
    NASHVILLE:
    DECEMBER TERM, 1839.
    London vs. London.
    Where a widow filed her bill charging her deceased husband \yilh selling and conveying his land with intent to defraud her of her dower, and praying dower, and damages for t'.e detention thereof, and the chancellor submitted both the validity of the deed and the quantum of damages lo a jury: Held, that the submission of the matter of damages to the jury was not in accordance with chancery practice. The validity of the deed being settled by the verdict of the jury, the court should give relief by assigning dower and taking all proper accounts between the parties.
    The finding of the jury does not preclude the court from calculating and ascertaining for itself the true amount of damages.
    Pamelia London filed her bill in the chancery court at Columbia in the year 1838, against John London, praying a decree for dower and damages.
    The bill alleges that complainant was the widow of John London, deceased, who died intestate in the county of Maury,-in the year 1832; that John London, deceased, was the owner in 1S31, and for a number of years previous thereto, of a tract of land lying on Globo creek, in that part of Marshall county which constituted a part of Maury county previous to the establishment of Marshall, containing about one hundred and fifty acres; that in the year 1831 he made a fráu-duient sale of the land to his son, John Loir’ n, with the purpose and intent to cheat and defraud comp inant of her dower in the said land; that John London, -onior, died in 1832, leaving no other lands of which complainant could be ail¿ London, ji’., had, from the death of his father John London, held possession of the said land, and received the profits thereof.
    On the 3d of September, 1838, John London filed his answer: 1st. He alleged that the complainant was the wife of John London, déceased, but that she was guilty of adulterous practices, and that in consequence thereof a separation took place, which continued till the death of her husband, in 1832.
    2d. He alleged that John London, deceased, had been the Owner, as stated in the bill of complainant, of the tract of land therein described, and that John London, deceased, did sell the said land to him; that the sale was made in good faith, and was not fraudulent nor with the intent to defeat the complainant of her dower; that he agreed to give twelve hundred and seventy-five dollars for the land, paid seventy-five dollars at the time of sale, and executed twelve notes for the balance, payable in twelve annual instalments; that he subsequently took up the five notes first due by the execution of a deed to his father, John London, deceased, for ninety acres of land, valued at five hundred dollars; that the purchase was made with the view of providing a place of residence for the complainant and her children; that the premi-' ses were in a ruinous and dilapidated condition when he took possession of them, and that they would not have rented for eighty dollars.per annum, and that he made valuable improvements thereupon.
    At the January-rules, 1839, the complainant filed a general replication. The following is a statement of the material facts as disclosed by a mass of minute testimony.
    John London, deceased, married complainant in the State of North Carolina, and lived with her a number of years. They had seven children. They removed to the State of Tennessee, and John London purchased in the county of Maury a tract of land on Globe creek, containing about the number of one hundred and fifty acres. For several years before his death he became much addicted to intoxication, fend at times was exceedingly abusive to complainant. His ill temper and habits of intoxication were increased by the _ r. . . , t belief that complainant was unchaste and had adultery. Their house was the scene of constant broils, and separations occasionally took place for short periods. His dissatisfaction increased, and he informed several persons that his wife was unfaithful to him, and that he intended to sell the land upon which he then resided, for the purpose of defeating her of the right of dower in the tract. He applied to an individual to write his will, expressing a desire that his wife should be deprived of dower. He proposed at another time an exchange of lands, and desired that the deed for the land to be exchanged for the tract on Globe creek should be made to his brother, giving as a reason therefor that his wife was unfaithful to him.
    The place was neglected in its cultivation, the fences got out of repair, and the premises were in rather a dilapidated condition. There was a hewed log building upon it, a barn and some out-houses, but no spring. Much testimony was given as to the value of the place, the lowest estimating its value at one thousand dollars, upon the usual credits of the country, and the highest at two thousand. Several witnesses testified that London, deceased, had offered it at about the sum of twelve hundred dollars. It was ultimately sold to John London, jr., a son by a former wife, for the sum of twelve hundred and seventy-five dollars; of this sum seventy-five dollars was paid at the time of the sale; twelve notes for one hundred dollars each were executed by John London, jr., to John London^' sr., payable in twelve successive years. The annual value of the place appears from the testimony fo be about one hundred dollars. One of the subscribing ydtnesses testified that at the time of the sale John London, sr. stated that his object in making the sale was to defeat his wife of her dower in the land. A deed was executed to John London, jr., bearing date the 24th day of February, 1830. At the time of the sale John London, sr., had no land except the premises of which dower is now sought, and complainant moved to the house of a neighbor, in a destitute condition, with six children; the seventh was born after this removal. John London took possession of the premises, and in. some short time discharged five- of' the first notes by the ex- . ,, , , , ■ r , r . ,, , , . oí a deed to his father for ninety acres oí Jana oí inferior quality in the same neighborhood. John London, sr., t00]j p0SSe3Sj0n 0f †}16 premises; but complainant, who had separated herself from her husband at the time of the sale of' the Globe creek tract, refused to accompany him to it. John London, sr., lived upon the place so purchased for some time, abandoned it, and died in the year 1S32. From the time John London, jr. took possession of the Globe creek tract till the filing tiie bill for dower by the complainant he had made valuable improvements upon it. He improved the dwelling house by the erection of two piazzas and a stone chimney; he repaired the fences, cleared and fenced some ten or fifteen acres of land, and erected a grist-mill.
    There is much conflict in the testimony in regard to the charge in the answer of adultery. Numerous witnesses testified that she was a frugal, industrious, chaste and exemplary wife; while some three or four witnesses swore that they had personal knowledge of her infidelity to her husband, a.s charged in the answer of defendant.
    On the 22d day of March, 1839, this cause came on to be heard before chancellor Bramlett, on the bill, answer, replication and proof. The following order was then made:
    “And because it appears that the defendant denies that complainant is entitled to dower in the lands in controversy, it is ordered by the court that complainant file her declaration, and the defendant his pleas, and that a jury come to try the issue whether complainant is entitled to dower in said land, and what damages she hath sustained by reason of the detention of the sam$ and the defendant’s refusal to assign dower in said land.”
    Complainant filed her declaration in the following words:
    “Pamelia London, widow of John London, sr., deceased, complains of said John London, junior, of a plea of dower, wherein said Pamelia demands of said John, jr., her just and reasonable third part of the said tract or parcel of land mentioned in the said bill and answer, whereof she is by law dowable, of the endowment of John London, deceased, her late husband, according to the true intendment of Jaw, and whereof she has no thine-. And the said complainant avers i i . , t i -r i • i lililí that the said John London, senior, deceased, her late was seized in his demesne as of fee of said tract of land, during her coverture and while she was his wife, and was actually in possession thereof, and that said John, sr.,her husband, conveyed the same to said defendant of fraud and covin, to defeat complainant’s right of dowel in said land, and that the yearly value of said land was, and ever has been since the decease of her said husband, two hundred dollars.
    “And the complainant at, &c., on the-day, &c. did demand and request said defendant-, who then did and now does claim aright and inheritance in the said land, to assign and set out to her, the said complainant, her dower or just third part of the same; and the said complainant says that the said defendant refused and still refuses to assign and set out to her her dower in the land aforesaid, and that he now refuses so to do, to the damage of complainant ten thousand dollars.
    “And the defendant comes and defends, &c., and by order of the court, for plea says, that he is not guilty as the complainant hath alleged, and of this he puts himself upon the country, &c. with leave to give in evidence any special maL ter which would constitute a bar to the right of dower of complainant.”
    The bill, answejc and proof were exhibited to a jury em-pannelled and sworn instan ter. The court charged the jury as follows;
    “The issue submitted to you is as to the validity of the deed from the deceased, John London, sr., to his son, John London, jr. It is alleged by the plaintiff that the deed to the defendant was made with an intent to defraud the plaintiff of her right to dower in the land set forth in said deed. This allegation has been directly denied by the plea of the defendant. He has been permitted to give in evidence any matter which in law would constitute a bar to her right of dower. You will look to the proof in this cause, and ascertain from such proof whether the deed mentioned in such pleadings was made with an intent to defraud the plaintiff by depriving her of her legal right to dower: it must be shown that both parties to the fraudulent conveyance were . , T i to and co-operating in it. Jbor instance, it John London, sr,, secretly intended to convey his land with the in-†0 defeat his wife of dower, and that intention was wholly unknown to his son, the bargainee, that would not make the deed fraudulent, and would not authorize either a court of law or of equity to set aside the deed, as his conscience could in no sense'be affected by the secret intentions of the father unknown to the son. The fact of knowledge, however, may be established like any other fact, by direct and positive proof, or by the proof of such circumstances as are sufficient to enable the jury to infer such knowledge. You are not presumptuously and without proof to presume fraud; but you will look to all the proof introduced, and then decide from the facts proved by the testimony of credible witnesses, and from circumstances legitimate in their character, established to your satisfaction by the like proof, whether such conveyance was made to defraud the complainant, and render your verdict accordingly.’
    “The defendant has raised two other questions under the pleadings and proof in the cause. 1st. That the statute of limitations forms a bar to complainant’s claim: 2d. That by virtue of our laws the plaintiff has forfeited her right to. dpwer by having committed adultery and eloped with her-adulterer.
    “The court is of opinion that the statute of limitations does not constitute a bar to the plaintiff’s right of dower.
    “As to the last point, the court is further of opinion that the defendant did not forfeit her light of dower unless she is proved to have been guilty of adultery and elopement, and it would not do to prove that she was guilty of adultery alone, but adultery and elopement with her adulterer. If the jury should be of opinion, from a careful examination of the proof, that complainant has not been guilty of adultery, they can say so in their verdict. If the jury should be of opinion that the proof establishes the adultery, they must go further and ascertain whether there was both adultery and elopement with her adulterer; and if they should be of opinion that the plaintiff has been guilty of both, then she would, . , .. r i . , , jí-lj m the opinion of the court, be barred of her dower.
    “This court has no right to direct an issue to be made and tried which is not found in the pleadings.
    “If you should be of opinion that the complainant is entitled to be endowed of the land mentioned in the pleadings,you are at liberty to ascertain the damages she has sustained in consequence of the detention of her dower; then damages may be determined by the value of the rents and the interest thereupon; but the verdict should be rendered in damages, for it is the injury which the plaintiff is supposed by the law to have sustained for the failure of the heir or those holding under him to assign dower as he should have done.”
    The jury returned a verdict in favor of complainant, and assessed her damages by reason of the detention of her dower, to the sum of seven hundred and twelve dollars and forty-one and a half cents.
    A motion was then made by defendant to set aside this verdict, which was overruled by the court, “because it appeared, as well from the proof in the cause as by the verdict of the jury, that the said John London, sr., did convey said tract of land to John London, jr., to defeat the said complainant, his wife’s, right of dower, and that said complainant had not been guilty of adultery and elopement, and that she is entitled to dower in said land, and that the defendant had, contrary to law and right, deforced and deprived her of her right to dower from the fall of 1832 till that time;” and the court being further of opinion that the statute of limitations was no bar to her right of dower,- ordered, adjudged and decreed that a writ of dower should issue to the sheriff of Marshall county, commanding him to summon five freeholders, ill pursuance of the statute of the State, to allot and set off by mites and bounds one third part of said tract of one hundred and fifty acres of land, including “the dwelling house, all offices, out-houses, buildings and improvements thereunto belonging or in anywise appertaining;” and said sheriff should put said complainant in possession of the same, -to hold during her natural life; and the court further decreed that complainant should recover of the defendant the sum of seven hundred and twelve dollars and forty-one and a half cents damages by the jury assessed, and the costs of the suit. From this decree the defendant appealed.
    
      Cook for appellant.
    1st. The verdict of the jury and decree of the court as to the validity of the deed is not sustained by the proof, and is erroneous. Defendant gave a full and adequate consideration for the land, and whatever might have been the objects of John London, senior, it is distinctly denied in the answer of the appellant that he knew any thing of the existence of a fraudulent intent on the part of his father in making the sale, and there is not the slightest proof to sustain such a charge. The deed was a valid bona fide conveyance of the land to the appellant. The verdict of the jury is not conclusive upon the court, but is only of weight so far as it goes to settle a point of evidence equally balanced;
    2d. The decree is clearly erroneous in giving the complainant one-third of the land in value in its improved state at the time of the decree. By the clearly established principles of law the wife was only entitled to one-third of the land in value exclusive of the improvements made after a sale. Thompson vs. Morrow, 5 Serg. and Ráwle, 389; Hum-phreys vs. Phinny, 1 Johnson’s Rep. 484: 6 Johnson’s Ch. Rep. 258-9: Catlin vs. Moore, 9 Mass. 218: Powell vs. M. SfB. Manufacturing Company, 3 Mason, 347: Horcester vs. Coventry, 11 John. Rep. 510: 1 Roper on Property, 346, 347.
    The decree is manifestly erroneous from the above authorities in giving damages according to the improved value of the land arising from the money and labor-put upon the premises by the appellant after his purchase. In case of alienation she is entitled to rents or damages from the time of demand of dower, and those only according to the state and condition of the premises at the time of the alienation. In this case the almost entire proceeds of the place arose from 'the labor and money appellant bestowed upon it; He repaired the entire fencing, cleared and fenced some ten or fifteen acres of land, improved the dwelling house, and erected & valuable mill. It cannot be possible that she would be entitled to dower of those valuable improvements or damages for the detention of improvements which did not exist at the time her husband was seized or possessed of them, or at 1 ,, death.
    
      Cahal, for the complainant.
    Mr. Cahal famished no brief of which the reporter could avail himself.
   Reese, J.

delivered the opinion of the court.

This is a bill filed by the complainant to have dowér assigned her in a tract of land conveyed by the husband in his life time to the defendant, his son, with the purpose and intent, as the complainant alleges, to deprive her of her dower therein, and for an account; and whether said conveyance was fraudulent and void as against the widow’s claim for dower by the provisions of the act 1784, ch. 22, sec. 8, was, aside from the account of profits prayed, the only subject of controversy, for the allegation in the answer of infidelity of the wife is uncoupled with a statement of elopement. The defendant insisted upon the validity of the deed, and resisted the assignment of dower and the cl aim for account. And the whole question, both as respects the validity of the conveyance and the amount of profits if the conveyance as against the complainant should be set aside, were proper for the con-, sideration of a court of equity, and the chancellor might well have decided upon the whole matter. But the chancellor saw proper to call before him and empannel a jury to whom was submitted the whole question, as well touching the matter of account as the validity of the deed. The jury in their Verdict find the deed to be fraudulent as against the complainant, and they assess her damages for the detention of her dower to seven hundred and twelve dollars and forty-one and a fourth cents; this finding formed the basis of the chancellor’s decree. We are satisfied with the decree of the chancellor as to the invalidity of the deed, but as toihem.n-ter of account we are not satisfied with the mode in which it was taken, not being according to the course of a court of chancery, nor are we satisfied with the result in point of amount. The proof in the case makes the annual rent of the entire tract to have been at most one hundred dollars; and the time of the rendition of the verdict and the pronoün-of the decree from the death of the husband was about six years and six months. The damages given in England ^ ^jme w[jel[1 jn that country the writ of unde nihil habet was in general use, was, by the express purview and terms of the statute 20 Iienry III, called the statute of Merton, the one-third of the annual profits of the estate from the death of the husband. But it has been insisted that this verdict is conclusive; that it is not to be regarded as auxiliary to the chancellor in pronouncing his decree, but that the proceeding was necessary in order to have pronounced any decree at all upon the subject of the account prayed for in the bill; and it is even urged that a court of chancery has no jurisdiction to give relief in a matter of account in dower, when the right to dower is disputed and is sent to be tried at law; such trial at law of the right it is said ousts the court of its power over the relief as to the matter of account, and turns the question into one of damages, to be passed upon, if at all, by the jury which determines the right. This objection, even as regards the proceeding in'England, is utterly groundless. The case of Curtis vs. Curtis, a leading case and very peculiar in its circumstances, (2 Brown’s cases in chancery, 620,) covers the whole ground of the objection, and decidedly negatives its correctness. A bill was filed to have dower assigned, and for an account. The heir in his answer denied the marriage. The bill was retained and leave given complainant to investigate her right at law. She sued out her writ of dower, and the heir pleaded, but before issue joined died, leaving a widow, who was devisee for life; a bill of revivor was filed against her, and a declaration in the case was delivered to her, and she pleaded: 1st. That the plaintiif had not been married to the elder Curtis. 2d, That he had not been seized during coverture. The court of common pleas sent the first issue to the Bishop of Bath and Wells, who certified the marriage, and the issue upon the seizin was found in favor of the plaintiff; and then the widow of the heir died, and afterwards the complainant, the widow of the elder Curtis, died, and her personal representatives filed a bill of revivor and supplement against the representative and devisee in remainder of the first heir, to have an assignment of dower upon the right to dower so ascertained, and an account of profits up to the time of the death of the complainant in the original bill, against the several estates represented by the defendants. And the dower was assigned, and the account given accordingly; and Lord Alvanly distinctly admitted that the remedy was gone at law. He says, indeed, “that it seems to him an odd construction of the statute of Merton, that the damages given by it are to be considered strictly as damages in the breast of a jury, and not capable of ascertainment by the court, and that therefore they are to die with the person; however, so it has been determined.” Again, in the same case, he says, “If in this court you deny the widow’s right to dower, the question must be tried at law; but where the fact is ascertained, she shall have her relief here.” And referring to the case of Dormer vs. Fortescue, determined by Lord Hardwicke, and reported by Mr. Atkyns, Lord Alvanly says, “as far as one can collect Lord Hardwicke’s sentiments from the case, he thought this court would expect the widow to establish her title at law, but she having done so would give her relief here as to the mesne profits.” That is saying let the widow bring her action at law out of form, and for the purpose of determining her title to dower, and when she has done that we will give adequate relief; and I agree in thinking that the widow labors under so many disadvantages at law, that she is fully entitled to every assistance that this court can give her, not only in paving the way for her to establish her right at law, but also by giving complete relief where the right is ascertained.” In the subsequent case of Mundy vs. Mundy, Lord Loughborough, speaking on the question of jurisdiction, says; “That it is not controverted that dower is very similar to the right of tenant in common. This court has entertained bills for partition, and the jurisdiction has been admitted in bills for dower for a long time under some circumstances. The principle of that is just, for where parties have a common interest they have it ascertained. That necessarily involves a species of account. If that is answered by the proceedings here, there is no occasion to send it to law, where there is a degree of intricacy and difficulty. This has had the effect of almost putting an end to writs of dower. In the course of twelve years I do not remember more than two, and they must be in the court of common pleas. But this jurisdiction is peculiarly proper on another ground. Dower at law can only be opposed by a legal bar. Now, equitable bars are in daily practice.” 2 Ves. jr., 1793, and 4 B. C. C. 295: see also Goodenough vs. Goodenough, Dickens, 795. The learned commentator on American Law, vol. 4, p. 71, 3d edition, says, “Dower may be recovered by bill in equity as well as action at law. The jurisdiction of chancery over the claim of dower has been thoroughly examined, clearly asserted, and definitely established. It is a jurisdiction concurrent with that at law, and when the legal title to dower is in controversy it must be settled at law; but if that be admitted or settled, free and effectual relief can be granted to the widow in equity, both as to the assignment of dower and the damages. The equity jurisdiction was so well established, and in such exercise in England, that Lord Lough-borough said that writs of dower had almost gone out of practice. The equity jurisdiction has been equally entertained in this country, though the writ of. dower unde nihil habet is the remedy by suit in practice.” The preceding review of authorities will, I fear, be thought a labor of super-errogation, when it is remembered that in this State we have no writ of dower, unde nihilhdbet, or other writ of right, nor any remedy on the subject of dower, except the summary one given by the statute of 1784, ch. 2, not adapted- to taking the account or ascertaining damages, and the remedy by bill in equity; and when also it is. remembered that the act of 1823, ch. 37, gives to widows dower out of the equitable estates in land of which their husbands were owners at the time of their death; and lastly and especially, when it is remembered that the act of 1835, ch. 19, sec. 4, expressly provides “that the circuit courts shall have original and concurrent jurisdiction with the chancery courts of all petitions relative to dower.” It is obvious that it was unnecessary, perhaps improper, to have submitted the matter of account to the jury; at all events, their finding does not exclude the court from calculating and ascertaining for itself the true amount of compensation to be decreed to the widow tor the tion of her dower. No doubt is entertained by us that in cases of dower in chancery, where the marriage or the seizure is denied, or where adultery and elopement are imputed, or where the tenant in possession does not claim under the husband or the heir but adversely, that in some of these cases an issue should be submitted to a jury, in others an action should be directed to be brought at law. Such a step would be in accordance with the course of a court of chancery; but the facts being found, or the right established in these cases in favor of the complainant, the court should give complete relief by assigning the dower, and taking all proper accounts between the parties. The proceeding in the chancery court, and the conclusiveness of the verdict in this case rendered, are sought to be maintained by some general observations in the case of Thompson vs. Stacy, on the subject of dowerat common law, and the damages given by the statute of Merton, and in reference to the remedy furnished by our act of 1784. The point before the court in that case is'stated in the note of the reporter: “A dowress cannot main<-tain an 'action of assumpsit for use and occupation against a tenant from year to year for rents which accrue after the death of the husband and before the assignment of her dower, although no damages were given to her when her dower was assigned.” This was the only point in the case, and of the correctness of the decision upon that point the court now, as then, entertain no doubt. But in the observations made by the writer of the opinion upon the widow’s rights and remedies at common law, the reporter, from his notes of the case, seems to have supposed the three following propositions to have been involved: “1st. That under the statute of 1784, authorizing the widow to file her petition in the county court or circuit court, if the right to dower is disputed, a jury must be empannelled to try it,"and the damages are to be assessed by the jury. 2d. If, upon a petition filed under said statute, the widow’s right to dower is not disputed, and she claims damages which are not admitted, a writ of enquiry must be awarded to ascertain them. And 3c[. If the widow’s dower be assigned under the provisions of that and no damages be assessed or given to her m the proceeding, her right to recover damages is forever gone.” If rep01qer pe correct in supposing that the general observations referred to contain the conclusions in the three propositions stated above, then the reasoning in the present case establishes, that we doubt the correctness of some of them, and are not at present prepared to yield an authoritative sanction to any one of them.

Upon the whole we are satisfied that one-third of the amount of the verdict in this case rendered will be a proper sum to allow for the rents and profits; or rather, perhaps, thirty-three and one-third dollars for each year, and interest thereon, which the clerk and master will ascertain and calculate, and thereon make his report.

INTERLOCUTORY DECREE.

This cause came on for hearing this 28th January, 1840, before the supreme court, whereupon it appearing to the court that the verdict of the jury assessing complainant’s damage for the detention of her dower is excessive and not warranted by the evidence in the cause, it is ordered, adjudged and decreed by the court that the decree of the court below be reversed, and that the clerk and master of this court take and state an account of said damages, being one-third of the annual value of said land from the death of John London to, this time, with interest, estimating the yearly value of the whole tract of land at one hundred dollars per year, and allowing the complainant one-third thereof, and until the coming in of said report other matters are reserved.

At a subsequent day of the term the clerk and master, in pursuance of the interlocutory order, reported the sum of two hundred and seventy-five dollars and twenty-five cents in favor pf the complainant, whereupon the following final decree was rendered in the cause,

FINAL DECREE.

This cause came on again for final hearing, upon the report of the clerk and master, made in pursuance of the interlocutory order heretofore made, and the said report is in all things affirmed; and it appearing to the. satisfaction of the court that the conveyance of the land in the pleadings mentioned, from John London, senior, to the deiendant, was with the fraudulent intent of defeating the complainant of her right of dower in said land, it is therefore ordered, adjudged and decreed that said conveyance, so far as regards the rights of the complainant, he and is hereby declared void, and that a writ issue to the sheriff of Marshall county commanding him to summon five freeholders of said county, who shall allot and set apart to said Pamelia London the one-third part in value of said land, including the mansion house, if the said Pamelia shall so elect, but in laying off said dower they shall have regard to the improvements put on the said land by the defendant since the death of John London, senior, which are not to be taken into consideration in estimating the value of said land, but the same shall be estimated in value according to its state and condition at the death of John London, senior. And in case the complainant shall elect to take her dower including the mansion house, or the same shall be allotted to her, then the value of the improvements put upon said part since the death of John London, senior, so allotted in dower to complainant as in its improved state, shall be one-third of the whole value of the land in the fall of 1832 at the death of John London, senior. And it is further ordered, adjudged and decreed that inlaying off said dower proper regard shall be had to the whole tract and to the adjoining lands of defendant so as to do as little injury as possible to the same in doing justice to the complainant. And it is further ordered, adjudged and decreed that the complainant recover of the defendant the sum of two hundred and seventy-five dollars and twenty-five cents for her damages, as reported by the clerk and master, and that the defendant pay all the costs of the court below; and that half of the costs of this court be paid by the defendant and the other half by the complainant.  