
    Joseph Wallis vs. John Doe, ex dem. Chafin Smith’s Heirs.
    By our statute, the widow has a right to remain in the mansion house of her deceased husband, free from molestation and rent, until her dower is assigned; yet, this is a personal privilege, which cannot be transferred.
    The heirs at law may maintain an action of ejecfment for the mansion house, against third persons, claiming under the widow, before the assignment of her ' dower.
    A recovery cannot be had in an action of ejectment, without proving that the defendant was in possession of the premises, at the time of bringing the suit.
    The tenant in possession is the party who must always be served with process.
    Appeal from the circuit court of Holmes county.
    This was an action of ejectment, brought by the heirs at law of Chafin Smith, to the October term, 1839, of the circuit court of Holmes county, to recover a tract of land lying in that county. The declaration and notice were served on Joseph Wallis, who, at the July special term, 1840, appeared, and caused himself to be made defendant, confessed the lease, entry, and ouster, &c., and pleaded not guilty. On the trial it was proved, that the plaintiffs were the heirs at law of Chafin Smith, who in his life-time was admitted to have had title to the land in dispute, that he lived upon it, and, at the time of his death, it was his homestead; that Joseph Wallis purchased it, at sheriff’s sale, under an execution against Jane Smith, who was the widow of said Chafin Smith, and claimed it by virtue of said purchase; that at the time of the commencement of the suit, the land was in possession of one Martin, who held and claimed it as his own; that Joseph Wallis sold it to said Martin, but none of the witnesses knew of any written contract between them, or conveyance to Martin.
    The defendant’s counsel then read to the jury the execution, sheriff’s return thereon, and the deed under which he purchased and claimed. It was admitted that the widow was still living.
    No further evidence being offered by either party, the defendant’s counsel moved the court to instruct the jury,
    
      1st. That if they believed, from the evidence, that Jane Smith was the widow of Chafin Smith, and that he owned and lived upon the lands in dispute, at the time of his death, and that the same have been purchased by the defendant, under •executions against her, and that she is still living, that unless they are satisfied, from the evidence, that her dower in his lands has been assigned to her, they must find for the defendant.
    2d. That the widow of a decedent is, by law, entitled to the possession of the tract of land constituting the homestead of her husband, at the time of his death,'until her dower in his lands is assigned to her.
    3d.- That unless the jury believe, from the evidence, that the defendant was in possession, at the time of the service of the declaration in this cause, they must find for the defendant.
    4th. That the deed of the sheriff conveys only such title as Jane Smith herself could lawfully have made.
    All of which the court refused to give, and, at the request of the plaintiff’s counsel, instructed the jury, “ That if they believe, from the testimony, the defendant, either in his own person, or by another claiming under him, was in possession of the land, at the time of bringing the suit, it is sufficient proof of possession, to entitle the plaintiff to recover, so far as possession is concerned.” To all of which the defendant’s counsel excepted. The jury found for the plaintiffs, and the court rendered judgment accordingly. The defendant’s counsel then moved for a new trial; his motion was overruled, and he appealed to this court. The errors assigned are, the refusal of the court below to give the instructions asked by the defendant, and giving that asked for by the plaintiffs.
    Lansdale, for the appellant.
    The widow of a decedent is entitled to the possession of the dwelling-house, plantation, &c., in which her husband most usually dwelt, next before his death. See Howard and Hutchinson, p. 353, sec. 45.
    That the plaintiff in ejectment must recover upon the strength of his own title, and not the weakness of that of his adversary; and that the right of possession must be in him, are principles too plain, and well understood, to require either argument or reference to authority.
    It is contended, by the appellant’s counsel, that the burthen of proof, as to the assignment of dower, is cast upon the plaintiffs below. Proof that she was the widow of Chafin Smith • that he owned and lived upon the land at the time of his death, as his homestead, and that she is still alive, shows a prima facie right to possession out of the plaintiffs, that they must rebut, before they can recover.
    There is no force in the idea, that a sale of the lands, under an execution against the widow, defeats her right to possession, (as against the heirs,) altogether. Even if it be conceded, that an absolute sale by her would be void, and her whole right forfeited thereby,, yet the officer of the law cannot commit an act without her direct and special consent, that could have such effect.
    That the court erred, in refusing the third instruction asked for by the appellant, and in giving that asked by appellee, it is believed is manifest.
    Proof of possession in the defendant, at the time of the service of process, is indispensable. Here the proof is clear, that he not only was not in possession of the lands in dispute, but that another person, who claimed to own the land himself, was in the actual possession thereof, at the time the suit was commenced. See 1 Marshall, 122, and 7 Monroe, 545; those cases are conclusive of the present case.
    
      H. W. Brown, for the appellees.
    By looking into the bill of exceptions, it will be seen that the 1st, 2d, and 4th instructions, were properly refused, upon the ground that they were abstract and having no application to the' case.
    There is no evidence in the record or bill of exceptions, which shows that plaintiff in error purchased the land under execution against the widow or that he held title or possession under her. Her dower was not the subject of sale either by her, or under execution against her, before it is assigned to her. The possession of the homestead is only a privilege allowed by the statute until dower is assigned, and not a right.
    The widow and heirs are tenants in common before dower assigned, and they or either of them, are entitled to possession against a stranger. The only question worthy of consideration is in relation to the third instruction asked for by the counsel for the plaintiff in error. It is contended first by defendant in error, that when the tenant or person upon whom the declaration is served appears and confesses lease, entry, and ouster, &c. that he cannot afterwards dispute his possession, particularly when there is one defendant only. On this point, see Bull. N. P. 110, and Fen, Devisee of Blanchard v. Wood, 1 B. & P. 573; also see the reason of the consent rule discussed, and of the practice in Oles ex dem. Wigfall v. Byden, 3 Burr. 1895. It is only necessary to prove the tenant in possession when bis landlord appears and defends, because the tenant is liable for mesne profits and the judgment is conclusive evidence of occupation against him. The landlord is not allowed to confess that the tenant is in possession for that reason, but when the tenant appears himself he is bound by the consent rule and cannot dispute his possession, Fen v. Cook, 3 Camp. 512. Doe v. Alexander, 3 Camp. 316.
    But the main ground upon which the court below refused said instructions and gave the instruction asked for by plaintiff below, was that the evidence showed that one Martin was in the possession of the premises, at the time suit was brought, by a parol contract to purchase the land from the defendant, provided he (Wallis') should succeed in his title thereto, and he was therefore a mere tenant at will or at sufferance, and might be turned out of possession by a writ of possession, whether he entered on the land before or after the commencement of the suit. On this point see 5 Littell R. 185. It was left to the jury to try the fact whether or not said Martin was or was not a sub or under-tenant of defendant, and the jury found that Martin was the under-tenant of defendant.
    If the service is upon the original tenant and he appears and pleads, he cannot afterwards release himself from the action upon the ground that his under-tenant and not himself is in possession. Adams on Ejectment, 235. For the above reasons it is insisted that the judgment should be affirmed.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment, brought by the defendants in error as the heirs of their ancestor, to recover a tract of land in Holmes county. Two errors are assigned for reversing the judgment.

It is first objected that the land was the homestead or place of residence of Smith, the ancestor, at the time of his death, that he left a widow who, under the statute, is entitled to the premises until her dower is assigned to her, and that the plaintiff in error claims under the widow as the purchaser of her interest at execution sale.

At common law the widow had a right to remain in the mansion-house of her deceased husband for forty days after his death, within which time it was the duty of the heir to assign her dower. But before such assignment she could not maintain ejectment for it. Adams on Ejectment, 65. 1 Th. Coke, 601. 2 C. & P. 430. She has no vested estate for life in any particular part, until after allotment. 4 Kent, 62. The right of quarantine, or the right to remain in possession of the mansion-house, is by our statute extended, so as to enable her to retain it free from molestation and rent, until her dower is assigned. H. & H. 353. Under a similar statute in New Jersey it has been decided, that an action of ejectment will not lie against her, unless her dower had been previously assigned. Den v. Dodd, 1 Halsted, 367. This decision . is against the weight of English and American'authorities, in states in which no such statute exists; but it may be a just construction, and applicable to our own statute. But be this as it may, this right of enjoyment of the mansion-house, we regard as a mere personal privilege, one which cannot be transferred to a third person ; and that such third person claiming under her, may be put out by the heir, and driven to the remedy to recover the dower. Until assignment the widow has no estate in the lands, and her claim is a mere charge or incumbrance upon them. We think therefore, that this defence cannot be sustained. See 4 Kent, 61.

The next assignment of error is, that the court charged the jury, that if they believed, from the testimony, that the defendant either in his own person or by another claiming under him, was is possession of the land, at the time of bringing the suit,, it was sufficient proof of possession to entitle the plaintiff to recover, so far as possession was concerned.”

The evidence was that Wallis had never been in possession of the land; and that one Martin was in possession at the time of the suit brought, claiming the land for himself by virtue of a purchase from Wallis. The notice from the casual ejector was directed to and served upon Wallis; and there is nothing to show that Martin had any notice of the suit.

At common law it was necessary to prove the defendant to be in possession of the premises, and there could be no recovery without it. This is changed by a late rule of court in England, but as that can have no effect here, the proof is still requisite. Adams on Ejectment, 263, 277. 1 J. J. Marshall, 235. Peck, 189. Cooper v. Smith, 9 Ser. & Raw. 26.

The tenant in pos'session is the party who must always be served with process. If this is done and he is but a tenant, upon proof of his failure and refusal to defend, or of his consent, the landlord may be admitted to defend. If this is done, and the landlord is admitted, proof of possession by the tenant, is proof of his possession, and is sufficient. Or if he chooses, the landlord may defend in the tenant’s name. Adams 255 - 60. It would be contrary to the plainest principles of justice, to turn Martin out of possession, under a judgment against Wallis, without notice to him. Although he purchased from Wallis, he might have some other very distinct title, and he ought not to be ejected without an opportunity to defend it. Neither are we prepared to admit, that the doctrine which in this respect governs the relation of landlord and tenant, is applicable to vendor and vendee. But upon this point we need not now pass.

We think the charge, when applied to the facts in the cause, was erroneous, and calculated to mislead the jury, for there was no proof either that Wallis was in possession by himself, or by any one else for him. On the contrary the proof is, that Martin claimed to hold for himself.

There was a motion for a new trial, on the ground that the court had given Avrong instructions to the jury, which was overruled; we think it should have been sustained.

The judgment is therefore reversed and a new trial granted.  