
    
      Ursula Bullock v. Richard Griffin.
    
    Complainant instituted proceedings for arrears of dower, having already recovered her dower, under a judgment of the Court of Law. The proof was, that after the sale of her husband’s land, she, being a feme covert, took, by agreement with the purchaser, two negroes as an equivalent for her contingent claim of dower, and had retained possession of them, without setting up any further claim for seven or eight years after her discovertwe. The Cowrt held that this continued possession and silent acquiescence for so long a time, might well be construed into a recognition and renewal of the agreement, and confirmed the circuit decree refusing the application as inequitable. The Court further held, that although the claim of complainant to dower might here have encountered a defence to which it was not obnoxious in a Court of Law, yet, as she had selected her tribunal, she must be content with the-relief as administered by the rules of law.
    
      Before Dunkin, Ch. at Edgefield, June, 1845,
    whose decree sufficiently explains the case.
    Dunkin, Ch. The complainant is the widow of Richard Bullock, deceased. Her husband died at his residence in Mississippi, on the 1st January, 1836. He formerly owned a plantation in Edgefield District, on which he resided, until his removal from the State in November, 1829. On the 24th February, 1843, the complainant instituted proceedings in the Common Pleas to obtain her dower in this plantation, which had been sold by the Sheriff as the property of her husband in 1828, and was purchased by the Bank of the State ; and, in 1835, sold and conveyed by the Bank to the defendant Judgment was rendered for the demandant at July Extra Term, 1845, and her dower was set off by metes and bounds.
    On the 27th November, 1845, these proceedings were instituted for an account of the rents and the profits since the death of Richard Bullock, and for arrears ol dower in the same.
    The authority of this Court to decree an account of rents and profits in dower is not open to discussion since the decision in Keith vs. Trapier, Bail Eq. 63. It was there held that the practice of the Court in giving an account for arrears in dower and for rents and profits of real estate, depended on general principles of Equity, and were on precisely the same footing. The account, however, would be restricted to the accrual of the right, or to four years, or to the time of demand, according to the circumstances of each case.
    In Heyward vs. Cuthbert, 1 McC. R. 386, Judge Nott, adverting to the practice in the Law Court not to allow damages in dower, remarks, “ There may be cases where it would seem reasonable that a widow should recover damages for the detention of her dower, but there are few in which they ought to be considerable; because she may have her writ at any time, and the delay is not usually great.”
    And so, in Rowland vs. Best, 2 McC. R., 320, the Chancellor on the circuit says, “ It is not an uncommon case for a party, who lies by and permits another to occupy and enjoy property as his own, under an apparent good title, which he might and ought to have brought into discussion much earlier, to be restricted in his demand for an account of rents and profits, to the filing of the bill, or four years before.” The Chancellor restricted the account to four years, and, in reviewing his judgment, the Court of Appeals declared that they “ would have been better satisfied if it had been allowed only from the time of demand.” But the defence presents a state of facts which, it is insisted, afford abundant reason why the demand of dower was not made earlier, and why it should never have been made at all.
    The Hon. James A. Black was examined, by commission, on the part of the defendant. He testified that, in 1828, he was the Cashier of the Bank of the State, at Columbia — that, as the agent of the Bank, he attended the Sheriff’s sales of the property of Richard Bullock. The plantation and negroes were sold, and were purchased by the witness on the part and behalf of the Bank — that he had a conversation with Mrs. Bullock on the subject inquired of, as he thinks, after the sale of the land and negroes — that the witness advised the Bank to give Mrs. Bullock the furniture and a woman and child for her dower — that “ the Bank agreed to do so, but he does not remember whether she agreed to accept it. He cannot remember that Mrs. Bullock agreed to accept the negroes for her dower — understood that she carried away two of the negroes, which he bought for the Bank, and that she took them for her dower — she had no other claim upon them in any way.” He afterwards said, “ he was pretty well satisfied that Mrs. Bullock did carry away two negroes of the value of six hundred dollars — their names he does not know.”
    In reply to the eighth cross interrogatory, whether, if any negroes were delivered to Mrs. Bullock by direction of the Bank, it was not done through charity, the witness replied “it was to be done in lieu of her dower — it was not done through charity.” The testimony of this witness being in writing, it is not deemed necessary to extract more of it.
    
      James Griffin testified that, “he was present at the Sheriff’s sales of Richard Bullock’s negroes, and. he cried the sale— the- land had been sold previously — that Richard Bullock was entirely insolvent. All the negroes returned to the plantation. About a month afterwards, Bullock and his wife removed to the West' — they took Silvia and Chima with them —the other negroes were left on the plantation. Witness was on the road with them in Georgia. The two negroes were worth six hundred and fifty dollars. The complainant is very old, between 70 and 80.”
    
      Mrs. Penn proved “ that, some years since, she had passed some months in Mississippi, and visited frequently at Mrs. Bullock’s — her husband had been dead about two years — she had some negroes. She and her son lived together — she had two negroes which she called hers, named Silvia and Chima —don’t know if she called them lrer’s. She and her son Richard lived, together, he was about thirty-five years of age. Silvia was the mother of Chima — Silvia was about thirty years old — Chima about sixteen.”
    In the trial at Law the testimony of Mr. Black was relied on to bar the claim of dower. But it is quite clear that, at Law, the complainant could not be precluded on this evidence.
    The Statute prescribes the mode in which dower shall be renounced; and, at the utmost, the transaction amounted only to an agreement to release dower. Whether such contract could be specifically enforced when made with a feme covert, it is not now necessary to determine. But the Bank have assigned to the defendant all their right, title and interest to the negroes, Silvia and Chima; and the defendant insists that it is inequitable for the complainant to retain the negroes and, at the same time, prosecute her demand for arrears of dower.
    The testimony of James A. Black and James Griffin, taken together, leave no doubt that the negroes Silvia and Chima were sold as the property of Richard,Bullock, and were purchased by the Bank — that they were of about the value of six hundred dollars.
    It seems scarcely more doubtful that a negotiation or conversation took place between James A. Black and the complainant, in relation to her contingent claim of dower, in which Mr. Black proposed to let her take a woman and child for her claim — he does not remember whether she acceded to the proposal, nor does he remember the name of the woman and child. But James Griffin proves that a month afterwards, they removed to the West, taking with them Silvia and Chi-ma, two of the negroes purchased by the Bank, and leaving the rest on the plantation. And Mrs. Penn proves that, two years subsequent to R. Bullock’s death, she was frequently at the house of the complainant, in' Mississippi, and she was then in possession of these same negroes. Mr. Black says she had no other claim to the negroes which she carried away, but in consideration of her dower. When Mrs. Bullock left Carolina, the son, who now lives with her, was a man grown. After what Mr. Black has testified, it cannot be questioned that her right to dower in her husband’s plantation was well known to her and admitted by the purchaser.
    Unless the complainant had been satisfied with what had been done, it is difficult to account for her acquiescence from January, 1836, until February, 1843, when she instituted her suit in the Common Pleas. Her right was clear, and, as is said by Judge Nott, her remedy plain and easy. But, on the trial of the case at Law in July, 1845, this defence was known to the complainant, viz : that she had taken away these negroes belonging to the Bank, in consideration of her abandonment of any claim of dower. This was fourteen months prior to the hearing in this Court.
    The original right of the Bank to the negroes was established, ana the subsequent possession and appropriation of the negroes by the complainant, alleged to be under the agreement. If the complainant had any other right to the negroes, she had the opportunity of making the proof. The only suggestion of any other claim was that implied in the cross interrogatory propounded to Mr. Black, whether the negroes were not a donation from the Bank to the complainant, and which was conclusively rebutted by the reply of the witness.
    Upon the whole of the testimony the Court is well satisfied that this is a case in which the complainant’s account for rents and profits would be restricted to the filing of the bill. But the bill was not filed until the complainant was in actual possession, or might have been in possession, under the judgment of the Court of Common Pleas then already rendered, and it may possibly have been deferred from the diffidence of the complainant in making an original application for her dower and arrears of dower to this tribunal.
    It is ordered and decreed, that the bill be dismissed.
    The plaintiff moved the Court of Appeals to reverse the Circuit decree, upon the following grounds :
    1. That there was no sufficient evidence of any actual agreement of the plaintiff to sell or renounce her dower.
    
      2. That if such agreement was made by the plaintiff, it was not obligatory, because of her coverture; because by no act or declaration since discoverture has she affirmed the same ; and because the slaves, .the consideration of the alleged agreement, were never delivered or settled upon or otherwise secured to her.
    3. That in suits for dower, Equity universally gives an account of mesne profits from the death of the husband — and the mere delay of the plaintiff in asserting her claim furnished no ground to restrict such account to the filing of the bill.
    4. That the right to mesne profits is the inseparable incident of dower, is as clearly and purely a legal right, and after a recovery at law, cannot be resisted by a defence merely equitable, especially where such defence would be no bar to an original application to this Court for assignment of dower.
    5. That there was no valid assignment to the defendant by the Bank of its claim to the slaves'Silvia and Chima, and that even if valid, the claim is long since barred by the Statute of Limitations, and were it now of force, could only be asserted against the legal representative of Richard Bullock.
    6. That in any event the plaintiff was entitled to an account of mesne profits from the commencement of her action at Law, and in no event is she chargeable with more than a third part of the value of the slaves alleged to have been delivered to her, in satisfaction of her dower.
    
      
      7. That no one of the grounds upon which the Circuit decree is founded, presents any lawful bar to the plaintiff’s claim to an account of the mesne profits from the accrual of her right to her recovery at Law.
    8. That the evidence of the alleged agreement of the plaintiff to renounce her dower, is too dubious and uncertain to warrant the rejection of a claim so highly favored by the law as the right of dower.
    Carroll, for the motion.
   Dunkin, Ch.

delivered the opinion of the Court.

The testimony of the witnesses leaves no reasonable doubt that the negroes were retained and were carried away as an equivalent or consideration for the complainant’s contingent claim of dower. Although this Court might not be warranted in enforcing such agreement when made by a feme covert, her silent acquiescence for seven or eight years after her discoverture, and keeping possession of the consideration, might well be construed into a recognition and renewal of the agreement. But the complainant has resorted to a Court of Law, where this defence could not be noticed, and has recovered her dower, and her application to this Court is now for the intermediate profits since the death of her husband. According to the testimony, the claim is inequitable, and the Court is satisfied with the decree.

But we are also of opinion that, in appealing to the Court of Law, the complainant selected her tribunal, and must be content with the relief as administered by the rules of law. By the well established principles and usages of this Court, she might have instituted proceedings in the Court of Equity both for dower and arrears of dower. It is trae that her claim might here have encountered a defence to which it was not obnoxious in the ordinary tribunal. She has selected the mode, and must abide by the measure, of redress. It cannot be conceived that in Heyward vs. Cuthbert, the demandant would have been entitled to a bill in Equity after the refusal of the Court of Law to recognise her claim for arrears in dower. The absence of any precedent for such proceedings is an argument against its introduction. It concerns the interests of the country that there should be an end of litigation.

The decree is affirmed and the appeal dismissed.

Johnson, Ch. and Johnston, Ch. concurred.

Harper, Ch. absent from indisposition.  