
    DEN EX DEM. SMALLWOOD v. BILDERBACK, UX. AND MOORE.
    In Mjeetment for land in Gloucester, and verdict for plaintiff.
    On rule to shew cause why verdict should not be set aside and. new trial granted.
    In ejectment by the grantee of a mortgagee, against the mortgagee’s tenant, it is not necessary to produce the mortgage or the bond, in support of the plaintiff’s title, against said tenant or others claiming under him.
    The widow of the mortgagee having conveyed her estate in dower, to the tenant against whom the mortgagee afterwards recovered the mortgaged premises, is barred of dower therein, although the premises were after-wards conveyed by a sheriff, to her second husband, under a sale upon an execution against the same tenant.
    It was competent evidence on the trial of this ejectment, for the plaintiff to read the said widow’s conveyance of her dower, to said tenant, against whom the former recovery was had by the mortgagee.
    The service of a writ of Sab. fae. possessionem, must he, by putting the tenant out of, and the plaintiff into the house, if there be one on the premises.
    If a widow gives up possession of the mansion and plantation of which her husband died seized, her right of entry is gone, and her only remedy for dower, is by action of dower. She cannot without suit, re-enter, and retain possession of the premises as of her dower.
    This cause was submitted at May Term last, upon the following; state of the case, and the briefs of the counsel.
    
      CASE.
    On the 11th May 1830, Ward Wilson being the owner in possession of the premises in question, and being indebted on a bond in the sum of five hundred dollars to Washington Rice, executed to him as collateral security for the payment thereof, a mortgage on the premises. **
    Ward Wilson afterwards, and before the commencement of the ejectment herein after mentioned, died, intestate, leaving one child and his wife Jane, now Jane Bilderback him surviving.
    In 1833, Washington Rice commenced an action of ejectment on the said mortgage for the recovery of the possession of the mortgaged premises. That action was commenced against one Stephens who was then the tenant in possession; but, as it was alleged and admitted by the plaintiff's counsel, one Joseph Wilson, a brother of Ward Wilson the mortgagor, had been admitted to defend with Stephens, as his landlord. In that action, a judgment was rendered in favor of John Den on the demise of Washington Rice against the said Joseph Wilson and his tenant Stephens, on the 19th of May 1835; and a writ of possession, including a fi.fa. for costs was thereupon issued, returnable to the Term of September 1835, (pro ut the record of judgment and execution.) It further appeared by the said record that the sheriff of the county of Gloucester had returned the said writ of possession, duly executed,, by delivering to the plaintiff therein named, the possession of the said premises.
    The plaintiff then called James W. Caldwell, former sheriff of Gloucester county, who testified that in the year 1835 by virtue of the said writ of possession he went with John M. White, Esq. acting as attorney in fact for Washington Rice, to the premises in question, and there delivered to him the possession of the said premises; which premises were the same that are mentioned and described in the mortgage from Ward Wilson to Washington Rice. But upon a cross examination of the witness it” appeared, that there was a dwelling house on the premises, into which he did not enter, nor did the witness know whether it was inhabited or not; the only manner in which he executed the writ of possession, was by saying, while on the premises, that he delivered the possession to the plaintiff.
    The plaintiff further gave in evidence a lease in writing but not under seal, bearing date the 22d July 1835, made between Washington Rice of the first part, and the said Joseph Wilson of the second part, whereby said Wilson hired the said premises and became the tenant of the said Rice for a stipulated period at a certain rent (pro ut the said writing.) This lease, it appeared in evidence, had been made and entered into after the writ of possession had been executed in manner aforesaid.
    The plaintiff further gave in evidence the following deeds.— First, a deed from Washington Rice to John C. Smallwood the lessor of the plaintiff, for the premises in question, dated the 20th of August 1835, pro ut the same.
    Secondly, a deed from Jane Wilson, widow of Ward Wilson, now Jane Bilderback, to Joseph Wilson, dearing date the 1st of April, 1834, for all her right title of dower in the said mortgaged premises, and
    Thirdly, a deed from J. W. Caldwell sheriff of Gloucester county, to Bilderback, the defendant in this suit, bearing date tile 12th of December, 1835, which deed recited the aforesaid deed from Jane Wilson to Joseph Wilson, of all her right of dower aforesaid, and then conveys the same to said Bilderback by virtue of a sale thereof to him, on an execution against said Joseph Wilson, at the suit of said Bilderback and his said wife Jane (pro ut the said deed.)
    It fully appeared in evidence that Moore, one of the defendants in this suit, was in possession of the premises in question, when the declaration was served on him, and it was admitted that Bilderback and Jane bis wife, formerly Jane Wilson, the widow of Ward Wilson, defended with him as his landlord.
    The plaintiff did not produce or in any manner account for the non-production of the bond mentioned in mortgage to Washington Rice, and to secure which, the said mortgage had been given; but here rested his cause.
    Mr. Jeffers for the defendants then moved to non-suit the plaintiff, which motion I over-ruled.
    The defendants then gave in evidence a deed, dated 3d of March 1836, and prior to the commencement of this action, from the defendants Bilderback and wife to James B. Hunt; and also a deed from James B. Hunt to Jane Bilderback, dated 4th of March, 1836, for the premises in question (pro ut the said deeds.)
    
      The defendants then rested, and the cause was submitted under the charge of the court. Whereupon the court charged the jury, that upon the facts above stated, if they believed that such facts existed, the plaintiff claimed title by deeds from the mortgagee, made by him while in possession, or at least while in the receipt ,of the rents and profits, it was not necessary for the plaintiff on this trial to produce or account for the non-production of the bond.
    The jury rendered a verdict for the plaintiff. Let this be taken as a state of the case, to be submitted to the court, upon a motion for a rule to shew cause, why the verdict should be set aside, and a new trial granted ; if upon reflection the defendants’ counsel shall think proper to make such motion.
    JOSEPH C. HORNBLOWER, Chief Justice.
    October, 1837.
    
      Jeffers, for defendants, in support of the rule.
    
    1. The lessor of the plaintiff did not show any possession either in himself or Washington Rice, under whom he claims.— There was no delivery of possession by sheriff Caldwell. There was a dwelling house on the premises which the sheriff did not enter. He went along the road, and said he delivered possession, without doing any act giving possession. Words will not give possession. It might as well be said that an arrest could be made by words, without touching the defendant. The delivery of possession is done by turning out the tenant when there is a dwelling house. Adam’s Eject., 308, 9 ; 2 Arch. Prac., 53. If the premises are vacant, there must be an actual delivery of possession. Arch. Prac., 54.
    2. The plaintiff should have produced the bond mentioned in the mortgage or account for the non-production. The mortgage is a mere security for the debt, and the bpnd is the only evidence of the debt.
    3. The court admitted unlawful evidence for the plaintiff, in allowing him to read the record of- a deed from Jane Wilson to Joseph Wilson. It was against the rule that the plaintiff must recover upon his own title, not upon the weakness of his adversary’s. This deed was no part of the plaintiff’s title.
    4. The defendant Jane Bilderback was entitled to dower in the premises, and ought not to be turned out of possession merely to bring her action of dower for re-possession. Her right of dower is a bar to the action of ejectment. 1 Hals., 367.
    
      Browning for plaintiff.
    I. My answer to the first objection of the defendants is, there was no necessity of showing any possession, by the lessor of the plaintiff, or by Washington Rice, under whom he claimed. The only facts necessary to be established by a claimant in ejectment are:
    1. That he had the legal estate in the disputed lands, at the time of the demand laid in the declaration.
    2. That such legal estate was accompanied by a right of entry; and
    3. That the defendant (not lessor of plaintiff) or those claiming under him, were in possession of the premises at the time the declaration was delivered. — (See Tillinghast’s Adams’ Ejeot., 347.)
    Our case finds all these facts, viz: that Ward Wilson was, in 1830, the “owner in possession ” of the premises in question, which he then conveyed by mortgage deed, to Washington Rice, that Rice, August 20 1835, conveyed to the lessor of plaintiff, and that Moore, one of the defendants, was in possession when the declaration was served on him. (The other defendants defended as landlord.)
    It matters not therefore, whether in the former ejectment for the same premises, sheriff Caldwell duly executed the Hub. fa. or no. His failure to do so, could not take away our right to recover possession by a second ejectment, either against the said defendants or others in possession.
    Besides, our case expressly finds that after the writ of possession was executed, the defendant in that ejectment — Joseph Wilson — took from Rice, the lessor of the plaintiff, .a lease of the premises: thereby admitting his title and possession.
    II. I can find no authority that, where the lessor of the plaintiff claims under a mortgage deed, it is necessary on the trial, to produce the bond to secure which, the mortgage was given. Nor have the defendants pointed me to any. The contrary is expressly decided by the court in the case of Den. ex. dem., Green v. Steelman, 5 Hals. 204. The mortgage showed a legal title. If it had become void by the payment of the bond, that must be shown by the party making such defence.
    But this is not the case.of a mortgagee bringing ejectment, but of a purchaser by an absolute deed, under the mortgagee, and who cannot be supposed to have the bond.
    III. No objection was made at the trial, to reading the deed of Jane Wilson to Joseph Wilson, and therefore none can now be made. But the plaintiff’s right of recovery, appeared completely independent of that deed, and its being read without objection, in evidence, could not surely destroy that right. It was read to rebut any pretence the defendants might make, to retain possession, because of any right of dower in Jane — one of the defendants — by showing she had previously conveyed away that right.
    IV. As to the fourth objection; Jane Bilderback — formerly Jane Wilson — had no right of dower in the premises. She had parted with it by her deed to Joseph Wilson. The conveyance of it by sheriff Caldwell to Bilderback, and by Bilderback and wife to Hunt, and by Hunt back again to Jane Bilderback, ■would not re-inslate her in her old estate of dower, so as to enable her to hold possession without assignment. The case in 1 Hals., 367, lays down no such doctrine. Besides, the right to hold possession by a widow, extends only to the mansion house and plantation annexed.
   At the present term, the following opinions were delivered.

Hoeeblower, C. J.

If the plaintiff’s right of recovery in this case, depended on the question, whether the writ of possession had been duly executed, he could not succeed, for it is clear that the attempt of sheriff Caldwell to execute that writ, was an entire failure. He did not put the defendants out of possession, nor put the lessor of the plaintiff in.

But on the 22d July 1835, after the sheriff had thus ineffectually executed the writ, Joseph Wilson who was the real defendant in the ejectment, and who defended as the landlord of Stephens, attorned to Washington Rice under whom the now plaintiff claims title, and in writing, admitted himself to hold under him, íbr a stipulated rent. Washington Rice then became seized of the premises in question, and as against Joseph Wilson, and all claiming under him, entitled to the actual possession at the expiration of the term for which he rented the same to Wilson. While Wilson was thus in possession under Rice, that is to say, on the 20th August 1835, Rice conveyed the premises in fee to Smallwood, the lessor of the plaintiff in this action, by which he clearly became entitled to recover against Joseph Wilson, and all claiming under him. But Bilderback and his wife and Moore, the defendants in this suit, do claim under Joseph Wilson. On the 12th of December 1835, the sheriff of Gloucester under and by virtue of an execution against Joseph Wilson, sold and conveyed all his right and title to the premises, to Bilderback, under whom Moore the other defendant is tenant in possession.

Several objections however are set up by the defendant’s counsel. First. It is insisted that the lessor of the plaintiff ought to have produced, or accounted for, the non-production of the bond mentioned in the mortgage from Ward Wilson to Washington Rice, under which mortgage, the lessor of the plaintiff claims title.

In Den v. Steelman, 5 Halst., 204, Chief Justice Ewing held that in an action of ejectment, by a mortgagee it is not necessary for a plaintiff to produce or account for the bond, but however that may be, in this case, Rice the mortgagee, had already recovered in ejectment on his mortgage, and while in possession, by his tenant Joseph Wilson, he conveyed the premises to the present lessor of the plaintiff who therefore claims title as grantee of a man who was in possession when he made the conveyance. It was therefore unnecessary for the plaintiff to produce either the mortgage or the bond. His deed from Rice was sufficient to entitle him to recover against Rice’s tenant, and all persons claiming under him.

Secondly, It is objected that Mrs. Bilderback who was the widow of Ward Wilson the mortgagor, is entitled to dower in the premises, and ought not to be turned out by this action and put to her suit for dower. But this is a mistake. She is not entitled to dower. It appears that after the death of her husband, Ward Wilson, and before she' married Bilderback, viz: on the first of April 1834, she assigned all her right of dower to Joseph Wilson, against whom a recovery in ejectment was afterwards had by Rice, to whom he then became a tenant. It is true that after this, the sheriff of Gloucester under an execution against Joseph Wilson, sold the premises to her husband Bilderback, but if Bilderback thereby acquired any estate of which she can be endowed, she must wait for it until the death of her husband. I am at a loss however, to see how she can ever have any dower in the premises, even if she survives her husband ; for by their own shewing they conveyed the property by deed dated the 3d of March, 1835, duly acknowledged by her, to James B. Hunt, who on the next day conveyed the same to her; so that if she has any right at all, it is to the premises in fee; and not a mere right of dower. But her title can avail the defendants nothing in this action, since, such as it is, it was derived from Joseph Wilson the tenant of Rice, under whom the lessor of the plaintiff claims.

Lastly, it is insisted that the judge erred, in admitting the plaintiff to read in evidence, the deed from Jane Wilson, now Jane Bilderback, to Joseph Wilson, for her dower, as the widow of Ward Wilson the mortgagor. And the argument is, that the plaintiff must recover upon the strength of his own title- and not on the weakness of his adversary’s. But I do not see the application of this rule to the present case. The plaintiff makes out a prima facie right to recover: the defendants set up a pretence that Jane Bilderback is entitled to dower as the widow of the mortgagor: to'rebut this, the plaintiff shews her own deed, assigning all her right of dower to Joseph Wilson, the very person under whom the defendants now claim, and as against whom and all claiming under him, the plaintiff is entitled in this action to recover.

Upon the whole, I see no reason to disturb the verdict, and think the rule ought to be discharged with costs.

Fobd, J.

On a motion made by the defendent to set aside a verdict obtained by the plaintiff, the case appeared as follows : Ward Wilson being seized in fee of the premises in question, by deed of the 11th of May, 1830, mortgaged them to Washington Rice, to secure the payment of a bond which he gave to'him, of the same date, for five hundred dollars, and shortly afterward died, leaving his widow Jane in possession, who after some time, intermarried with Bilderback, and then he and his wife transferred their possession and her right of dower to Joseph Wilson, by deed of 1st April, 1834, and Wilson placed one Stephens on the premises, as his tenant. The bond in the mean time not being paid, Washington Rice brought an ejectment on the mortgage against Stephens and his landlord Joseph Wilson, wherein he obtained judgment the 19th of May 1835, and in September following, the sheriff gave him possession by virtue of a writ of habere facias possessionem, by an actual entry on the premises, and by there telling Rice’s attorney, that he delivered him possession thereof; but the sheriff did not open the dwelling house, nor know whether it was inhabited or not. Soon after the mortgagee had obtained such possession, Joseph Wilson accepted of a lease under him and became Ids tenant. Washington Rice then, by deed bearing date the 20fch of August 1835, sold and conveyed the premises to Smallwood, the lessor of the plaintiff, who, finding that one Moore had got into possession, commenced the present ejectment against him, with whom Bilderback and wife were admitted to defend as his landlords, they having obtained a re-conveyance to them of her right of dower.

The plaintiff gave in evidence all the foregoing deeds and proceedings, on the trial of the cause, except the bond, which, not being produced, the defendant considered his title under the mortgage, as incomplete, and moved for a non-suit, but it was refused by the court, and the jury found a verdict for the plaintiff, which the defendant moves to set aside on two grounds.

First. That the plaintiff’s title failed by reason of the bond not being shewn ; the mortgage being no more than security for the payment of a certain debt, which the court cannot pre-sume to exist, unless the bond which is the only proper evidence of it, be shown. This objection does not appear to me to be fatal to the plaintiff’s documentary title. But if it was, he would still have a right to recover on his possession, if it was better and prior to that of the defendants’. Now, Bilderback and wife had conveyed their possession to Joseph Wilson, who had surrendered the same to Washington Rice, by taking a lease as tenant under him, and Washington Rice had conveyed and delivered the same to the lessor of the plaintiff, Smallwood, who held and united all their possessions peaceably in himself. It is said that the sheriff did not deliver the premises legally to Rice, for that Joseph Wilson might have been in the house, which the sheriff did not enter; but the sheriff testified that he put Rice in possession, and there was no evidence to the contrary. It is no more than a supposition, that Joseph Wilson was then in the house; and if true, it only strengthens the case; seeing he afterward surrendered his possession to Rice, and came in as his tenant.— So that all their possessions had been voluntarily, yielded up to Rice, and concentrated in the lessor of the plaintiff; I see, therefore no ground on which his prior and better possession can be controverted, unless it be

Secondly, That the dower-right entitled Bilderback and wife, ■by law, to hold the premises until dower should be assigned to her. The case of Den v. Dodd, that a widow, remaining in possession from her husband’s death, shall have her quarantine continued until dower is assigned to her, and cannot be dispossessed by ejectment, till that is done, either at the suit of the heir or any other person claiming under the husband subsequent to the marriage, was founded on the common law, and two years afterward, the same principle, was enacted by statute (Rev. Laws, 397, Sec. 21,) that until dower be assigned to the widow, it shall be lawful for her to remain in the mansion house and plantation, without rent; but neither of them compels her to remain ; she may give up the possession voluntarily, and go when, and where, she pleases; it being a personal privilege to herself; and if once she moves out voluntarily and depart, it is gone forever under the statute, and her dower is reduced to a naked right, only to be recovered by an action at law. If she sells her right of dower, as was done in this case to Joseph Wilson, and voluntarily gives up the possession, the statute gives her no right of entry afterward on a stranger in peaceable possession; so that her subsequent entry into Smallwood’s rightful possession, was unlawful, and exposed her to be turned out by ejectment.— She has no right of entry till she obtains it by means of a writ of dower. Therefore this verdict, in my opinion, ought not to be disturbed, and the rule to shew cause must be discharged.

Dayton, J., concurred. White, J., gave no opinion, having been counsel in the cause.

Rule discharged.  