#### Mary Ayer *versus*Seth Spring.

In an action for dower, wherein issue was taken on the demandant’s marriage, ana on her husband’s seisin, she was not held to prove a demand of her dower on the tenant.

Dower was demanded in “ a messuage and the buildings thereon, said messuage

being three fifths of-Island: ” it was in evidence, that the tenant, being

entitled to three undivided fifth parts, had, before the action brought, had his purparty set off to him in severalty, by metes and bounds ; and held well enough; and the demandant’s third part would be assigned to her upon a view of the premises, of which dower was demanded.

This action was before the Court at the last May term in this county. There being at that time a prospect of an adjustment, the Court intimated an opinion on the point, which then appeared most to labor between the parties. (1) That adjustment not having been effected, and the action still standing for a decision upon the judge’s report, the Court now gave an opinion on the several points. A more particular report of the facts is therefore necessaiy, than was before given.

*93The action was for the recovery of the demandant’s dower *“*in a certain messuage and the buildings thereon, said messuage being three fifth parts of a certain island, situate above the falls in said *Biddeford,*commonly called *Jordan’s*Island, containing twelve acres; in which she counts on the seisin of her late husband, *Elisha Ayer,*during the coverture, and avers a demand of the tenant, and a refusal by him to assign her dower.

Two issues being joined, *viz.,*1. On the demandant’s marriage; and, *2.*On the seisin of her husband during the coverture; the same were tried October term, 1811, before *Thatcher,*J.

*The demandant, in support of the first issue, proved [ *81 ] her marriage to ihe said *Elisha*about the year 1773.

She also proved his death in 1806.

In support of the second issue, she proved a possession of the said island by one *Cole,*more than sixty years ago, he having purchased one moiety thereof of one *Scamman,*and that from that time it had been considered as belonging to the family of the said *Cole.*About the year 1778, the said *Elisha Ayer*entered upon the island, cultivated a part of it, and built a saw-mill thereon. On the 24th of September, 1779, *Jeremiah*and *William Cole,*children and heirs of the before mentioned *Cole,*for a valuable consideration, conveyed to said *Elisha,*in fee, three fourth parts of the island ; and on the 10th of June, 1780, *Benjamin Cole,*another of the said children and heirs, conveyed, in like manner, one fourth part thereof; the said *Jeremiah, William,*and *Benjamin,*being the only children of their said father.

In September, 1784, *Benjamin Cole,*having recovered a judgment against the said *Elisha,*duly extended his execution on the whole of said island; and the tenant derived his title to three fifth parts thereof from the said *Benjamin;*which, in September, 1796, were divided by metes and bounds from the remaining two fifth parts, by a deed of partition executed by the tenant and the owners of the other part.

There were no buildings or productive improvements on the island in the year 1794, when the tenant entered upon and took possession of it.

On the foregoing evidence, a verdict was returned for the demandant on both the issues joined, subject to the opinion of the Court upon the following points: —

1. Whether the action lies upon all the evidence.

2. Whether the demandant shall have her dower out of the demanded premises, in the state and condition they were in at the time of her demand made on the tenant, or at the time the tenant took possession of them.

*943. Whether she shall have dower of three fifths of the island described in the writ, or dower of that part only of the island in the possession of the tenant.

(1)

*Vide*vol. ix. p. 8.

* Sewall, J.,

delivered the opinion of the Court. The two issues referred to the jury have been found in this case for the demandant. Upon the first, in which is brought in question the marriage of the demandant with *Elisha*Ayer, of whose land she claims dower, the jury have found the marriage; and there is no objection to this verdict.

Upon the second issue, of the seisin of her husband during the coverture, the jury have found the seisin; and the questions, reserved by the report of the evidence at the trial, relate altogether to this issue. The objections, as they apply to this verdict, seem to be, that it is without, or against evidence, or not warranted as a legal conclusion from it.

As to the title or seisin of the husband, there can be no doubt, we think, upon this evidence. It may be considered as originating with the deeds made to him from the three *Coles*in 1779 and 1780. The demandant was then the wife of *Elisha Ayer,*having been married in 1773, or about that time; and she continued with him until his death, in 1806.

The tenant derives his title from *Ayer,*under the extent which *Benjamin Cole*made upon *Ayer’s*land, to satisfy a judgment recovered against him in 1784. The whole island was extended upon and set off to *Benjamin Cole,*to satisfy the execution upon that judgment; and in 1787 *Cole*conveyed three fifths of the island, which by regular conveyances came to the present tenant, and the demand of dower is of these three fifths. The wife had at that time her interest, or possibility of dower, in the land, which had not been taken away by the extent, and that inchoate title became complete at the death of the husband. In short, as questions reserved upon the issues, and the verdicts of the juries thereon, we see no cause of doubt.

The objections which were urged in the argument for the tenant are rather in the nature of motions in arrest of the judgment to be rendered on the verdict, or suggestions to the Court in behalf of the tenant, as to the kind of judgment to which he is subjected by the verdict returned for the demandant.

* It is said, in the first place, that a demand of dower

was not proved at the trial, although it is specially alleged. But if evidence to support this averment were necessary under any circumstances or form of pleading, it certainly is not when it has not been denied. The demand is sufficiently alleged in the writ, and the tenant defends upon a plea of “ never married,” and another *95that the husband was “ never seised.” The demand is therefore confessed ; and the tenant has attempted to justify a refusal of the dower demanded.

*Holmes*for the demandant.

*King*and *Emery*for the-tenant.

The demand is of dower in three fifths of the island ; and the assignment of dower to the demandant must be of one third of three fifths. It is said the demand, as alleged, is of three fifths undivided. It is expressed in the writ to be “ of a certain messuage and the buildings thereon, said messuage being three fifths of *Jordan’s*Island.” Taken all together, the description must be of that messuage and part of *Jordan’s*Island, which the tenant possesses in his own right. And upon the whole, although the metes and bounds of this part are not stated in the writ, it seems to be certain enough in a writ of dower, where the third part will be assigned to the demandant upon a view of the premises of which dower is demanded.

As to the improvements, that question is not open to the tenant upon these pleadings, *(a)***The demandant might have been restrained to the value of the land, as it was at the time of the extent of the execution against her husband; but we cannot, from these pleadings, understand that any improvements have been made since that time, or of what nature or value, to be excluded from the judgment to be rendered.

Judgmentds to be entered according to the demand in the writ, which, upon these issues and verdicts, is to be considered as maintained for the demandant.

ADDITIONAL NOTE.

[In a writ of dower, damages are recovered from the time of demand upon the person who was tenant of the freehold at that time, not upon one who was tenant at the ausband’s death, but not at the time of demand. — *Leavitt*vs. *Lamprey,*13 *Pick.*382 See *Steiger*vs. *Hillen,*5 *Gill*& *J.*121. — *Martin*vs. Martin,2 *Green,*125. — F. H.]

(a)

*[Vide*S. C 9 *Mass. Rep.*8, and note to that case in the 3d edition. — Ed.]