
    
      Wytheville
    
    Bragg v. Tinkling Land and Improvement Co., Inc., and Others
    June 12, 1913.
    1. Dower—Suit to Recover—Aliened and Onaliened Lands—Parties.— In a suit by a widow to have dower assigned to her in the lands whereof her husband was seized in fee during the coverture, some of which lands were aliened by the husband during the coverture without her concurrence, where it is sought to have the whole dower assigned out of the unaliened lands in the hands of the heirs, to the exoneration of that aliened by the husband in his lifetime, the heirs are necessary parties to the suit, and it is error to make any decree in the cause on the merits until the heirs are made parties thereto.
    Appeal from a decree of the Circuit Court of Lunenburg county. Decree for tbe defendants. Complainant appeals.
    
      Reversed.
    
    Tbe opinion states tbe case.
    
      Geo. E. Allen and R. Grayson DeEhiell, for tbe appellant.
    
      Turnbull & Turnbull, Thorp & Thorp and McNeill, Hudgins & Ozlin, for tbe appellees.
   Harrison, J.,

delivered th'e opinion of the court.

W. J. Bragg died in February, 1909, and in August of that year his widow, the appellant, brought this suit to obtain dower out of certain lands described in her bill. The decree complained of denied the relief sought, and this appeal was taken.

A demurrer was sustained to the original bill filed by the appellant, and thereupon she filed an amended bill in which she states the following case: That during his lifetime, her husband was seized and possessed in fee simple of a tract of land in Lunenburg county, containing 423% acres; that by deed of trust, in which she did not unite, dated in September, 1866, her husband conveyed the tract of land mentioned to a trustee to secure debts; that subsequently her husband was adjudged a bankrupt, and the land was sold by authority of the bankrupt .court, subject to her contingent right of dow’er therein, and conveyed to the purchaser; that since this sale by the bankrupt court the land has passed into other hands, a large part of it having been subdivided into small town lots, which are now owned by numerous alienees who have improved the same; that she has never been assigned her dower in any part of the land or received the commuted value thereof; and that her right to dower in such land has never been relinquished except in a small portion thereof acquired by the Virginian Railway for railroad purposes. The bill charges that in view of the construction and operation of the Virginian Railway and the Rapid growth and development of the town of K'enbridge, a portion ■ of which is located on part of the land in which she is entitled to dower, and for other reasons, the land has become very valuable, and that it is now impracticable if not impossible to assign her dower in kind, in at least a part of the land; that about 350 acres of the original tract of 423% acres is valuable farm land, in which her dower might be assigned in kind, though with great injustice to her, and almost equal injustice to the other owners; that as to that portion of the land which has been laid, off into town lots, and on which are standing residences, stores, warehouses, churches, etc., complainant says that it is impossible to assign her dower therein in kind without great injustice to her and equal injustice to the present owners. She does not, therefore, ask to have her dower assigned in kind but insists that she is entitled to have the same ascertained and paid to her in a lump sum according to the annuity tables provided by section 2281 of the Code. The numerous alienees of the land are made parties defendant, and the prayer of the bill is that a commissioner be directed to report to the court the value of the farming land mentioned in the bill, and also the value of the town lots mentioned therein, and what damages if any the complainant has sustained by the detention of her dower, and whether the farm lands can be divided so as to assign the complainant her dower therein without injustice to her or the present owners, and likewise to report whether it is practicable or possible to assign dower in kind in the lots mentioned, and for such general relief as the complainant may be entitled to. ?

A number of the defendants filed a joint and separate answer, in which they admit that the husband of the complainant was seized and possessed of the 423% acres of' land mentioned in the bill; that such land was sold and' conveyed as alleged; find that it is now owned in part as set out in the bill. Further answering, respondents aver' that the husband of the complainant died seized and possessed of certain other lands in Lunenburg county, one tract containing 371% acres, and an undivided half interest in another tract containing 178% acres, and they insist that the dower of the complainant can be assigned. her out of these lands, and that under the law such dower must be assigned her out of the lands of which her husband died seized, if they be sufficient for that purpose, in exoneration of the lands held by the respondents. But, say respondents, if the lands mentioned in the bill are not to be exonerated as claimed, then they ask that under section 2278 of the Code the court will ascertain the values of the respective parcels of land in the bill mentioned, deducting the value of all permanent improvements made since the alienation to J. T. Tisdale (the purchaser at the bankrupt sale), and will permit the defendants to pay legal interest to the complainant annually on one-third of the value of their respective parcels, of land during the lifetime of the complainant.

The case was heard upon the bill and answer alone; the decree appealed from deciding that the dower of the complainant must be assigned her in the lands of which her husband, W. J. Bragg, died seized, in exoneration of the lands mentioned in the bill. The decree then states that no inquiry is directed because the complainant admits that her husband left sufficient lands to satisfy her dower rights, and it is, therefore, ordered that the cause be removed from the docket.

It is conceded at bar that the lands left by W. J. Bragg are in the possession of his heirs. This being so, we are of opinion that it was error to enter any decree in the cause upon the merits until the heirs were made parties. The bill states a prima facie case entitling the complainant to the relief asked, and the answer admits the facts alleged so far as necessary to establish her primary right to dower in the lands held by the respondents, but seeks to avoid such liability by transferring the burden to the land in the possession of the heirs.

We are of opinion that the heirs are necessary parties and entitled to be heard before any proper or binding decree can be made in tbe premises. The lands bought by the defendants were, as alleged in the bill, sold subject to th’e complainant’s contingent dower rights therein, and inasmuch as the defendants now seek to be exonerated from that burden by having the same transferred to the lands held by the heirs, it was incumbent upon them to file a cross-bill alleging the facts entitling them to such exoneration, and making the heirs parties defendant, so that when a decree was 'entered disposing of the controversy on its merits all parties in interest would be concluded thereby.

The decree appealed from must be reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed.  