#### *Elizabeth Stoney vs. The Bank of Charleston.*

Where a bill was filed by the creditors of á testator against bis executrix, who was also his widow, praying that the real estate of the testater might be sold to pay his debts; and, under the order of the court, the land was sold for the payment of the testator’s debts, the widow making no claim of dower ; *Held,*that the widow was barred by the proceedings, from af-terwards claiming dower from the purchaser.

*Before*JohNSon, Ch. *at Charleston, February,*1843.

*The Chancellor.*The complainant, in her bill, demands dower in certain real estates, whereof her husband, John Stoney, died seized and possessed.

The defendant pleads in bar to this demand, that the said John Stoney, by his last will and testament, nominated the said complainant and two of his sons the executors thereof, all of whom qualified. That in November, 1840, one Stephen Catley Tennant, administrator with the will annexed of one Francis Dalco.ur, of the island of Cuba, filed his bill in this court against the complainant and the other executors of the said John Stoney, and divers other persons having interests in his estate, in which he prayed an account of all the real and personal estates whereof the said John Stoney died seized and possessed, and that the same might be decreed to be sold to pay certain demands by the said Stephen, Catley Tennant against the said John Stoney ; that to this bill the complainant filed her answer, in which there is no claim or demand for dower or thirds in the said real estates ; and that such proceedings were had in the said cause, that on the 10th of July, 1841, an ‘order was made that the estates, real and personal, of the said John Stoney, in the State of South Carolina, including, of course, the lands in which the complainant now demands dower, should be sold, on certain terms therein prescribed, without any reservation of the complainant’s right of dower; and that in pursuance of the said order, the said real estates were sold by one of the masters of this court, and purchased by the defendant, without any reservation of the right of dowér. Such is the substance of the plea. The claim of dower is much favored, but it cannot be permitted to ride over other well settled rules of law. A wife may be barred of dower, by accepting a legacy or jointure in lieu thereof. It may be barred by the statute of limitations, and like all other *276rights, it may be waived, if the party claiming neglects to maintain or assert it when an opportunity occurs, and the occasion requires that it should be asserted. In *MDowall vs. 3I‘Dowall,*1 Bail. Eq. 330, Chancellor Harper says that “ when the question is *de re judicata,*the true rule is, that what the party has once had an opportunity of litigating in the course of a judicial proceeding, he shall not draw into question again; but that whatever might have been properly put in issue, shall be concluded to have been put in issue and determined,” unless the party was under some disadvantage, or was prevented from making the defence by surprise or accident, circumstances in themselves forming a distinct ground of equity jurisdiction. Such is the doctrine of all the authorities, and the necessity of adhering strictly to the rule is enforced by the consideration, that if it were otherwise, there never could be an end to litigation. If a party defendant might, by carelessness or wilfulness, omit to make an appropriate defence, and thus entitle himself to an action against the plaintiff, the same thing might again be played off in the second suit, and so on *ad infinitum.*The bill filed by Tennant against the complainant and the others, prayed expressly that the estates, real and personal, might be sold to pay debts. The complainant then had an opportunity of asserting her right to dower, and having neglected it, she is concluded by the rule. It is but just to the purchaser, who might, and would reasonably conclude, that the rights of all the parties to the proceeding under which the sale had been made, had been adjusted. It is ordered and decreed, that complainant’s bill be dismissed.

The complainant appealed, on the following grounds :

1. That the complainant’s claim of dower out of the lands of her husband, was not in issue, and could not properly have been put in issue, in the suit mentioned in the defendant’s plea in bar, and in which the order was made for the sale of the estates, real and personal, of the testator John Stoney.

2. That the decretal order under which the sale was made, at which the defendant purchased the lands in question, directed, “ that the estate, real and personal, of the testator;, John Stoney, be sold by the master,” and the complainant’s right of dower in the lands whereof her husband was seized during the coverture, was no part of his estate, but a right or interest in her, distinct from his estate, and was, therefore, not embraced in the said de-cretal order.

*2773. That the complainant’s right of dower in the lands purchased by the defendant, is not barred or concluded by any thing in the plea contained, nor by any thing which has occurred be-, fore or since the death of the said John Stoney.

*Mazyck,*for the appellant.

*The Attorney General,*contra.

*Per Curiam.*

We concur in the decree of the circuit court. The appeal is, therefore, dismissed.