
    Martha A. Card, Respondent, v. George P. Pudney, as Executor, etc., of Avis Scarritt, Deceased, and Trustee, Appellant, Impleaded with Others.
    
      Action for dower in land held by the decerned husband as a co-tenant with another — the judgment must be limited in its effect to his undivided interest.
    
    In an action by a widow to recover dower in land of which her husband died seized as tenant in common with another, the court can only direct a sale of the undivided interest of the husband in which .dower is claimed.
    "Where the complaint in such an action does not indicate any intent .on the part of the plaintiff to seek a judgment affecting the interest of the husband of the co-tenant, the fact that the latter did not appear or answer in the action affords, no ground for denying his motion to modify an interlocutory judgment entered in the action by striking therefrom tile part thereof which provides for a sale of the co-tenant's interest and charges the same with one-half of the costs of the action.
    Appeal by the defendant, George P. Pudney, as execntor3 etc.,, of Avis Scarritt, deceased, and trustee, from an order of the Supreme Court, made at the Broome Special Term and entered in the office-of the clerk of the county of Chenango on the 1st day of March,. 1899, denying his motion for a modification of the judgment entered in the action by striking out and. expunging from said judgment all direction, power and authority therein conferred upon the referee therein named, to sell the right, title and interest of the said defendant, as executor, etc., of Avis Scarritt, deceased, and trustee, in and. to the lands and premises in said judgment described.
    
      George P. Pudney and George W. Marvin, for the appellant.
    
      John W. Olvureh, for the respondent.
   Putnam, J.:

This action was brought by the plaintiff to recover dower in an. undivided half of lands described in the complaint, of which her husband, John Card, on. the 27th day of May, 1896, died seized. The other undivided, half of said ^premises was then owned by AvisScarritt, who subsequently died, and George P. Pudney has succeeded to her title. The defendant Pudney did not serve an answer in the action, or appear until after the entry of the judgment therein. The judgment provided for a sale of the whole premises, including-the interest of the defendant Pudney therein, and for the payment; out of the proceeds of the costs and expenses of the action, and after-such payment, for a division of the remaining proceeds, one-half thereof to the defendant Pudney, and the other half, after satisfying a mortgage of $250, which was a lien on the undivided half of the premises of which John Card died seized, to his widow and heirs.

■ The defendant thereupon moved to amend the judgment by striking out the provision for a sale of his undivided interest in the= land in question, and the provisions charging-him or his interest in. the land with one-half of the costs and expenses of the action. This appeal is taken from an order denying such motion.

The action was brought to recover dower in the undivided one-half of lands of which the husband of the plaintiff died seized. The other undivided half of said premises, owned by the defendant as a tenant in common, was not subject to any claim of the plaintiff for dower. She had no right, title or interest therein. There was. no averment in the complaint, or in the prayer for relief therein, indicating a purpose on the part of the plaintiff, by the judgment to be entered in the action, to affect the interest of the defendant in the land in question. He, therefore, ivas not called upon to serve an answer or defend the action. He might properly assume that his interests as a tenant in common could not be affected in an action to recover dower in the undivided half of the premises owned by John Card at the time of his decease, and in which the defendant had no interest, especially as the complaint did not contain any averment or prayer showing that the plaintiff sought in the action to affect' his rights as a tenant in common.

It was no ground, therefore, for denying the defendant’s motion, that he did not appear or answer, or apply for a modification of the judgment until after the .entry thereof.

The plaintiff was entitled to dower in the lands of which her husband died seized, an undivided half of the premises described in the complaint. It was to recover such dower that the action was brought. The proceedings in actions for dower are regulated by article III, title I, chapter 14 of the Code of Civil Procedure. We are unable to find in the article referred to, or in any other statutory provision, authority for the judgment entered in this action, as far as it provides for a sale of the defendant’s undivided one-half of the land in question, and charges him with one-half of the costs of the action. The action related only to an undivided one-half of the premises which the plaintiff’s husband owned at the time of his death, and not to the other undivided one-half thereof, then owned by Avis Scarritt. The plaintiff had no right, title or interest in such undivided one-half, and the statute, under the provisions of which the action was brought, gave the court no power to direct a sale of any other lauds except those in which the plaintiff was entitled to dower.

In an action' brought by a widow to recover dower' in land of which her husband died seized as tenant in common with another, if the judgment provides for a saje, as in-this case, there is no good reason , why the undivided interest, of which the deceased died seized as a tenant in common, should pot be brought to a sale, the purchaser receiving the same title as that which the husband had at the time of his death. As the statute appears to confer no power on' the court in such an action to direct a sale of the undivided interest of a tenant in common with the deceased, so no sufficient reason or necessity exists why such a sale should be attempted.

When, in such an action, the judgment provides for an assignment of dower, it has been held- that such an assignment will not affect the property of a tenant in common with the deceased. “ When, from the nature of the husband’s interest in the property, there can be no assignment in seveiralty, an assignment by metes and-bounds will be disjjensed with; as "where the lands out of which dower is" to be assigned are held in common, in which case the dower interest is to be assigned to-be held in common with the heir and other tenants.” (10 Am. & Eng. Ency. of Law [2d ed.], 176.)

“ Where the husband died seized of an undivided interest in land as a tenant in common with others, his widow can not have her dower set off by metes and bounds, but is entitled to have the third part of the share of her husband, to hold in common with his co-tenants. Her dower must be assigned in common, as she can not have it otherwise than as her husband held Ijis estate.” (Hart v. Burch, 130 Ill. 427. See, also, 1 Washb. Real Prop. 155; Blossom v. Blossom, 9 Allen, 254, 256; Smith v. Smith, 6 Lans. 313.) Where a judgment provides for an assignment of dower, it is not necessary in every case to assign by metes and bounds. (Van Gelder v. Post, 2 Edw. Ch. 577, 579; Code Civ. Proc. § 1613.)

A careful examination of the provisions of article III", title I, chapter 14 of the Code of Civil Procedure, we think, shows that it contains no authority for the judgment entered in this action, as far as the judgment affects the rights of the defendant as a tenant in common of the land of which John Card died seized. The plaintiff was entitled to have her doweii assigned in those lands, in an undivided half of the premises described in the complaint, or to a judgment providing for a sale thereof, but not for a salé of the defendant’s interest in said premises as a tenant in' common, which were not and could not be affected by the action.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  