
    The Farmers and Merchants Bank of Memphis, vs. E. S. Tappan et uxor.
    A bill of review cannot be filed in the probate court j that proceeding is admissible in courts of chancery only.
    Where the probate court has upon petition allotted dower to the widow of the decedent, that allotment operates only on the parties to the proceeding in the probate court, and does not reach the paramount title.
    An order allotting dower at the instance of the widow, made without notice, is void, and is no bar to the rights of any one.
    Where an order has been made by the probate court allotting dower, those claiming a title to the land, paramount to that of the dowress, may contest her right in any court having jurisdiction.
    On appeal, from the probate court of Yalabusha county.
    The Farmers and Merchants Bank of Memphis, Tennessee, and George W. Smith, filed a bill of review to the August Term, 1844, of the probate court of Yalabusha county, for the purpose of reviewing the decree of that court made upon the petition of Edmund S. Tappan and Sarah E. Tappan his wife, at the March term, A. D. 1844, allotting to them dower in certain lands alleged to have been owned by Andrew R. Govan, deceased ; the dower allotted to Tappan and wife being that of Mrs. Govan, his widow, who it was alleged in the petition of Tappan and wife, had by deed assigned her dower to them.
    The statements of the bill of review are, in substance, so far as deemed material, as follow:
    On the 8th day of April, 1840,.the Farmers and Merchants Bank of Memphis conveyed to Andrew R. Govan, a large number of negroes, and about 2,000 acres of land, described in the record. The deed recites a consideration of ¡$30,000, in the shape of promissory notes, executed by Govan to the bank. On the same day, and as a part of the same transaction, mentioned in the first deed, Govan executed a deed of trust, conveying the same, together with some additional property, to George W. Smith, as trustee, for the purpose of securing the purchase-money for the first conveyance, and also an additional sum due by Govan to the bank, amounting, in all, to $56,700. This deed was duly recorded, but Mrs. Govan did not sign it, or relinquish .her right of dower; Govan conveyed the same property, subject to this deed of trust, for the benefit •of the bank, to a Miss Pugh, who again reconveyed it to him, upon certain trusts, but as these deeds have no connection with this controversy, they need not be noticed. Dower was never assigned to Mrs. Govan ; but on the 9th day of March, 1842, after the death of her husband, she attempted to assign and release her right of dower, in the land conveyed by the bank to Govan, to Sarah E. Tappan, a ferns covert, wife of E. S. Tap-pan. At the March term of the probate court ,of Yalabusha county, Mrs. Tappan and her husband filed their petition, to have the dower interest of Mrs. Govan in these lands allotted to Mrs. Tappan, and to have Mrs. Tappan put in possession ; that neither the bank, or the trustee under the deed of trust by Govan to the bank, or the administrator of Govan, were made parties to this petition, or had notice of the proceeding; that on the same day of filing the petition, the court set off a third part of the land to Mrs. Tappan, as the dower interest of Mrs. Govan. A writ of dower was awarded to Mrs. Tappan, returned executed the next day after filing the petition; the commissioners reported, and Mrs. Tappan was put into possession under the writ. The prayer of the bill of review was, that the decree of the probate court, allotting the dower, might be reviewed, and it made Mrs. Govan, and Mr. and Mrs. Tappan, parties.
    The defendants appeared and answered. Mrs. Govan, in her answer, admitted that the conveyance of the land in controversy from the bank- to Govan, and the conveyance, of Govan to Smith, as trustee, was one entire contract and transaction ; and that the deed of trust to Smith was made to secure the purchase-money, for the land in controversy, to the bank.
    Tappan and wife answered at length, and insisted that the deed of trust, executed by Govan, showed upon its face that it. was not executed as part of the same transaction with the deed from the bank to Govan ; the sum to be secured, and the property conveyed being, in both, different ; they neither admit or deny the want of notice to the complainants.
    At the November term, 1844, of the probate court, the cause came on for hearing, and the judge dismissed the bill of review ; from which judgment the complainants therein appealed.
    
      B. D. Howard, for appellants.
    I. It is apparent, upon the face of these deeds, that the deed from the bank to Govan, and his deed of trust back to the bank, are but parts of one contract. They are dated at the same time, attested by the same witnesses, between the same parties; and the deed of trust conveys the same land which was conveyed by the bank to Govan, with two additional sections. (The widow’s claim to dower in this controversy only extends to the land conveyed by the bank to Govan.) With all these indicia that the two deeds embodied but one contract, the courts have said that prima facie they would presume them to be so, and construe both deeds together. They look upon all these “ ear-marks ” as constituting but one contract, as an implied reference by the one deed to. the other, so connected with it. 3 Phil, on Ev. and Notes, 1420, 1421, 1422, and the numerous authorities there cited ; 5 Pick. 595; 14 Mass. 351. That two additional sections of land were conveyed in the deed of trust does not alter the rule, or prevent its applicability to this case. We only ask for its application, as to the land conveyed by the bank to Govan, and. as to that land, the subject-matter of the two conveyances axe the same; and the conveyances are simultaneous. The language and spirit of the rule apply then, to its fullest extent.
    II. But if this implied reference of the one deed to the other, does not sufficiently show the nature of the transaction between the parties, we can show it by parol upon the plainest principles.
    1. Were these two deeds executed at the same time, and as parts of one contract ? This inquiry does not propose to vary, add to, or construe the language of either deed. It involves an inquiry in relation to the res gesta of the contract, and, as such, may always be shown by parol evidence. 3 Phil, on Ev. 1388, and numerous authorities there cited.
    2. In relation to the consideration, we only ask to show from whence the consideration flowed, which is stated in the deed— not to vary, add to, or alter it, in any manner whatever. The consideration clause of a deed is now regarded as merely formal, and may always be explained by parol evidence when the explanation does not contradict the deed. Gannett v. Stewart, 1 McCord, 514; 8 Conn. 304; 7 Serg. & Rawle, 310, 311; 17 Mass. 257; 14 Johns. 211; Haywoodv. Perrine, 10 Pick. 228 ; 5 Stew. & Port. 421.
    3. “ Parol evidence is admissible to explain and apply the writing, but not to add to it, or vary its terms,'” is the universal doctrine of the books. 3 Phil, on Ev. 1467; lb. 1408, 1409, 1399.
    By the principles referred to in these authorities, we ask to have this contract construed. In the language of Mr. Wigram, we ask this court, “ by means of extrinsic evidence, to place itself in the situation of the parties to these deeds, whose language it is called upon to construe.” We do not ask to vary, contradict, or add to the terms of the deed, or to extend the estate it grants. We only ask to show, that of the $ 57,000, expressed in the trust deed, $ 30,000 of it, was a debt due by Govan to the bank, for the purchase-money of this same land, which Govan immediately reconveyed (as the deed shows) to the bank, to secure its payment. This does not violate the statute of frauds, because we do not propose to prove a conveyance by parol evidence. The deed is all-sufficient to convey. Neither does it violate the rule, that you shall not vary, &c. a written instrument. The explanation is perfectly consistent with the consideration expressed in the deed. The purpose of the explanation we propose, is therefore perfectly without the doctrine of parol evidence under the statute of frauds, and independent and without the rule that you cannot contradict a written instrument, or prove intention by parol evidence.
    
      We have proved the two deeds to have been executed at the same time, that they were one transaction, and both deeds but one'contract, by the answer of Mrs. Govan. Her answer is good evidence against Mrs. Tappan, because she claims title through Mrs. Govan. 6 How. 487 ; 6 Cranch, 8; 9 Wheat. 738.
    4. The sale of the bank to Govan, when at the same time, as a part of the contract of sale, Govan reconveyed the same property to a trustee to secure the purchase-money, did not give him such a seisin as entitled his wife to dower. 4 Mass. R. 587; 14 lb. 351; 15 Johns. 463; 2 How. 696 ; 3 lb. 369.
    5. Mrs. Govan had a dower right in the land ; it was only a right of action before dower was allotted, and her assignment to Mrs. Tappan was void. Jackson v. Aspell, 20 Johns. 411; Cox v. Jagger, 2 Cow. R. 651. This point is too plain t.o require authorities.
    As to the right of a bill of review, and its regularity in this controversy, see How. & Hutch. Dig. 472.
    
      W. Thompson, for appellants.
    1st. In the present litigation the trustee, Smith, was properly a party with the cestui que trust, the bank,, and e converso. Story’s Eq. PL 341, § 427.
    2d. A petition, or bill, for review, will properly lie in the probate court. See the case of Hamberlin et al. v. Terry, Executor, et al., and the numerous cases cited by the chancellor. S. & M.-Ch. R. 589.
    On the subject of dower the probate court have, by the constitution, exclusive original jurisdiction ; and the legislature, in such cases, could not confer it on another tribunal. Carmichael v. Browder, 3 How. R. 252. Blanton v. King, 2 How. R. 856. Griffith’s Administrator v. Vertner and Wife, 5 How. R. 736. 3 How. R. 205.
    3d. 'On the petition, or bill of review, the probate court should have rescinded their former order, allotting dower to Mrs. Tappan; asvit is clear beyond controversy, that dower being only a right in action, Mrs. Govan could not assign her claim to dower to Mrs. Tappan, so as to give Mrs. Tappan the right to sue for it in her own name.
    4th. From the answer of Mrs. Govan to the petition of review, it clearly appears that this is a case in which Mrs. Govan herself would not be entitled to dower, and Mrs. Govan’s answer is evidence against Tappan and wife. Stamps v. Fitch et al., 6 How. R. 487. Osborn v. United States Bank, 9 Wheat. R. 738.
    5th. The whole case being now before this court, by appeal, if the petition for revision could not be entertained by the probate court, still, for the error apparent in the original order, this court would reverse the order of the probate court.
    6th. The appellants being interested in the action of the probate court, have a right to the appeal from the first, as well as the last order. See 1 Bibb’s R. 293. Barr & Yeider v. Stevens, 1 J. J. Marshall, 220, 221. Flournoy v. Smith, 3 How. R. 62.
    7th. Where the husband is seized only as trustee, or as Govan was in the conveyance from the bank, the wife would not be entitled to dower. The law is acknowledged to be so (upon the above facts) in Massachusetts and New York. See also Whitehead v. Middleton, 2 How. R. 692.
    8th. If not properly a petition, or bill of review, the proceeding of the bank would be good, as an original petition or bill, as they were not partiés in the first action at the probate court. See Story’s Eq. PL 340, § 416.
    9th. Even if it be that this court will presume notice was given, on the application for dower, to those upon whom the law requires it to be served ; we reply, the answer of Mrs. Govan shows notice was not served.
    
      A. C. Leigh, on the same side.
    The first, question which arises is this : admitting for a moment that Mrs. Govan was entitled to dower in the lands in controversy, could she, before assignment to herself, by the proper court, transfer and assign her interest, so as to give another person a right to institute proceedings for such dower 1 
      She possessed only a right of action ; the lands themselves devolve immediately upon the heir, upon the death of the ancestor, the widow’s right only consisting in action, until allotment. Under the common law a bond could not be assigned, so as. to vest a right of action, nor could it be done now, unless by statutory enactment. Now if no statute gives the widow a right to transfer her dower interest, as long as it is a mere right in action, can she do so ? See Jackson v. Aspell, 20 Johns. R. 411. Cox v. Jagger, 2 Cow. 651.
    But the main question is can the two deeds, that is the deed of trust and deed, be connected together by parol testimony, so as to show that the purchase-money is secured in the deed of trust, and that such was the intention of the parties, without infringing upon that general rule of law, which says, that “ parol testimony shall not be admitted to alter, add to, diminish, or substantially vary, the legal import of a written agreement? ”
    In order to show that such testimony is frequently admitted, 1 will refer the court to 3 Term R. 474. 4 Hen. & Mun. 121. 2 Call, 152. 1 McCord, 514. 5 Porter’s R. 507. 5 Stew. & Port. 421. 1 Phil. Ev. 529. Ib. 153. 2 Stark. Ev. 547. 14 Mass. R. 351.
    If such proof will be allowed, then the answer of Mrs. Govan, a co-defendant, will be conclusive upon this point. She it is through whom Mrs. Tappan claims, and to whose rights she claims to be substituted. The answer of a defendant will bind a co-defendant, when the latter claims to be substituted to the rights of the former. See 6 How. 487. Field et al. v. Holland et al. 6 Cranch, 8. 9 Wheat. 738.
    The deed and deed of trust were executed at the same time ; now, under these circumstances, is the widow of A. R. Govan entitled to dower ? This question has been decided against the claim of dower, in 4 Mass. R. 587. 14 Ib. 351. 15 Johns. 463. The doctrine has likewise been incidentally recognized by Chief Justice Sharkey, in Whitehead v. Middleton, 2 How. 696. But in 3 How. 368, 369, Justice Trotter intimated some doubt upon the subject.
    
      In the case of Stoughton v. Randall, referred to by Chief Justice Trotter, Cro. Eliz. 502, 503, where father and son being joint tenants, were hanged, and the son survived the father for a few moments, his widow was considered entitled to dower. The doctrine there laid down is undoubtedly correct, because the estate descended upon the son, in the regular course of descent; and though there may have been, physically, a want of power in the son to dispose of the estate, or to exercise any act of ownership, yet he was, legally speaking, absolutely seized for his own benefit, unencumbered by any previous contract, which would destroy the beneficial seisin in himself.
    But the case before the court presents a very different aspect. Tt is true that if we regard the constituent elements of the contract as complete, each within itself, then as soon as the conveyance is made to Govan by the bank, he is seized beneficially, and his wife is not only entitled to dower, but we conceive that the lien of a previous judgment creditor would also attach. But the separate parts of the contract, that is the deed to Govan, placing the title in him, and the trust deed by him, together constitute an entirety. When the title passes into Govan, it is fora particular purpose; not that he may make what disposition of the land he chooses, not that it be used for his own benefit, but that he shall so dispose of it, as to result in a benefit to the bank. The seisin goes into him for that purpose, and the contract is not complete until such seisin passes out of him. Then he never was seized to his own benefit, because when the title comes to him, it brings along with it an obligation to pass it from him, for the benefit of the other party to the contract. If the wife be entitled to dower in the present case, it can only be by viewing each of the deeds, as a complete contract within itself; for if we view them as an entirety we shall find, at the completion of the contract, the title is vested in George W. Smith, for the benefit of the bank. The title comes in and goes out, uno Jlatu ; it does not abide in him, but passes through him, as a mere conduit for the benefit of the vendor. Surely the lien of the bank is paramount to that of a previous judgment creditor ; and yet if Govan possessed an absolute seisin, a fee simple right and title to the lands, we conceive that the judgment lien would accrue. The principle involved in' the present case is referred to, and incidentally sustained adversely to the claim of dower, in Virginia. See Moore v. Gilliom, 5 Mun. 346. 1 Gilmer, 200. See 1 Tucker’s Com. 60, Tit. Dower.
    The fact that, at the time of filing the bill of review, the property had not been sold under the trust deed, it being only advertised for sale, we conceive, cannot alter the principle at all; because we contend that the deed and trust deed, being but parts of the same contract, the husband never did possess such a seisin as would entitle the wife to dower.
    
      W. G. Thompson, on same side.
    Admitting, for argument, that Mrs. Govan had a dower right in the land, it is contended that that is no such interest as could be assigned, so as to enable Mrs. Tappan, the assignee, to maintain an action in her own name. Mrs Govan had, at most, but a right resting in action, and not in possession. She had no vested estate in the land. Park on Dower, 9 Law Library,- 334. 1 Cruise’s Dig. 169, § 2. Gilbert’s Tenures, 26. 17 Johns. R. 167. 20 lb. 411. 10 Wend. R. 414. 13 lb. 524. Here is an error in law, apparent on the face of the decree, for which a bill of review will lie. Story’s Eq. PI. ed. of 1840, § 404. Whiting v. Bank of United States, 13 Pet. R. ■ 6, 13, 14. The bill of review, in this case, is properly framed, and by and against the proper parties. Story’s Eq. PI. § 409 — 420. In a proceeding, by petition, for dower, all persons in interest are considered to be before the court, the directions of the statute being complied with, without actual personal notice. .The appellants unquestionably were directly interested in the proceeding in this case.
    
      George S. Yerger, for appellees.
    1. The first question which arises, is whether a bill or petition of review will lie in the probate court. There is no decision on this point. It is alluded to, but not decided, in the case of Planters Bank v. Neeley, 7 How. R. 94.
    
      The power to review and reverse its own decrees, is a part of the peculiar jurisdiction of a court of chancery. Whether this jurisdiction pertains to, or can he exercised, depends upon the power conferred on the probate court by the constitution, and by the acts of the legislature.
    1st. The constitution says : “ It shall have jurisdiction in all matters testamentary, and of administration in orphans’ business, and the allotment of dower in cases of idiocy, and lunacy, and persons non compos mentis.”
    The constitution gives it original jurisdiction in these matters, but it does not give it the right or power, to reverse or revise its own decrees or judgments. I do not find, in the practice of the ecclesiastical courts in England, that such a proceeding, as reviewing their ow'n decrees, by petition or otherwise, exists. An appeal is the only remedy known in these courts, for alleged error in their proceedings.
    There is no act of assembly giving it. The only act in regard to bills of review, confines it to decrees in chancery. H. & H. 571. '
    It has frequently been said by the judges of this court, an appeal, or writ of error is the only remedy given by law, to reexamine the decrees of the probate court. Sharkey, Oh. J. says: “ The court which passed on these accounts, undoubtedly had jurisdiction, and if it exercise it, by a final adjudication, its judgment must be conclusive. The parties interested were entitled to an appeal, and that is the only mode by which the errors can be corrected.” 5 How. 739.
    Again he says: Parties aggrieved by the judgments of the probate courts, may appeal, or a writ of error lies, &c. But if these courts may at any time open and reverse their own judgments, litigation would be endless. 2 S. &. M. 339.
    On principle it would seem that it does not lie.
    If the legislature create a court, its judgments are conclusive, and bind forever, unless an appeal or some other mode to reverse them is pointed out in the statute, as commissioners’ courts, &c.
    The probate court is the creature of statutory enactment, so far as remedies to correct its decrees are given. All its powers are dependent npon the constitution, and laws passed in pursuance of it. It is the creature of positive law, and exercises no jurisdiction but what is given it. If it has not, either by statute or the constitution, the power to revise and reverse its own decrees, the power does not exist.
    If no appeal or writ of error is allowed by statute, its decrees are forever conclusive. Doker v. Hudson, 8 Cow. R. 221; Atkins v. Kinnan, 20 Wend. 241; 4 lb. 431 ; 12 lb. 533.
    2d. But if a bill of review does lie, still it is conceived there was no error in the decree below.
    It is averred, in the bill, that complainants had no notice. This fact is neither admitted nor denied in the answer. The complainants do not exhibit or set forth the record of the proceedings in the probate court, and upon these mere allegations, without proof.\ by producing the record, ask this court to set aside the decree of the probate court.
    The jurisdiction of the probate court, in cases of dower, extends to cases against strangers claiming title or an interest, as well as against heirs. Randolph v. Doss, 3 How. 205.
    This court will presume the probate court did its duty, and that the complainants were notified by publication, which is a constructive notice. Randolph v. Doss, 3 How. 205.
    In the case of Smith v. Denson, 2 S. & M. 327, it was expressly decided, that where the petition stated there was no citation or notice, and the answer did not admit the allegation, and the record was not filed by the plaintiff, that the court in such case will presume the probate court did its duty; and it is there expressly decided, that he who asserts the court had no jurisdiction for want of notice, must produce the record. See page 338.
    3d. But, from complainant’s own showing, is it entitled to any relief against the decree 7 Complainant alleges that the land of which the defendant was endowed, was sold by complainant, and a deed of trust immediately executed by Govan, to secure the purchase-money; that the deeds are both dated same day, and were one transaction, and that consequently there was no such seisin in the husband as gave the wife a right to dower.
    In New York and Massachusetts, the decisions are, that in such case, the wife is not entitled to dower. In this state, these decision's are questioned, and it is questionable whether they can be sustained on principle.
    The rule of the common law is, that a seisin, though for a moment of time, vests the right of dower, the exception to the rule is, where the seisin is but for a transitory instant, that is to say, when the same act which gives the estate, conveys it also out of him. Park on Dower, 43.
    The dissenting opinion of Thompson, Ch. J. in Stow v. Teft, 15 Johns. R. 465, shows clearly, what the law is.
    The case of Nash v. Preston, Oro. Car. 190, is directly in point. And the inclination of the courts in Mississippi, is to follow the rale of the common law, as understood by Thompson, Ch. J. See Wooldridge v. Wilkins, 3 How. 367, 368.
    The reasoning of the court in the latter case, and that of Thompson, Ch. J., it is believed, is more sound than that in which opposite decisions rest.
    But be this as it may, we conceive this case is not governed by those in New York and Massachusetts. Here the deeds on their face show different transactions, although the deed and mortgage are dated the same day. Yet the mortgage is made to secure a debt of $57,000. The deed to Govan shows the consideration or purchase money was $30,000. It is evident, therefore, that the conveyance to Govan, was in fee, and vested in him the seisin and title; and he afterwards, but on the same day, agreed to execute the mortgage, not for the consideration money alone, but for a much larger debt. And also the mortgage embraces lands not conveyed by the deed. The husband was not a mere conduit pipe. By the bargain and sale to him, without entry, his wife, upon the delivery of that deed to him, was vested with a right to dower.
    “ In conveyances under the statute of uses, the bargainer is seized in law immediately on the delivery of the deed, and his wife is dowable, although no entry is made.” Park on Dower, 34, 35.
    
      4th. But the record, in this case, does not show that the deed of trust was foreclosed. In such case, and before foreclosure, let the above rule he as it may, it is settled the wife is entitled. Wooldridge v. Wilkins, 3 How. 360, and cases cited.
    5th. And I may here also remark, that a bill of review will not lie for want of service of process, or notice ; it is for error on the judgment of the court.
    
      Charles, Scott, on the same side.
    
      Waid, on the same side.
    The preliminary question to decide in this case, before examining the errors assigned, would be, whether if there was error in the court below, by failure of notice to the parties entitled, or for the various causes assigned, the appellants, have taken the-proper course by bill of review.
    Whether a bill of review can be successfully prosecuted before the probate court in any case, and if so, is the present a proper occasion for its exercise 1
    But should we admit that the hill of review was well brought, and that the probate court has not only the jurisdiction expressly conferred upon it, by the constitution and the laws of the state, but also the extraordinary powers conferred upon a court of chancery, with all the disastrous, results that must arise with so enlarged a discretion, yet there is no error in the present case presented.
    The first error complained of is, the want of notice to the appellants. The statute does not require it, nor is it necessary. The widow has a direct, immediate, and absolute life estate in all lands conveyed by her husband, of which he was seized, and which in his lifetime she failed or refused to convey. The method of allotting the dower is directed by statute, and notice even to the life tenants is not required. In this case the statute was strictly complied with. How. & Hutch. 351, sec. 41.
    Of what avail could notice be 1 The parties who have taken a conveyance from the husband are estopped from denying his seisin. 1 Am. Dig. 120, § 1. 1 Caines’s R. 185. And the allotment was made by commissioners appointed by the court, and they do not pretend there was unfairness or inequality in the allotment.
    The second alleged error is, that the assignment of dower by the widow of Govan is void.
    The appellants are not the parties to take advantage of it, though it were true, and Mrs. Govan would be forever precluded from asserting her right of dower against them, being estopped by her deed.
    Mrs. Govan certainly would have as much right to convey her interest, as would a tenant in common before partition. Her right to convey is recognized in the statute. That authorizes to convey her right of dower, before it has accrued by the death of her husband ; and the forms necessary, and the examination required, are personal privileges, to prevent the undue influence of her husband. Where that influence has passed, it leaves her right as before, perfect and absolute. How. & Hutch.
    3. The point on which this case must ultimately turn is, that Mrs. Govan had no right of dower in the premises, and could convey none ; and the ground taken is, that there was a transitory seisin.
    What constitutes transitory seisin, and the right of dower therein, has been greatly mooted, and a somewhat vexed question in the United States, although in England the rule, from the cases lately decided, point in one direction, and tend to the conclusion that there is no such thing; but that although the estate passes but for an instant, the seisin becomes absolute.
    This point has received a direct adjudication by this court, in the case of Wooldridge v. Wilkins, 3 How. 368. And although it was not absolutely necessary to decide the point in that case, yet to render the decisions of the court uniform, and to give permanency to the laws of property, the court will not slightly reverse its opinions.
    Considering it as a case of first impression in this court, several of the ingredients necessary to bring it -within the rule, are wanting.
    Indeed, at best, it is but a refinement of that principle of equity that gives a lien for the purchase-money ; and no case can be produced that would debar the wifé of dower, where the mortgage was for any other consideration than the purchase-money. In the present case the purchase and price of the land, as shown by the deed of the bank, were $30,000 ; while the consideration expressed in the trust deed was for $56,700, showing clearly a different consideration. And the bank cannot be permitted to show the consideration the same, contrary to the expressed condition of the deed; for they are estopped from denying the provisions of the deed of sale and deed of trust. Crane v. Lessees of Ment tf Astin, 2 Stark, on Ev. 17. 6 Pet. 611, 612. 2 Black. 295. 2 Lomax, 203. 2 Barn. & Ad. 278. 2 Humph. 72. 3 Phil. Ev. 1238-6-7.
    A material variation and a waiver of the right of appellants, if they had any, is conveyed in that portion of the deed which gives Govan the right of substituting any other lands, in lieu of those conveyed in the trust deed ; and there are two sections in the trust deed not purchased from the bank, or incorporated in the deed from the bank.
    This evidently shows that the deed of trust was another transaction, and presents this strange anomaly, that the widow of Govan is entitled to dower in two sections, and not in the remainder, when the only claim brought forward to defeat her is the same conveyance, the .same admissions of seisin. ,
    That the bank, by taking a deed from Govan, admitted a perfect seisin in part of the land, but a defective seisin in the remainder ; the entanglement consequent upon such a decision is avoided, by following in the precedents that decide that the deeds must be executed uno flatu, at the same instant, and for the same consideration.
    The widow would be entitled to dower at all events, until a sale is made by the trustee, as the bank has no right to the land, but to the proceeds ; and Govan is the beneficiary until a sale, and she can take, subject to the deed. Whitehead v. Middleton, 2 How. 697.
    
      A. C. Baine, on the same side.
    Whether there be notice or not, the judgment of the court does not affect the bank, one way or the other. Its rights are the same as before the judgment. It can bring an action of ejectment, and if entitled to the land at the time of the judgment, it is still entitled to recover, and the judgment will not preclude them. Then for what end will they be permitted to sustain this bill of review ? What is to be accomplished by it ? The decision of this court must settle some right; it cannot be invoked to settle a naked abstraction. Now grant that neither Mrs. Govan nor Mrs. Tappan are entitled to dower, what difference does it make to the petitioner ? The assignment of dower precludes no right of adverse claims ; but ejectment may still be maintained by the true owner. If this proceeding be proper, where is it, or similar proceedings, to terminate % If there be forty claims adverse to the dowress, they may, seriatim, file their bills of review, and the litigation thus become interminable, and the object of courts (final settlement of rights) be practically defeated.
    Dower cannot be assigned so as to enable the assignee to maintain ejectment; because, first, there is nothing specific to recover; secondly, because where there is an adverse possession, there can be no assignment.
    But there is a wide difference between a mere petition for a partition, and an action of ejectment. Because the execution of a partition settles no right of property, or right of possession, but merely defines boundaries. That is all that is settled by the execution of a partition; the right to the dower is not concluded or affected by it, neither is it established by it.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill of review filed in the probate court of Yala-bnsha county, to review and set aside an order which had been made at a previous term, allotting dower to the wife of Tappan. Various errors are pointed out in the proceedings, but it is not necessary to consider any of them, because the case will be decided upon a different principle.

It has already been determined by this court, that a bill of review cannot be filed ih the probate court; that proceeding is admissible in courts of chancery only. Harris el al. v. Brown's Adm’rs. The decree of the probate court, dismissing the bill of review, must therefore be affirmed.

But the rights of the appellant, whatever they may be, are in no manner affected by the allotment of dower. That order ope-' rates only on the parties to the proceeding, and does not reach a paramount title. Randolph v. Doss & Wife, 3 How. 215. The principle is very plainly stated in New York, in the case of Martha Wilkins, 9 Johns. 246. It is there said, “the proceedings are founded on the assumption, that the widow is entitled to her dower out of the estate in question, and that it is only to be designated and set off. There is no provision for trying the title to dower before the surrogate; and the admeasurement made in pursuance of his order cannot affect or prejudice the right to dower, or the legal or equitable bar to it. These rights, if litigated, remain open for investigation in the ordinary course of justice. If the right to dower be denied, the party may protect his possession, notwithstanding the admeasurement, and drive her to her action at law.” Jackson v. Randall, 5 Cow. 168. Without adopting all that is here said, it results that if the plaintiffs in error claim a title to the land, paramount to that of Mrs. Tappan, they may contest it in any court having jurisdiction.

Apart from the general doctrine above laid down, it does not appear from the record that auy notice of the proceedings was given by Tappan and wife, or that there were any parties to it. As the proceedings upon the original petition, prior to the order of the court, were not necessarily set out in the transcript relative to the bill of review, this may have been done, and may have been omitted in this record. But if it were not done, the order allotting dower would be of ho validity, and no bar to the assertion of right on the part of any one. It -would he like all other judgments without notice, void.

The order of the probate court, dismissing the bill of review, will be affirmed, without prejudice to any rights, legal or equitable, of the banks.  