 883; Bond v. Godsey, 99 Va. 568, 39 S. E. Rep. 216.
      Same — Life Tenant-Right to Open ¡Tines. — The principal case is cited in Bond v. Godsey, 99 Va. 566, 39 S. E. Rep. 216: Koen v. Bartlett, 41 W. Va. 559, 23 S. E. Rep. 665. See Williamson v. Jones, 43 W. Va. 562, 27 S. E. Rep. 411: Crouch v. Puryear, 1 Rand. 258.
    
   BALDWIN, J.

The law gives dower to the widow, as a source of income for the maintenance of herself and family. It is a provision founded in justice and humanity, and highly favoured both at law and in equity. Her essential right is to the profits of one third of her husband’s real estate of inheritance, whereof he was seized at any time during the coverture; and she is entitled for that purpose to the several possession of one third of the subject, if susceptible of a division by metes and bounds. If the subject be not so paitible, still she is admitted to her due participation of the profits; *and the mode of enjoyment is adapted to the nature of the case. The nature of the property is wholly immaterial, as regards the right to dower, provided it be, or savour of, the realty; and this is equally true in regard to the nature of its products. Thus a widow is dowable of lands, whether arable, meadow, or woodland; of manors, houses, mills and factories; of rents, whether rent-charge, rentseck, or rentservice; of dovecotes and warrens; of fairs, markets, ferries and fisheries; of common certain, gross or appendant; of advowsons, gross or ap-pendant ; of tithes; of shares in road or navigation companies, &c.

But the widow’s enjoyment is, by reason of her limited estate, confined to the use and products of the property; and she may not despoil or waste it, to the disherison of the heir; she is to enjoy, but not abuse it; to take the profits, but not convert or break in upon the capital. Bike other tenants for life, the restriction upon her exercise of ownership is to be found in the law of waste. What shall be considered waste is to be determined, in general, by the mode, not the extent, of enjoyment to which the tenant succeeds. The tenant is not at liberty to convert arable land into meadow, or meadow into arable land; nor a mill into a dwelling house or brewery; though not only the immediate profits, but the permanent value of the property, be thereby enhanced. The removal of the soil and minerals, and the opening of new mines, are also prohibited. But if mines - have been opened or worked by one having authority as the owner of the fee, the dow-ress may continue to work them, and that without stint; and moreover sink new shafts for the purpose, into the same mine, vein, bed or body of the mineral so devoted to the yielding of profit.

Waste in woods is to a great extent, though not exclusively, governed by the general rule already mentioned. In the country from which we derive our laws, 'x'timber is of such importance that it enters largely into the value of the subject, and its preservation is deemed essential to the protection of the inheritance. The tenant is therefore prohibited from cutting it at all. To this there are some exceptions, arising out of the duty and wants of the tenant; to whom certain estovers are allowed, for the reparation of the buildings and enclosures, the construction of agricultural implements, and for the supply of fuel. These involve a question as to the extent of the tenant’s enjoyment; and that depends, more or less, upon the exigencies of the occasion, the abundance or scarcity of the material, and the local usages of the county or vicinage.

In regard to mines, the english doctrine (for which see Stoughton v. Leigh, 1 Taunt. 402,) is not unsuitable to the condition of our country, and has been recog-nised in Crouch v. Puryear &c., 1 Rand. 258, and Coates v. Cheever, 1 Cowen 460. As to waste in woods, though the principle which prevents timber from being cut, to the detriment of the inheritance, is the same in both countries, yet the application here of the rigid rule that prevails in England would defeat its own purpose. Instead of the scarcity existing there, we have often a superabundance here, and the clearing of lands, to a greater or less extent according to circumstances, may enhance instead of diminishing the value of the property. With us, therefore, the restraint upon the power of the tenant for life ought, in this respect, to have reference not to the mode but to the extent of enjoyment. In England, the tenant may cut and sell the coppice and undergrowth, and even young timber trees under a certain age, at seasonable times, 1 Lomax’s Dig. 52; Pigot v. Bullock, 1 Ves. jun. 479; and the reason assigned is, that no advantage can arise to a tenant for life from woods of that kind, but by the sale of them: and what shall be considered timber trees there depends in some measure upon local usages, arising oul of the peculiar *growths of various tracts of country. Here it is enough that the tenant does no wanton mischief, and leaves a sufficient supply of timber for the wants of him in remainder or reversion.

That the law of -waste, in its application here, must be varied and accommodated to the circumstances of our new and comparatively unsettled country, was recognized by all the judges who noticed that topic, in Findlay v. Smith &c., 6 Munf. 134. And chancellor Kent, in his Commentaries, vol. 4, p. 76, says, that the american doctrine on the subject of waste is somewhat varied from the english law, and is more enlarged and better accommodated to the condition of a new' and growing country. The proposition is well sustained by adjudged cases. In Jackson v. Brownson, 7 Johns. R. 227, it was held that the tenant may clear part of wild and uncultivated land for the purpose of cultivation, but must leave wood and timber sufficient for the permanent use of the farm; and that it is a question of fact for a jury, what extent of wood may be cut down in such cases without exposing the party to the charge of waste. In North Carolina, it has been held not to be waste to clear tillable land for the necessary support of the tenant’s family, though the timber be destroyed in clearing. Parkins v. Coxe, 2 Hayw. 339. And in Pennsylvania, in the case of Hastings v. Crunckleton, 3 Yeates 261, the court said, it was an outrage upon common sense to apply the eng-lish law of waste to a widow’s use of uncleared dower land in this country’; and held that she may clear, if she do not exceed the relative proportion of cleared land, considering the tract as a whole.

In the case before us, the widow’s claim was to dower in a large tract of swamp land, incapable of cultivation, and stated in the answer of the principal defendants (the Dismal Swamp land company) to be “no otherwise productive or valuable than byr working the timber, and ^making sale thereof when converted into shingles.” If a tenant for life cannot have the use of it for that purpose, it is to such tenant utterly worthless, and a mere burthen. If a dowress may not enjoy it in the only mode of which it is susceptible, she may be left to starve, though her husband’s whole capital has been invested in it with a view to annual profits. It is said, that if it cannot be enjoj'ed but by cutting down and selling the timber, that being waste, it serves to shew that she cannot be endowed at all. But this is founded upon the idea that she is not at liberty to cut down the timber except for the purpose of tillage; a proposition which, to my mind, cannot be maintained. She may, as I conceive, in such a case as this, cut down the timber ad libitum, and make all the profit of it she can, provided she does not thereby prevent the reversioner from making the like profit. By our law of waste in woods, the restraint upon the tenant has reference not to the mode but the extent of enjoyment. If enough be left for the successor to the inheritance, he has no cause of complaint; and what will be enough is a question of fact, to be determined upon all the circumstances of the case. In cases like this, the extent of the tract, the quan - tity of timber, the period of reproduction, the demands of the market, the expenses of the employment, are all elements of the enquiry; and if these should lead in such cases to a just and convenient rule of uniform application, I presume it will be this, that the tenant’s use of the timber shall be so restricted as to leave to the successive tenants and owners an equally extensive use of it,' at least.

There are other facts in this cause which give additional force to the widow’s claim of dower. Her right was not only admitted, but the substantial enjoyment of it allowed, for several years, by the defendants now in possession. In the years 1816 and 1817, the Dismal Swamp land company made payments to her on account *of her interest in the profits, and took from her bonds conditioned for refunding the moneys in case an adverse title should be established as paramount to that of her husband; in which bonds her right as dowress to one third of the timber worked by the company is distinctly stated: and in 182S an order was made by the company for a further payment to her on the same account, which payment had been previously directed by a former order in the year 1818. ’ Her right had also been recognized by the trustees in the deed of trust from her husband (under which alt the defendants claimed), and payments made to her by the trustees of one third of the dividends of proceeds, in February and November 1801.

Whether these circumstances were equivalent to an actual .assignment of dower, I deem it unnecessary to enquire. They surely amount to such a recognition of the widow’s right, as to dispense with all evidence on her part, and throw the whole burthen of proof • on the other side. The bill charges, not only that the husband was and died seized of his undivided moiety of the land, but that, previous to as well as since his death, the timber was worked, and large profits derived from the sale of shingles &c. This allegation is not denied by the answer of the Dismal Swamp land company, and under the circumstances above mentioned must be taken as true as respects those defendants, at least until disproved.

The case is thus presented of a dowress succeeding to a mode of enjoyment of the property adopted by the husband himself; and is not unlike the case of an open mine, which unquestionably may be worked by her to any extent. It is, in truth, a mine upon the surface; not of minerals, incapable of renewal, but of vegatable matter, in a constant course of spontaneous reproduction. The right of a dowress to work such timber has been recognized in North Carolina; for in Ballentine v. *Poy-ner, 2 Hayw. 110, it was admitted that the tenant in dower may use timber for making staves and shingles, when that is the ordinary use, and the only use, to be made of such lands.

The widow having died pending this suit, her right to dower is only important as it affects the claim of her executor to mesne profits till the period of her death. Though at law the damages for mesne profits are lost by the death of either plaintiff or defendant in dower before judgment therefor, it is well settled to be otherwise in equity, from the consideration that the profits of a third part of her husband’s real estate are her only subsistence from his death.. 1 Roper on Husband and Wife p. 452.

But the plaintiff’s claim to mesne profits is resisted, upon the authority of Thomas v. Gammel & wife, 6 Leigh 9, and Tod v. Baylor, 4 Leigh 498. In the former, it was held that mesne profits cannot be recovered at law by the widow against the alienee of her husband, because the statute of Merton, adopted into our code, gives damages only where the husband dies seized; and in the latter, that they cannot be recovered in equity, which conforms to the law in this respect. These cases give the rule where the .husband in his lifetime has conveyed the land to a purchaser; but they have no application to incumbrances by mortgage or deed of trust, which are only securities for the payment of money, and still leave the grantor owner of the estate. Where the husband sells and conveys the estate by an absolute deed, though during the coverture, there is nothing left in him; and therefore, though the wife who has not united is entitled to dower, because he was at one time seized during the coverture, yet she cannot recover damages or mesne profits against the alienee, because her right to these is founded upon the statute of Merton, which requires the husband to have died seized. But where the land is mortgaged by the husband after marriage, he is *to be regarded as seized until foreclosure ; and even where the wife has united in the mortgage, she is entitled not only to dower in the equity of redemption, but to .an .account of the mesne profits from the death of her. husband. He is to be considered as having died seized of the equity of redemption, or of the real estate subject to the mortgage; and in such case the settled course is to compute the rents and profits from the husband’s death. Swaine v. Ferine, 5 Johns. Ch. R. 482; Hale v. James, 6 Id. 258.

The case of the incumbrance in question cannot be distinguished from a mortgage, or ordinary deed of trust, to secure the payment of money. It contains, indeed, no clause of redemption, and provides that the trustees, so soon as they conveniently can, shall sell the property conveyed, and out of the proceeds pay the debts specifically mentioned as intended to be secured, and pay the residue, if any, to the use of any other creditors of the grantor. Still, however, an equity of redemption was inherent in the very nature of the instrument, and none of the cestuis que trust could have been entitled to more of the proceeds than enough to satisfy their demands.

In this case, there is nothing to prevent an account of the mesne profits from the time of the husband’s death, as respects the defendants originally accountable, against whom the claim has been asserted in due time. For reasons already suggested, the husband must be regarded as having been seized during the coverture and at the time of his death. In equity, the account of mesne profits is usually given from the time of the husband’s death, the widow being prima facie entitled from the time her right to endowment accrued ; and some reason must be shewn by the defendant to limit the account. 1 Roper on Husband and Wife p. 453; Oliver v. Richardson, 9 Ves. 222. The statute of limitations is no bar, either at law or in equity. Ibid. The mesne profits *are assessed upon the defendants respectively, according to the time of their respective enjoyment of the land. Hazen v. Thurbur, 4 Johns. Ch. R. 604.

There is iro reason why the defendants in possession, the Dismal Swamp land company, should not account for one third of the whole of the clear profits received by them from their undivided moiety of the 8000 acres, subject to credits for the payments made by them to the widow; nor why that account should not be brought down to the period of the widow’s death. It is too late to enquire (if that was ever proper) whether the timber was worked to such extent, that the widow’s share of it would exceed what she would have been entitled to if her dower had been assigned to her by metes and bounds. The course of conduct pursued by the principal defendants has been such as in itself to preclude any enquiry of that sort, as respects them. After having recognized her right to one third of the profits for a number of years, and making her payments from time to time on that basis, they were not justifiable •in refusing to continue that mode of adjustment, at least until dower was formally assigned. It is true they say in their answer, that in the year 1820 they disclaimed all future operations on the former plan, and informed the widow that she might have her dower assigned and laid off in the land. But of this there is no proof; and if there were, it was their duty, at least after what had occurred, to assign the dower specifically, and, as that could not be done without partition with their tenant in common, to procure such partition.

As regards the trustees, and the executor of Jameson, I think the plaintiff is entitled to no account, and that the bill was properly dismissed as to them. The bill upon its face shews a delay, without excuse, of more than twenty years in calling them to an account. The surviving trustee swears positively that he paid over to the widow every dollar for which he and his co-trustee *were accountable, and exhibits vouchers in proof of his allegation. The widow, by her own shewing in her bill, prosecuted to recovery a suit against the executor of Jameson, for her share of the profits received by him; and the only pretext for a further demand, and that without a shadow of proof, is that she did not recover enough.

It may be doubted whether it was proper to make the representatives of Sexton the copatentee and tenant in common with the husband, and those claiming under them, parties in this suit, by the amended bill, filed after the widow’s death; inasmuch as no assignment of dower could then be sought, and if the plaintiff can have any claim against them, it must grow altogether out of a settlement of accounts between them and the Dismal Swamp land company. But as they have never answered, and the bill has been taken for confessed against them, and it is possible that in the progress of the account to be directed the propriety of convening them may be made to appear, I think it was premature to dismiss the bill in regard to those defendants.

My opinion is, that the decree of the circuit court is erroneous in dismissing the plaintiff’s bill, except as against the trustees and Jameson’s executor; and that it ought to be reversed, and an account directed of the plaintiff’s one third of the mesne profits received by the Dismal Swamp land company prior to the widow’s death, and of the payments made to her by them; with a view to a decree for any balance which may be found due to the plaintiff.

ADMEN, J., concurred in the opinion delivered by judge Baldwin.

BROOKE), J.

The company having acknowledged the right of the widow to one third of the profits of the land in which she claims dower, by paying her from time to *time her portion of those profits, it is now too late for them to question that right. The objection that the subject is such that she cannot claim dower has nothing in it. The timber on the land being the only subject of profit, the destruction of her portion of it cannot make her liable to the charge of committing waste, as in other cases at the common law, in which timber belongs to the rever-sioner, with 'the exception of housebote, firebote, &c. Had the company refused to pay her one third of the profits, the suit would have been brought at an earlier period, when her dower in the land would have been assigned her. As to the time from which she was entitled to one third of the profits, this case is not like that of Tod v. Baylor. In that case the husband did not die seized of the land, and the court thought the widow was only entitled to profits from the issuing of the subpoena, with the exception of the president, who thought • that she was only entitled to profits from the date of the decree. In the case before us, the deed of trust executed by the husband was an incumbrance only, and he died seized of the land. The widow was therefore entitled to profits from the death of her husband to the time of her own death, according to the statute of Merton, adopted in our act concerning dower. I therefore concur in the decree that has 'been agreed on by the court.

The decree of the court of appeals was entered in the following terms:

This court is of opinion that the decree of the circuit superior court is erroneous, except so far as the same dismisses the bill of the appellant against the trustees of Alexander Macaulay, and .the executor of John Jameson: therefore it is decreed and ordered, that the said decree, so far as the same is above declared to be erroneous, be reversed and annulled, and that the residue thereof be affirmed, and also that the appellees the xDismal Swamp land company pay his costs by him expended in the prosecution of his appeal aforesaid here, and further that the appellant, out of the estate of his testatrix in his hands to be administered, do pay unto the appellees the representatives of John Jameson, Thomas Griffin and Thomas Nelson their costs by them about their defence in this behalf expended. And it is ordered that the cause be remanded to the said circuit superior court, with instructions to direct an account of the appellant’s testatrix’s one third of the mesne profits received by the Dismal Swamp land company prior to her death, and of the payments made to her by them, with a view to a decree for any balance which may be found due to the appellant.  