
    Marable vs. R. and J. Jordan.
    Where the wife dies without issue the husband has'no claim against those who inherit her real estate for the value of improvements placed on it, though made with her •assent and approbation.
    This bill was filed in the Chancery Court at Clarksville by Marable against Robert and John Jordan.
    The bill alledges, that on the 22nd day of February, 1842, he intermarried with Mary W. Jordan; that she was seised and possessed of a tract of land lying on Cumberland river, containing two hundred and twenty-three acres; that it became necessary to erect a dwelling-house thereon for his residence, and that he did procure the erection of a valuable dwelling-house thereon, which made the said tract of land the more valuable to the extent of such outlay; that in about eleven months after the marriage the said Mary his wife died without issue, leaving brothers John and Robert; that said John and Robert demanded the land of him, which he was willing to surrender on payment of the sum of money which he had expended in the improvement of the place; that said Robert and John had thereupon instituted an action of ejectment against him in the Circuit Court of Montgomery county, &c.
    The bill prays an injunction and an account, &c.
    The defendants demurred to the bill.
    The demurrer was argued before Chancellor McCampbell, at the March term, 1844.
    He-dismissed the bill, and complainant appealed.
    
      Garland and Meigs, for complainant.
    
      Fogg atid Boyd, for defendants.
   Reese, J.

delivered the opinion of the court.

The wife of the complainant in her lifetime was the owner in fee of a tract of land. Upon this tract the husband made considerable improvements, adding to the value of the estate. The wife died without giving birth to a child; so the complainant did not become tenant by the courtesy.

He files this bill against the defendants, the heirs at law of the .wife, to be allowed, and to obtain a decree for the amount of amelioration upon the estate made,by him.

The counsel for the complainant insists that he is entitled to it upon principles of natural and general equity, as having conferred upon the defendants a benefit which they ought not, in conscience, to receive and enjoy without remuneration. He argues, that if the improvement had been made upon the lands of any other owner than a wife, with the contract, consent and acquiescence of the. owner — or if even a wife had a trustee, by contract with such trustee — then his claims for compensation would be maintainable, as falling within the principle of decided cases: and that the sustaining principle of such cases applies also to this, namely, that it is against conscience for the owner to receive and enjoy a substantial benefit, created Iona fide at the expense of another, without remunerating him for such expense.

Without enquiring to what extent, or upon what principle compensation would be allowed, or whether in some of the supposed cases it would be allowed at all, we remark that this case differs from the others above stated, in the controlling fact that the wife could make no contract, could give no consent, could be affected by no acquiescence; because, by an elementary principle of the common law, which a court of chancery cannot abrogate, the legal existence of, the wife is merged in, and incorporated with that of the husband.

It results from this principle, that if the husband wish to improve the real estate of the wife before he is tenant by the courtesy initiate, he must risk the continuance of her existence or the birth of a child, to indemnify him for his expenditure.

The Chancellor’s decree sustaining the defendant’s demurrer and dismissing the bill, must be affirmed.  