#### ANN STINER *vs.*JOHN V. CAWTHORN.

Dec. 1839

IF, upon an appeal by’one alone, of two or more parties to a judgment, in the County Court, the Superior Court proceed in the cause, and render a judment therein against the appellant, and he thereupon appeal to the Supreme Court, the latter Court will not dismiss the appeal for want of jurisdiction to entertain it.

In a proceeding by petition, under the act of 1784,1 Rev. Stat. ch. 121, see. 1, for dower, the suit for dower is at an end by the judgment of the court awarding dower. This is the only judgment to be rendered in that suit; and any proceeding to set aside the inquisition taken under our act — like the *scire facias*— or writ of error — oi writ of admeas-urement — or bill in equity, used to set aside the sheriff’s assignment in England — is in the nature of a new suit.

The act of 1784 has not indicated the remedy tor an illegal or excessive allotment of dower; but the usages of our Courts have defined it, to wit, that when the report of the jury is returned, exceptions may be thereunto taken by any one thereby aggrieved, and the Court will set • aside the allotment and order a new allotment,, if sufficient cause be shewn. And if a judgment be pronounced overruling such exceptions, the party may appeal, which will not disturb the judgment that the widow recover her dower — nor vacate any thing that has been done in execution of that judgment; but will only carry up the proceeding instituted to set aside the inquisition of the jury.

Under the act of 1784, the jury cannot assign to the widow the whole of her husband’s real estate, upon the ground that the whole of it is necessary for her decent subsistence. The act gives her one third of the real estate of which her husband died seized, in which is to be comprehended the mansion house and offices — or if the whole mansion and offices cannot be so taken in, without injustice to the children, then such part or portion thereof as may be sufficient to afford her a decent subsistence. But the mansion house — ora part of the mansion house — is not to be allotted in addition to her third, but in part of her third; and if the whole be allotted to her by the jury, when her hnsband had no other real estate, the report will be set aside.

At May term, 1839, of Warren County Court, Ann Stiner filed her petition, setting forth that her husband, Jacob Sti-ner, had died intestate, seized in fee of a lot of land in the town of Warrenton, and praying that she might have dower assigned therein. To this petition she made parties defendants, Henry T. Allen and Ann, his wife, and Eliza Dunna-vant, (which said Ann and Eliza were the heirs at law of her deceased husband,) and also John V. Cawthorn, who claimed *502to hold the interest of Henry T. Allen in his wife’s moiety, a purchase at sheriff’s sale. The defendants made no resistance to the claim of the petitioner; and thereupon the Court, in conformity to the directions of the act of Assembly, awarded a writ to issue to the sheriff, commanding him to summon a jury of freeholders, who upon oath should allot the petitioner one third part of the lot aforesaid. At August term, 1839, the sheriff returned the inquisition of the freeholders, setting forth that in obedience to the said writ they had allotted to the petitioner all the said lot, with all the out-houses, buildings and appurtenances thereto belonging, the same being all the real estate whereof Jacob Stiner died seised.” Thereupon the defendant, Cawthorn, except-to the inquisition in these words: “ The defendant, John Cawthorn, objects to the report of the jury in this case> because the said jury, in the allotment of dower to the widow, halh given her the whole of the real estate of which, her husband, Jacob Stiner, died seized and entitled to.” But the Court “ confirmed the report, and ordered the same to be recorded and registered,” from which judgment the defendant, Cawthorn, appealed to the Superior Court, where the cause coming on to be heard, on the last circuit, before his honor Judge Saunders, and it appearingto the Court that the whole real estate of which the petitioner’s husband died seised, consisted of a very small unfinished house and lot in the town of Warrenton, the whole of which was necessary for the decent subsistence of the widow, “ it was ordered that the exception taken by the defendant, Cawthorn, be overruled, and the allotment affirmed; that the said report and allotment be recorded, and that the petitioner hold according thereto.”

From this judgment the defendant, Cawthorn, prayed an appeal to this Court, which was allowed him; and it was specially stated on the record, “ that the other defendants were satisfied with the judgment, and refused to join in the appeal.”

In this Court, Badger, for the petitioner, moved to dismiss the appeal, because the other defendants had not joined in it. He also argued, in the event of his motion not being sustained, upon the merits of the question involved in the cause.

*W. H. Haywood*for the defendant.

*503Gaston, Judge,

after stating the case as above, proceeded as follows: It was moved here by the connseL ior the peli-tioner, to dismiss the appeal, for the want of jurisdiction in this Court to revise the judgement rendered in the Superior Court. In support of this motion, it was insisted, that where a joint judgment is rendered against two or more defendants,one alone cannot appeal therefrom; that the cases of *Hicks*v. Gilliam, 4 Dev. 217, and *Dunn & McIlwaine*v. Jones, ante 154, have established this to be the law in cases of appeals from the County to the Superior Court; and that there being the same reason, the same law must obtain in regard to appeals from the Superior to the Supreme Court. It seems to us, that the positions asserted may be conceded, and yet the consequence contended for will not follow. Admit that the judgment in the County Court, from which Cawthom appealed, was a joint judgment, and that the Superior Court acquired no jurisdiction of *the*cause, because one defendant alone cannot appeal, yet the Superior Court did act thereupon and rendered a judgment therein, there being no other parties before it but the petitioner and Cawthorn; and from the judgment rendered in *that*Court, either of the parties who were alone before it might appeal to this Court. The cases quoted were *decided here*upon the ground that this Court had jurisdiction of them. In both there was a joint judgment against two defendants in the County Court, and one" only appealed to the Superior Court. In each there was a motion made to dismiss the appeal in the Superior Court, for want of jurisdiction. In the one case, the motion was refused; the cause was tried; and a final judgment rendered for the plaintiff, from which the defendant in the Superior Court pealed'. In the other, the motion to dismiss prevailed, and the defendant appealed therefrom. This Court took jurisdiction of both appeals, and in the exercise of that jurisdiction in the first case, *reversed*the judgment of the Superior Court, and proceeding to declare what judgment should be rendered in the Superior Court, directed that Court to dismiss the appeal and issue a *procedendo*to the County Court to award execution on the judgment there rendered; and in the second case *affirmed*the judgment of the Superior Court. *504The motion to dismiss the appeal is therefore overruled.

®ut ^ kecomes necessary for the proper exercise of our jurisdiction, to determine what was the subject matter of the appeal from the County Court, and whether that appeal was regular. The legal remedy at common law to enforce an assignment of dower, where no par-t of it had been assigned, was by a writ of dower *unde nihil habet,*and the judgment for the demandant was, that she “ should recover seisin of a third part of the tenements demanded in severalty, by metes and bounds;” or if the judgment were rendered against tenants in common, “ should recover seisin of a third part of the tenements demanded, in three parts to be divided.” By that judgment, at common law, the suit was at an end, and an execution issued to enforce it, called a writ - of *habere facias seisinam.*2 Saund. Rep. note 44, c. d. e. In pursuance of that writ, the sheriff assigned dower on the land, and she might recover possession thereof by ejectment. Since the statute of Merton, the widow might also have judgment for damages, and then the writs of seisin and of enquiry of damages were usually blended together in one writ. Where an excessive assignment was made by the sheriff, the heir might have a *scire facias*to obtain an assignment *de novo. Stoughton*v. Leigh, 1 Taun. 412. According to the opinions of some, he might have error, because of this appearing on the inquisition; while others have thought error would not lie, but a writ of admeasurement of dower, because the judgment and the award of execution were good—Styles 276—Palmer 266. Nay, Courts of Equity have entertained bills to be relieved against such assignments upon allegations of fraud and *partiality*—Hoby v. Hoby, 1 Ves. 218. *Sneyd*v. *Sneyd,*1 Atk. 442. Our act of Assembly, (see 1 Rev. Stat. ch. 121, sec. 1,) regulating the mode of proceeding, directs a petition to be filed, setting forth the widow’s claim to dower, specifying the lands whereof her husband died seised, and praying that her dower may be allotted; and enacts that thereupon the Court shall issue their writ commanding the sheriff to summon twelve freeholders, who shall allot and set off to her one third part of the lands of which her husband died seised, and put her in possession of the same, which possession shall vest in her an estate for her natural *505life in the third part aforesaid. The act is entirely silent as to any further proceedings upon the return of the inquisition or report of the jury. In a proceeding by petition under this act, as in a writ of dower at common law, the suit for dower is at *an end*by the judgment of the Court awarding dower. This is the *only*judgment to be rendered in that suit — any proceeding to set aside the inquisition taken under our act of Assembly — like the *scire facias*— or writ of error — or writ of admeasurement — or bill in Equity used to set aside the sheriff’s assignment in England — is in the nature of a new suit. Our act has not indicated the remedy for an illegal or 'excessive allotment of dower — but the usages of our Courts have defined it. In *Eagles*v. Eagles, 2 Hay. 181, it was decided, that when the report of the jury is returned, exceptions may be thereunto taken, and the Court will set aside the allotment and order a new allotment, if sufficient cause be^ shewn. This practice has been extensively followed since, and must now be regarded as firmly fixed.

The appeal taken from the County Court, is not therefore, as it seems to us, an appeal from the judgment in the suit‘for dower, but merely from the decision made upon the motion or application of Cawthorn, who had been one of the de- . fendants in that suit to set aside the inquisition or report of the jury returned therein, by which he alleged himself to be aggrieved. We can see no sufficient reason why any one aggrieved by the report of the jury may not be received to make this application, and when it is *his*application only, he alone can regularly appeal from the decision upon it. The appeal does not disturb the judgment that the widow recover her dower — nor vacate any thing that has been done in execution of that judgment. The appeal carries up the proceeding instituted for setting aside the inquisition — but it *leaves*the inquisition in full force, until the judment of the appellate court shall pass upon it.

Upon the main question involved in this controversy, the court feels no difficulty. In its opinion, the inquisition of the jury cannot stand. The dower of a widow, of common right, never did extend to more than a third part of the lands and tenements of her husband — and our Statutes have not *506directly or indirectly, in any case, enlarged the right so as to comprehend more than a third. They declare that she shall be *entitled*to dower in the following manner, *“*to wit, *one third fart*of all the lands &c. of which her husband died seised or possessed.” The writ to be awarded, is to allot to her “ one third part of the lands &c.,” and the estate vested by the execution of the writ, is declared to be an “ estate for the term of her life in the third part of her husband’s lands &c.” *Very plain*and *uneqiávocal*language must be found to warrant the supposed exception that where the whole of the husband’s real estate is necessary for the decent subsistence of the widow, then the whole may be allotted. To our apprehension, there is no language in the statute which justifies such an exception. At common law, the heir was not compellable to assign to the widow for her dower, the mansion house or any part thereof, but he might assjgn her dower in other lands, in allowance of the capital messuage. But if there were not any other lands of which she was dowable, and the heir assigned unto her a chamber in the capital mes-suage in the name of dower, and she agreed thereto, it was a good assignment. But she was not compellable to take the same, because it may be but trouble and vexation in a woman to have a chamber within the house of another man. See Perkins, sect. 406. Our act of 1784, 1 Rev. Stat. ch. 121, sec. 1, intended to give the widow the right to require, where it might be done consistently with the rights of the heirs, that the capital messuage should be assigned in part of her dower. Accordingly, after enacting that she-shall have a *third*— it proceeds to state that *in that third*shall be comprehended the mansion house and offices — or, if the whole cannot be so taken in, without injustice to the children, then such part or portion thereof only, as may be sufficient 'to afford her a decent residence. The mansion house — or a part of the mansion house — is not to be allotted in addition to her third — but in part of her third. Her claim is to a third *only*of her husband’s real estate, in the assignment of that third, if she wishes it, the mansion house, or so much thereof as is suitable, shall be included' — but she cannot have more than a third.

The particular circumstances set forth in the case, as in*507fluencing the judgment of the Superior Court, would be entitled to great weight, if this were a matter of discretion.— But it is not. An inquisition allotting the *whole*of a man's lands under a writ to set off *one third part*thereof, is, in our judgment, directly against law, and must be set aside.

It is the opinion of this Court, that the judgment rendered in the Superior Court is erroneous, and must be reversed— and that the exception taken by the defendant to the assignment of dower which was returned to the County Court, is, in law, sufficient to set aside the same. This decision will be certified to the Superior Court, with directions to conform their judgment thereto, and to issue their writ to the County Court, to set aside the said assignment. The petitioner may then proceed to have a new assignment in the County Court according to law. .

Per Curiam. Judgment reversed.