
    Amanda J. Kennedy vs. Samuel McAliley.
    A plea in dower, that demandant’s late husband was indebted to defendant — that he died possessed of a considerable personal estate Which demandant took possession of and wasted and converted to her own use, whereby defendant lost hití debt, is no bar to the action.
    A plea in dower, that before commencement of suit defendant had “bargained and sold” the land to W. M., who was then put in possession and has continued in possession thereof, from thence hitherto, is no bar to the action.
    Summons in dower lies as well against the tenant for life, or in fee, as against the person in possession.
    An allegation that the land was “bargained and sold” to W. M., and that he was put in possession thereof, does not import a conveyance to W. M. by deedrr-it imports a mere contract of sale.
    BEFORE GLOVER, J., AT CHESTER, SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows :
    “In this action the demandant seeks to recover from the defendant dower in a lot of land lying in the Town of Chester.
    “The defendant filed the following pleas in bar to the recovery.
    “ And the said defendant by McClure, his attorney, for further plea in this behalf says, that the said demandant ought not to have or maintain her action aforesaid thereof against him, because he says, that before the commencement of said suit, to wit: On the-day of August, in the year of our Lord, one thousand eight hundred and fifty-four, at Chester Court House, aforesaid, the said defendant had bargained and sold the said lot of land in which dower is claimed, to one William M. McDonald, and the said William M. McDonald, was at the time aforesaid, put in possession of said-lot of land, and has continued in the possession thereof, from thence hitherto; which he is ready to verify, wherefore he prays judgment if the said demandant ought to have or maintain her summons in dower against him aforesaid.
    
      “ And the said defendant for further plea in this behalf says, that the said demandant ought not to have her dower in the premises aforesaid, because he says that George P. Kennedy in his life-time and at the time of his decease, was indebted to the defendant in the sum of one thousand dollars, for rent then due and owing for the Hotel in Chester the property of the said defendant, and that the said George P. Kennedy, at the time of his death was possessed of a large amount of goods and chattels, consisting principally of furniture, in the American Hotel in the city of Charleston, to the value of five thousand dollars, and that the said Amanda J. Kennedy, immediately after the death of the said George P. Kennedy, seized, took and carried away, and secreted, and converted, to her own use the principal part of said furniture, to wit: To the value of five thousand dollars, to wit: On the-day of ¡-, in the year of our Lord one thousand eight hundred and fifty-three, at Chester Court House, aforesaid, and thereby defrauded the legal representatives of the estate of George P. Kennedy out of the means of paying the debts of the said George P. Kennedy, and among them the debt due to this defendant. — And the defendant avers that the said A. J. Kennedy is utterly insolvent, so that no recovery or satisfaction for the said seizing or converting the assets of her said husband to her own use, could be had or made against her, and that by reason of the wasting of the assets of The said G. P. Kennedy by the said Amanda J. Kennedy, as aforesaid, the administrator has no means wherewith to pay the debts of the said intestate, and the debt for rent due to this defendant has been wholly unpaid, and no assets are in the hands of the said administrator to pay the same, to wit: At the place aforesaid.
    “ All of which he is ready to verify, when, &c., and prays judgment if the said demandant ought to have or maintain her action aforesaid thereof against him.
    “ The demandant demurred to the pleas, and the defendant joined in demurrer. I decided that the pleas of the defendant and the matters therein contained, are not sufficient in law to bar the demandant from recovering her dower, in and to the lands described in her declaration.”
    The defendant appealed and now moved this Court to reverse the decision of the presiding Judge sustaining the demandant’s demurrer.
    
      Me Lure, for appellant. ■
    
      Patterson, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The second plea, beyond all doubt presents no bar to the demandant’s claim of dower ; and is therefore bad on general demurrer. '

It may be, that on the facts stated in it, she is liable as executrix de son tort of her deceased husband, but such a liability can in no way affect her right to dower.

The first plea is, I think, also bad. The 7th sec. of the 67th title (Dower,) 1 Brev. Dig. 270, directs, that the summons in dower shall be directed, 1st, to the heir at law, (if of full age); 2d, if under age, to his or her guardian; 3d, if there be no guardian, to the executor or administrator of the deceased; 4th, to any person or persons who may be in possession.

There is, I think, no doubt under this last provision, that the summons in dower may not only go against the tenant in- possession, but also against the tenant for life, or in fee, or either of them. Plantt vs. Payne, 2 Bail. 319. For the proceeding in dower is quasi a real action; the judgment is necessarily in rem; and all, who are..interested in it, having the right to be heard before the dower is .assessed or assigned, may be made parties. The respondent here, is properly called on to show cause, unless he had parted with the fee. His plea must legally show that fact. It is defective in this particular. For it alleges that the respondent “bargained and sold” the lot to W. M. McD., and put him in possession. This does not import a deed; and in this respect nothing short of a full and proper description will suffice. To this point the authorities of Jefferson vs. Moreton, 2 Saund. 11, and Howell vs. Forest, idem. 47, n. 48, a, m 1, are full and decisive.

The words “bargained and sold” with delivery of possession are satisfied by a mere contract of sale. It is true, if the respondent had said, that by deed he had bargained and sold and had delivered possession, it might have been sufficient. For at common law, and under the statute of uses such a deed would convey the fee.

Under our Act of 1795, 1 Brev. Dig., tit. 51, sec. 40, to make a good description of a conveyance it is necessary to set out that the grantor by deed did “grant, bargain, sell and release.”

. No words in the plea meeting either of these requisites, it follows, that the respondent is not discharged. For his plea admits he owned the fee, and that instead of conveying it before service of the summons, he had merely contracted to sell it to W. M. McD., and placed him in possession. This legally made W. M. McD. the tenant of the respondent, and the possession his.

• It is true W. M. McD. might have been summoned, and perhaps the better course would have been to have summoned him as well as the respondent.

But that is not necessary to the point before us. The defendant’s plea does not excuse him from answering; he is properly a party.

The demurrer was properly sustained.

The motion is dismissed.

Wardlaw, Withers, Whither, Glover and Muhro, JJ., concurred.

Motion dismissed.  