
    Throp v. Johnson and Wife.
    A plea to a petition for the assignment of dower, alleged that the dower of the widow was barred by a decree of the Decatur Circuit Court theretofore rendered, &c., but made no further mention of the decree. Held, that the plea was bad for not setting out the decree.
    Where land is devised upon a condition subsequent, the non-performance of the condition authorizes the heirs of the devisor to enter upon the land, and thus destroy the devise; but, until the entry, those holding under the devisee are entitled to the land.
    To a jmtition for the assignment of dower by the widow of a devisee of land devised upon a condition subsequent, a plea alleging as a defense the non-performance of the condition, but not showing that the defendant is an heir of the devisor, is bad.
    Upon the hearing of a petition for the assignment of dower, the right of the petitioner to dower was established, and the Court having appointed commissioners to make an assignment thereof, instructed them to assign the same according to the value of the land at the time of the assignment, exclusive of the improvements made after the husband’s alienation. Held, that the defendant, being the grantee of the husband, could not complain of the instruction.
    An instruction to commissioners appointed to assign dower, to assign the same by metes and bounds, will be presumed to be right where the record does not contain the evidence.
    
      Thursday, May 27
    
    ERROR to the Decatur Circuit Court.
   Blackford, J.

Isaac M. Johnson and Kezia, his wife, filed a petition in the Decatur Circuit Court. The object of the petition was to obtain dower in certain real estate, on the ground that one Samuel D. Henry died seized of the estate in fee, leaving said Kezia his widow. The petition alleges, inter alia, that said Johnson has married said Kezia, and that Throp, the defendant, has the legal title to said estate, by virtue of a decree in chancery.

The defendant pleaded three pleas.

First — That said Henry did not die seized of said estate in fee as alleged.

Secondly — That the dower of said Kezia was barred by a decree of the Decatur Circuit Court theretofore rendered of and concerning said land, wherein said Throp was complainant, and said Johnson and wife were defendants.

The following is the third plea: That said land was held by said Samuel D. Henry, at the time of his death, by virtue of the last will and testament of his father, William Henry, deceased; that the devise was made agreeably to an article of agreement between said Samuel and his father, which article provided that said Samuel should support the widow of his father during her life. Averment, that said Samuel did not support said widow of his father, as he was to do by said agreement.

Replication to the first plea, that said Samuel D. Henry did die seized in fee of the said land.

Demurrers to the second and third pleas, and the demurrers sustained.

The issue on the first plea was submitted to the Court.

The Court found that the facts stated in the petition were true; that the land had been aliened by said Samuel D. Henry, in the year 1825; and that the said Kezia was lawfully entitled to the dower claimed in the petition.

The Court also appointed commissioners to assign the dower, and instructed them to make the assignment according to the value of the land at the time of the assignment, exclusive of the increased value caused by improvements made since the alienation of the land by said Samuel D. Henry. The commissioners were also instructed to set ofF the dower by metes and bounds.

The second plea is bad, on the ground that the decree relied on in that plea is not set out. The plea alleges that the dower was barred by the decree; but that allegation is a mere conclusion of law. The decree should have been set out, so that the Court could have determined whether or not the dower was barred by the decree.

J. Robinson, for the plaintiff.

The third plea is also bad. By the will mentioned in the plea, Samuel D. Henry took the legal title to the land. If, in consequence of the article of agreement mentioned in the plea, any condition was annexed to the devise, it was a condition subsequent. Supposing there was such a condition, the non-performance thereof would have authorized the heirs of the devisor to enter on the land and thus destroy the devise. But, until such entry, those holding under the devisee are entitled to the land. Cross v. Carson, 8 Blackf. 138. There is no intimation in the plea, that the defendant is an heir of the devisor.

The defendant cannot complain of the instruction to the commissioners to assign the dower according to the value of the land at the time of the assignment,- exclusive of the improvements made after the husband’s alienation. We formerly decided that the value of such improvements was not to be taken into consideration. Wilson v. Oatman, 2 Blackf. 223. But since that time the question has been differently decided in England. Doe d. Riddell v. Gwinnell, 1 Adol. & Ellis, 682. The point is not, in this case, material; for, if the Court erred as to that, the error was in favor of the defendant.

The instruction to the commissioners to assign the dower by metes and bounds is objected to. The record does not contain the evidence, and we must presume that the evidence showed that the dower ought to be set off by metes and bounds.

Per Curiam.

The decree is affirmed, with costs.

May Term, 1852. Harbert v. Dumont.  