
    
      Sarah Lamar, for Evan Prothro, vs. W. & J. Scott.
    
    Dower, before it is assigned and set apart to the widow, is not an estate or interest in land, which can be assigned or sold, so as to vest the legal title in the assignee or alienee, and enable him to sue therefor in his own name.
    The Court, however, will take notice of and protect die rights of such an assignee, and sustain an action, for his benefit, in the name of the widow.
    
      The alienee of L. brought trespass to try title for the land; pending the action, the defendant procured from the "widow of L. a conveyance to him of all her estate in the land; the alienee recovered, and the defendant, then, for his own benefit, brought, in the name of the widow, an action for her dower against the alienee. Held, that the recovery in the action of trespass to try title was no bar to the action for dower.
    
      Before Frost, J., at Barnwell, Spring Term, 1851.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ Declaration in dower. By six several pleas, the defendant made as many defences to the demand. The first plea denied the marriage ; the second denied the seizin; the third affirmed that the demandant had elected to take a distributive share of her deceased husband’s estate, in satisfaction of her dower ; the fourth, that the demandant had renounced her dower; the fifth, alleged, in bar of the action, that the demandant had assigned her dower to Evan Prothro ; and the sixth, that the husband of the demandant was, at the time of his death, domiciled in the State of Georgia, and, by the law of that State, the demandant was barred of her dower, by the alienation of the land by her husband. To the sixth plea demandant demurred, and by the judgment of the Appeal Court, the demurrer was sustained. The demandant demurred to the fifth plea. On the former trial of this case, judgment was given for the demandant, on this demurrer. The decision was not then made the subject of appeal, because, on the Circuit, judgment was rendered for the defendant, on the demurrer to the sixth plea; and the demandant carried up the case on appeal.
    “ The marriage and the seizin of George Lamar, of the tract of land in which dower is demanded, were proved. There was no evidence to support the third and fourth pleas.
    
      “ The defendant offered, in evidence, the assignment of dower from Sarah Lamar to Evan Prothro, dated 14th March, 1842, and attested by two witnesses. By that deed, Sarah Lamar ‘ demised, released and quit-claimed all the estate, right, title, interest, use, trust, claim and demand whatsoever, both in law and equity, which she has or may have to the tract of land ’ in which dower is demanded, so that neither she nor her heirs may claim any interest,’ &c. in the tract, but the said Sarah Lamar, from all estate, right, title, property and demand in the said land, shall be forever excluded and barred.’ The defend' ant also produced a judgment in favor of the plaintiff, in an action of trespass to try title. — John ¡Scott vs. Evan Prothro, entered at Spring Term, 1845. The writ in this case had been sued out the 12th October, 1841. In this action, John Scott, the father of the defendants, to whom George Lamar had conveyed the land in 1825, recovered from Evan Prothro the tract of land in which dower is demanded.
    “ On the demurrer to the fifth plea, judgment was given for the demandant, because a right to dower may be assigned ; and the action is well brought in the name of the assignor, for the use of the assignee ; and if the assignment of Sarah Lamar to Prothro, of her dower, were void, and transferred no interest, the action might be maintained for her benefit, and the naming, in the suit, of Evan Prothro, as the person beneficially interested, might be treated as a nullity.
    “ Sarah Lamar having no interest or estate in the land, except her right to dower, the terms of the deed, though not the most apt to express an assignment of dower, were held to operate an assignment of that interest in the land. It did not appear that Evan Prothro, at the date of the deed, or since, had any estate in the land in which, by the assignment of Sarah Lamar, her claim for dower could be extinguished, or be merged by a release. Evan Prothro was a mere stranger, so far as the title to the land was concerned, and if Sarah Lamar’s dower could be assigned, Prothro claimed as an assignee of that interest only in the land.
    “ The recovery of Scott vs. Prothro, was held not to be an estoppel against Prothro’s claim as assignee of Sarah Lamar’s dower; because, in that action to try the title to the land, Pro-thro’s claim for Mrs. Lamar’s dower, could not be pleaded in bar of the action, nor offered in discount, nor in any manner be made available against the recovery of the plaintiff, if the plaintiff proved a title to the land.”
    A verdict was rendered for the demandant, and the defendants appealed, on the following grounds :
    1. Because the fifth plea was sufficient, and judgment thereon should have been for the defendants.
    
      2. Because his Honor erred in charging that the deed from Sarah Lamar to Evan Prothro, real plaintiff, was not a bar and estoppel to the demandant’s claim.
    3. Because his Honor erred in charging that the record of recovery of John Scott vs. Evan Prothro, real plaintiff, was not a bar and estoppel.
    
      Bellinger, for the appellant.
    
    
      Patterson, contra.
    
      
      
         3 Strob. 562.
    
   Curia, per

Frost, J.

Sarah Lamar’s right of dower is not disputed; but it is denied by the appellant that the action can be maintained, in her name, as demandant, for the use of Pro-thro. This depends on the nature of the interest assigned. There can be no doubt, that after her dower is assigned and set out to the widow, she has an estate of freehold in the land ad-measured to her, with all the powers and incidents appertaining to such an estate. But the right or interest of the widow, in the lands of which her husband died seized, between the time of his death and the admeasurement of her dower, is anomalous. Although, by the death of her husband, her title to a free-hold estate in one-third of the .lands, of which he died seized, is consummated, yet she acquires no right 'of possession, nor of entry, nor can she exercise any act of ownership, until that third part is set out to her, in severalty. The widow can have no posses-sory action, nor take dower until it is assigned. It may be assigned without livery of seizin, or writing. Co. Lit. 34, a; 37, b ; Rowe vs. Power, 2 B. & P. N. R. 34. If deforced, she was driven, at common law, to the real action of a writ of dower. Damages were not recoverable for the detention of the land, until given by the statute of Merton, (20 Hen. 3. c. 1.) This statute is not of force in this State, and, in the Court of law, the widow cannot claim damages when her husband dies seized. By the Act of 1824, they are given only against the alienee of her husband. McCreary vs. Cloud, (2 Bail. 343;) Wright vs. Jennings, (1 Bail. 277.)

From these qualities and incidents of the right of dower, it is manifest that it is not an estate. Nor can it be treated as an interest in land, which may be transferred, so as to vest the legal title in the alienee. After the expiration of her quarantine, the widow has no right to enter on the land, nor any usufruct of it, until her dower is admeasured, and is liable, as a trespasser, if she remains on the land. McCully vs. Smith, (2 Bail. 103.) The right of dower is treated by conveyancers, in England, as an incumbrance, and, for most purposes, nothing more than a right of action, which is transferable in no other mode than by release to the terre-tenant, by way of extinguishment. Park on Dower, 335, (11 Law Lib. 153.)

Holding a right of dower to be a chose in action, by the deed of Sarah Lamar to Prothro no estate nor legal interest in the land was transferred to him; so that he could not maintain an action for the recovery of dower, in his own name. But though the legal interest in a chose in action cannot be assigned, the beneficial interest may be; and a Court of law will notice and protect it. As when other choses in action are assigned, the as-signee may sue, in the name of the assignor; so the widow may, as demandant, for the use of her assignee, institute proceedings for the recovery and admeasurement of dower; at least, the action will be maintained, when, as in this case, no conflicting claim is interposed.

The terms of the deed are clearly sufficient to transfer Mrs. Lamar’s right of dower. There are expressions which import an extinguishment of the right; but they are inoperative, since Prothro was not seized of any estate of freehold in which it could be extinguished.

It is plain, for the reasons stated in the report, that the judgment of Scott vs. Pi othro cannot estop this action.

The motion is refused.

O’Neall, Evans, Withers and Whitner, JJ., concurred.

Motion refused.  