
    Combs and Hayne vs. Young’s Widow and Heirs.
    The right of the widow to dower in the lands of which the husband died seized and possessed, will be preferred to that of creditors of the husband.
    An equity of redemption is not such an estate as can be proceeded against and sold in the hands of the heir, by an execution at law, founded upon a judgment against the ancestor or his personal representative.
    The rents and profits received by the heir, cannot be recovered by the creditor of the ancestor by a proceeding under our act of 1784, ch. 11, or otherwise. The heir takes them for himself, discharged of any liability to be appropriated for the debts of the ancestor.
    To support a judgment against an heir upon a scire facias, there must be a personal service of the sci. fa. upon the heir, (though a minor) and upon his guardian. Service upon the guardian alone is not sufficient.
    The record shows, that at the August term of the circuit court for Giles county, in 1827, the plaintiffs recovered a judgment quando acciderint against the administrators of N. Young for $449 58. Upon this judgment a sci. fa. issued against the widow and heirs of said Young. The heirs being under the age of twenty-one years, it was served upon the guardians of the minors, and the writs returned to the circuit court of Giles county. The guardian came, and for cause showed by plea, that nothing but a house and lot had come to their possession by descent from said N. Young, deceased; that the legal title of said house and lot was not vested in said N. Young at his death, but that the same was vested in A. Y. Brown and John H. Camp; that only an equity of redemption descended to the heirs of said Young; and that some rents for the use of said heirs were receive ed before the issuance of the scire facias. The plaintiffs, in their replication, admit that the legal estate did not descend, but reply that four hundred and seventy-five dollars of rents and profits came to their hands, for the rents and profits of said house, which are unaffected by said Brown and Camp’s mortgage, and pray execution thereof. To this replication the defendants demurred* The circuit court sustained the demurrer and gave judgment for the heirs; but the widow not appearing, judgment was rendered against her for plaintiffs’ debt, tobe levied of the lands, &c. of her late husband in her possession.
    
      Combs, for plaintiff in error,
    contended, that the widow was not entitled to dower in preference to the creditors of her husband; that the policy of our laws has been to make all kinds of property, real as well as personal, subject to the demands of creditors; that the widow’s right to dower was by virtue of the act of 1784, ch. II, subject to the debts of the husband. It was the intention of that act to give her dower in cases where the husband died seized and possessed of the lands; but still, as the land was subject to pay the debts of the husband, by virtue of the statute of George II. creditors had a prior right to her. At all events, he considered it clear, that the rents and profits in the hands- of the guardian, were subject to the plaintiffs’ demand.
    
      
      J. S. Yeraer. for defendants m error.-
    For the cíe-iendants m error, it is insisted, that there is no error in the record of the decision of the' circuit court; because-,,
    1 • No estate, subject to execution at law, descended to Young’s heirs; it was a mere equity of redemption; it was theirs only upon condition that they paid the redemption money. It was assets in the hands of the heir which could be reached in a court of equity, but not in a court of law, by execution on a scire facias 2 Atk. Rep. 290: 2 Vernon Rep. 61: 3 Bac. Abr, 59, (in note:) Toller on Ex. 414, 415.
    Against the- deceased himself, an execution at law could not sell a bare equity of redemption, or equitable estate;, and the judgment on a scire facias against the heir, would be that the judgment against the ancestor be satisfied out of the land's descended to the heir. At law this judgment can only be carried into effect by execution; and the fieri facias only operates upon legal estates. Shut© vs. Harder, 1 Yerger’s Rep. -1: 5 Hay. Rep. 92: Lipe vs. Mitchell, 2 Yerger’s Rep. 400.
    2. Whether the estate descended, was or was not assets in the hands of the heir, subject to an execution at law, can make no difference in the determination of this case. The rents and profits of either legal or equitable estates descended, cannot be recovered or subjected on a judgment against the heir, on the scire facias, that the creditor have execution of his judgment of the land descended, The rents and profits are no part of the land descended; they are the mere incidents to the descended fee, to be received by the heir as the owner of the land in his own right, as his own personal property. They are not taken by descent, but in right of property and soil, being the issues of the land severed from it, and applied by the heir before the creditor of the ancestor has attached a lien upon the land, or disseized the heir by judgment, execution and sale. This is so at the common law, and is most cleariy so by our act of 1784, oh. 11. Gibson et al. vs. Farley et al. 16 Mass. Rep. 280.
    In this case, this argument is strengthened, because the ients and profits were received before the scire facias issued, and before any judgment was had binding the land. The heirs received them, not in descent from the ancestor, but in their own right as owners of the land, or of the equity of redemption, which right to the rents and profits continues, at least till judgment against them, that the creditor have execution of his judgment of the land descended. The land in this State is not bound, until judgment against the party to be charged is had, and the rents and profits only, after a sale under an execution upon the judgment. That judgment, the record in this case shows, was only attempted to be obtained, after the rents and profits in controversy were received by the heirs. 3 Wilson’s Rep. 526: 1 Blac. Com. 94, 130: 16 Mass. Rep. 280.
    When the ancestor died, the plaintiffs were only contract creditors of the ancestor, without any lien upon the ancestor’s land; consequently, the land descended to the heirs without any lien attached, but liable to the ancestor’s debts, provided there should be no personal assets. Tire judgment against the administrators gave no right to the creditor against the land descended in the hands of the heirs; the heirs did not take under them, but in their own right by descent from the ancestor, liable to be charged to the quantity of land descended, and nothing more. To make the rents and profits that were received before execution and judgment binding the land, liable to the payment of the ancestor’s debt, would be to give the same effect to a contract, that a judgment, execution, and sale of the land would have. The land is only bound and liable for the debts of the ancestor, when judgment goes against the heirs, and they become the debtors of the ancestor’s creditors; and this judgment binds the rents and profits received after a sale of the land, or at most from the levy, and not before. It would be calling on the judgment debtor to account at law and make him a trustee for rents and profits which he received in his own right, previous to the judgment, levy of execution, and sale under it, and before the creditor’s right of entry on the land accrued, which cannot be; because a person, to be entitled to claim the rents and profits of land at law, must be entitled to the entry, which can only be when he is clothed with the legal title. It would be the same as calling upon mortgagers to account for rents and profits received before condition broken, or entry by mortgagee, which cannot be done. The heirs take the equity of redemption and land in fee simple, with the debts of the ancestor liable to be charged upon it, in the event of a failure of the personal assets of the ancestor, and are entitled as of their own property and in their own right to the rents and profits, until judgment against them and execution levied, and sale of the land made. 16 Mass. Rep. 285: 4 Kent’s Com. 158.
    If these heirs had paid out these rents and profits, could the creditors of the intestate recover their value from the person to whom the heirs paid the money, as an executor de son tort 9 Or if the administrator had paid them to creditors of the intestate, could he refuse to account for them to the heirs ? Surely not; the rents and profits are no part of the intestate’s estate, but are the incidents to the fee or reversion, as the case may be, which descends to the heir, and the administrator would be considered as receiving them for the heirs, and would be constituted their trustee. 16 Mass. Rep. 286: 3 Bac. Ab. 61, 62.
    At the common law, the heir was liable to the amount of the value of the estate descended to him on the ancestor’s bond, and no more, at the time of its descent. If at that time the estate descended was worth $2000, and the creditor did not sue on his bond until the rents and profits had amounted to 1000, could he recover both sums? No! Why ? Because the heir received the rents and profits in his own right, as incidents to the estate which he 
      owned in fee, subject to a conditional charge, and was liable for no more than what he received in descent, which was an estate in fee worth $2000 and no more. Unless this were so, the care, industry, and prudence of the heir, which had made the estate productive, would be the reward of the delay and inertness of the ancestor’s credit- or, and cause the creditor to reap advantage, and gain from his, the heir’s, labours, what he could not have acquired if the heir had been indolent, and suffered the estate to lie idle and remain unproductive. It would be taking the gains of the industrious, and making them the reward of the indolent and negligent. 2 Kent’s Com. 415.
    The judgment of a court cannot subject any thing more in the hands of the heir, to the payment of the ancestor’s debts, than descended to him. The judgment only divests the estate of the heir descended, when rendered, and after levy of execution and sale under it is made. The heir is as much the absolute owner of the land, when no judgment is had against him on the ancestor’s debt, as if he had made an actual purchase himself. As well might it be said that the owner of land should account for rents and profits, which he received in his own right from the time of the purchase or indebtedness, after judgment and levy of execution, as to say, that the heir shall be liable for what he received of his own property, before judgment, levy, and sale of the lands descended. 16 Mass. Rep. 286.
    Again: The moment the ancestor died, the heirs became seized of the land in their own right, and being so seized were entitled to receive the rents and profits, and apply them to their own use until disseized, which, in this case, can only be by judgment, execution and sale, the right to the rents and profits always accompanying the seizin.
    3. The decision of the circuit court, so far as the heirs are concerned, must be sustained, for the reason that the scire facias was not served personally upon the heirs; service upon the guardians is insufficient, though they are minors. Roberts vs. Busby and wife, 3 Hay. Rep. 299.
    The judgment against the widow by default was erroneous, and should be reversed. No judgment could he had against her for a sale of so much of the land as belongs to her in right of dower, to pay the debts of her husband. She had a vested right to dower as soon as she was married, to all the lands of which her husband might die seized and possessed, which was oscillating, but became vested in possession immediately on his death, and could not be divested by a judgment against him in his lifetime, or against his administrator after his death. She was entitled in preference to creditors, because her right attached immediately upon her marriage, overreaching the right of the creditor. The creditor’s right to the land .for satisfaction of his debt, upon judgment rendered against the intestate in his lifetime, or his heir after his death, is subject to the widow’s right which became fixed by the death of the husband, and cannot be divested by a judgment against the heir. She takes the life estate as against the heir; and the judgment against.him is that the credit- or have execution of the land descended, which descended encumbered with the life estate.
    At the common law, the right of the widow to dower not only overreached creditors, but was considered superior to the claim of a bona fide purchaser of the land, and overreached his title likewise. 2 Black. Com. 129, 130, 132: 1 Thomas’ Coke, 576: 7 Co. Lit. 31 a: 4 Co. Rep. 65. 5 Resolution in Falwood’s case: 6 Resolution in the same: 1 Thomas’ Coke 567.
    Our statute of 1784, ch. 22, sec. 8, does not intend to abridge the right, but to narrow the property to be covered by the claim for dower, by divesting the widow of her dower, upon sale by the husband, bona fide, in his lifetime. 1 Scott’s Rev. Laws, 295.
    The widow is seized immediately by the act of the law, and the estate being cast upon her in her own right, as a _ purchaser for value, for m that light is she considered uni , , ,. , . . , , der our statute; she cannot be divested ot it but by su~ perior title, which cannot be in this case, because the judgment attached no lien upon the land as against her, unless the same were sold in the lifetime of the husband, and before that time her right to dower accrued, and her right to the one third part of the lands of which her husband died seized and possessed, had vested by the husband’s death in her.
    It matters not what kind of estate in land the husband had at his death, whether legal or equitable; the widow is still entitled to dower by our act of 1823, ch- 37, sec. 4. 1 Haywood and Cobbs’ Rev. Laws, 77.
    
      F. B. Fogg and Bramlitt argued on the same side.
   Catron, Ch. J.

delivered the opinion of the court.

A motion was made against the administrator, who had fully administered; the fact was found for him; then a scire facias was run against the heirs of the intestate to subject the lands descended to the satisfaction of the judgment.

To this suit by scire facias, the widow was made a party for the purpose of subjecting her life estate to one third of the lands descended, as tenant in dower. Judgment was given against her, which she seeks to reverse.

This raises the question as between the widow and creditor of the husband, who does the law prefer? To understand this, the nature of an estate in dower must be enquired into.

A tenant in dower is where the husband is seized of an estate of inheritance, and dies. In this case, the wife shall have a third part of all the lands and tenements whereof he was seized, at any time during the coverture, to* hold to herself for the term of her natural life. 2 Black. Com. 129: Co. Litt. 31. a. By the common law, if a husband acquired an estate, which was subject to descend to his heir, the wife, at the same time the husband acquired his mle, had vested m her a right of dower; and although the husband aliened the estate the next hour, it mattered not. The wife, on the husband’s death, was entitled to dower, notwithstanding the alienation. 2 Black. Com. 132: 1 Thos. Co. Litt. 576. We seethe widow’s title was superior to that of the purchaser. And why was this so? For the very plain and sensible reason, as Blackstone tells us, that the sustenance of the wife, and the nurture and education of the children, was of higher consideration than the protection of the purchaser. 2 Com. 130.

The widow by the common law, having precedence of the purchaser of the husband, it follows, she would have equal precedence as against the judgment creditor of the husband, who by force of his judgment, execution and sale, could only acquire such title as the husband could have made^ by deed. By a fiction of law, the estate in dower relates to. the marriage. It is adjudged in Ful-wood’s case, (4 Co. -65,) that the widow shall hold her dower discharged from all judgments, leases, mortgages', •or other incumbrances made by her husband after the marriage, because her title being consummated by his death, has relation to the time of the marriage, .and of course is prior to all other titles. She claims by and through her husband, has the oldest title, is in under him for the valuable consideration of marriage, the best respected in the law, and cannot be disturbed by any other claiming under the husband. 4 Co. 66, 6th Resolution.

These being the common law rights of the widow, how far have they been altered by statute? This depends mainly upon the act of 1784, ch. 22, sec. 8. That act tells us, that whereas, the dower allotted by law in lands, for widows, in the then unimproved state of the country, was a very inadequate provision for the support of such widows; that it was highly just and reasonable that those, who, by their prudence, economy and industry, had contributed to raise up an estate to their husbands, should be entitled to share in it.. It then provides, the. widow shall have the right to dissent to the husband’s will, and be entitled to retain the homestead. This was well, and in accordance with the liberal professions in the caption. But in the same breath the legislature sweeps from the wife her previous rights, and puts her in the power of the husband, to an extent abhorred by the common law, and yet more by the civil law, (Thomas’ Co. 567, a.) by enacting, that the widow shall be entitled to dower of one third part of all the lands and hereditaments of which her husband died seized or possessed; not of the lands of which he was seized at any time during the coverture; thus preferring the purchaser from the husband. Few provisions in our statute book have been fraught with worse consequences than the repeal of the principle of the common law, founded on the wisdom of ages; so ancient that neither Coke nor Blackstone can trace it to its origin; wide spread as the Christian religion, and entering into the contract of marriage among all Christians: the husband on the most solemn occasion of his life, contracting that of all his worldly goods he endows the wife.

All these high sanctions of the first 'of rights of married women, are set at naught by the act of 1784, so celebrated in other respects. Widowhood and poverty in the State of Tennessee, are associated in the- mind, with but now and then a partial and rare exception, to relieve our suffering sympathies from the general misery. The affluent wife reduced in an hour to the impoverished widow, presents a contrast, which, for bold abruptness, has few parallels in the ordinary misfortunes incident to human life. Cut off from dower, at the freak, or by the occasional ill will or dissipated habits of the husband, until nothing of the real estate, worthy the name of dower, is left to her on his death; allowed the sorry pittance of a child’s part of the personal property, with generally a large and often a helpless family of children on her hands, neither energy nor dignity of conduct can be expected from the widow, or is possible in most cases. The children are of necessity raised in accordance with the des- . . J r , , T ,. . , titute circumstances oí the mother, it matters little that they have property; to her they look for support and education. Not so much at the school, as in the well ordered family, are children educated; there it is that morality, industry and propriety should and must be mainly taught. To this end the widow’s means are greatly inadequate in this State; wholly so in most instances. But too often she is driven into a second marriage, the most unadvised and unfortunate, ruinous to her peace and the prosperity of her children, to.escape from her poverty stricken wretchedness. This is not the least misfortune to the community, attendant upon thepolicy that sacrifices the ancient rights of the.widowtothe purchaser from the husband. Did the act of 1784 intend the creditor at the husband’s death, should also be let in to defeat the widow’s vested right? The act does not say so; and if the creditor be let in, it must be by a construction in his favor. It should be recollected, the husbands cut off the wives by the act of 1784, as to the purchaser, without any compensation, save the flattering encomium in the caption, “ that it was highly just and reasonable, that those who by their prudence, economy and industry had contributed to raise up an estate to their husbands, should be entitled to share in it:” And we are told that by common consent, the creditor has also been allowed to seize upon the dower of the widow. Now, if the act of 1784 intended the widow “should share in the estate she helped to build up,” it is certainly true the dower claimed is of the description set forth, being a hereditament of which the husband died seized. No exception in favor of the creditor is made by the statute in express terms; and we have endeavored to show none ought to be made by implication; that no case could be adduced where a statute should be more strictly construed in favor of a common law right, than one depriving the widow of the ancient and cherished right of dower. The widow’s right stands on the same foot it did previous to the passage of the act of 1784, in reference to the lands of which the husband died seized. The right relates to the marriage, and the widow is a purchaser for a valuable consideration, not to be disturbed in law or equity. 1 Dev. Rep. 30. The heir takes the land subject to this incumbrance; it is a title superior, because prior to his. The creditor by the act of 1784, ch. 11, is authorized through the administrator, to reach the real estate descended; against whom? Not the widow. But he is to have judgment against the heir,.and execution is to issue ‘‘against the real estate of the deceased debtor in the hands of the heir.” The land, in the condition it descended to the heir, incumbered with the widow’s dower, the creditor can reach as was done in Fulwood’s case. 4 Co. 65. As to the widow, the judgment must be reversed and she go hence.

2. For the defendants in error, the heirs of Nathaniel Young, it is affirmed, that no estate subject to execution at law, descended to them from their father; that the equity of redemption was a mere equity encumbered with a condition which the heirs might or might not perforin by paying the money to the mortgagee.

We hold it to be undoubted law, that had Nathaniel Young been living, and judgment been rendered against him, the equity of redemption could not have been levied upon and sold. The fieri facias only operates upon legal titles. Sawley vs. Gower, 2 Vern. 61: Plunket vs. Penson, 2 Atk. 290. These cases show the English law to have been, that an equity of redemption is not assets in the hands of the heir, by reason of the descent, of which he could be made liable at law for the bond debt of the ancestor. To a proceeding against the heir to recover a bond debt of the ancestor, does our proceeding through the administrator against the heir assimilate itself. Vide Harder vs. Shute, 1 Yerger’s Rep. 1, 6, 7. On the. statute of 5 George II. are grounded all our legislative acts and judicial decisions, subjecting lands equally and generally for the payment of debts. It provides, that the houses, lands, negroes, and other hereditaments and estates in the plantations, shall he liable to and chargeable with all just debts, dues and demands; and shall he assets for the satisfaction thereof, in like manner as real estates are liable to the satisfaction of debts due by bond, but subject to the like remedies, as personal estates are in the plantations by seizure and sale. Hence the execution issues, commanding the sheriff to make the money recovered by the judgment, of the goods and chattels, lands and tenements of the defendant.

The statutes have rendered these liable; yet the writ is legal in its character, and only operates on a title that may be recovered by an action of ejectment, forasmuch as the sheriff cannot turn out the defendant or his tenant, and put the purchaser into' possession. The case of Harder vs. Shute, was a strong one: Harder’s interest to the land had been sold at execution sale: Shute became the purchaser; Harder had purchased from Garrison, and held his bond for title. The .naked legal title was outstanding in Garrison; yet the court held that Shute took no interest in the land that he could enforce in equity. Equity follows the law. There having been no legal liability resting on Harder, equity could create none. 3 P. Wins. 409: 2 Yerger’s Rep. 397. On this principle is grounded an undoubted rule of property In this State, in all cases of purchasers under executions, '■’■caveat emptor;” take care what you buy; there is no warranty of title, either express or implied, for your protection. 2 Yerg. 396. It is clear the equity of redemption which descended, was not legal assets in the hands of Young’s heirs. This is not so seriously urged for the plaintiff’ in error; hut,

3. It is contended, and this is the main point in the cause, that although the land cannot be reached, the rents and profits can, and that the plaintiffs are entitled to judgment against the heirs for the rents by them received from the mortgaged premises. That the heirs are in possession and have received rents, is admitted.

Without involving ourselves in the inquiry, why, if the estate descended is not liable, the rents and profits can behadhy the creditor; we will treat this point as though the premises had descended to the heirs disencumbered of the mortgage.

The proceeding was had by virtue of the act of 1784, ch. 11. The extent of her remedy is distinctly declared by the act, “ execution shall issue against the real estate of the deceased debtor, in the hands of the heir, against whom judgment shall have been given. The statute gives no rents and profits, but a right to obtain judgment, seize and sell. The heir is in as the ancestor was, enjoying for himself. The ancestor could not be called on for rent by the creditor before he had a lien by judgment or afterwards; no more can the heir. If the plain import of our statute needed the aid of authority, it is satisfactory, that tire heir is entitled to the rents and profits. 2 Atk. 107: 2 Leigh’s Va. Rep. 59: Gibson vs. Fasley, 16 Mass. Rep. 280, 285. The pernancy of the profits always accompany the seizin. So neither is the heir heard to set up a claim for improvements of the estate to the prejudice of the creditor. If the improvements exceed the value of the rents, he who made them must sustain the loss. 1 Term. 454 — 5. There are in-formalities in the pleadings, and a want of personal service of the scire facias on the minor heirs, indispensible to support a judgment against them, who do not in fact defend, but the guardians defend. Yet as the three points above adjudged are conclusive of the merits of the cause, no notice need be taken of the informalities. The judgment below, as to the heirs of Young, will be affirmed.

Judgment affirmed.  