Dolf v. Basset — 15 Johns. 21

Majority

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Dolf, Widow, against Basset.

Headnote

Where A. and, B. purchased a piece of land, and divided it between them, andA.,being in the exclusive occupation of his part, sold it to D.,but both A. and B. joined in the conveyance, itwas held that, although the deed from A, and B. might be prima fade evidence that they were tenants in common ofthe part conveyed, yet that the occupation of the land by A.,and the defendant’s purchasing it of him exclusively, were evidence of A.’s seisin of the whole, so as to entitle A.’s widow to ^T^hole his part of the land originally purchased by A. and B. and not merely in a moiety of that part.

Doner of land aliened by the husband in his life time is to be assigned according to the value of the land at the time of alienation, and such value may be ascertained, either, (I.) By the jury on thy trial of the issue in the action of dower; or, (2.) By the sheriff on the writ of seisin; or, (3.; By a writ of inquiry founded on proper suggestions.

THIS was an action of dower, for the recovery of dower in certain lands in the town of Chatham, in Columbia county. The cause was tried before Mr. J. Van Ness, at the Columbia circuit, in September, 1816.

Simon Dolf, a witness on the part of the demandant, testified that he was acquainted with the farm formerly in the possession of Jonathan Dolf, the husband of the demandant, which contained 150 acres, besides the part that after-wards got of Stephen Hare ; that Jonathan Dolf formerly lived on the farm, and that the tenant came into possession, about 20 or 22 years before the trial, under J. Dolf claiming it by purchase from him. The witness further stated, that J. Dolf and his brother Charles Dolf purchased the farm together, and then divided it, a division fence being put up, and each occupying his part separately, and that the tenant had got J. Dolf's part; that the deed was given to C. Dolf and the witness did not know that J. Dolf ever took a deed for his part; hut when he sold to the tenant, the deed was executed by both Charles and Jonathan. The demand-ant produced the record of the deed from J. and C. Dolf to the father of the tenant, dated May 8th, 1792, for the con

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sideration of 1000 dollars, which deed also included part of Harems land, and contained full covenants.

The tenant offered to prove, that he had erected, and made on the premises, valuable buildings and improvements, which testimony was objected to by the demandant’s counsel, and rejected by the judge. The counsel for the tenant then contended, that the demandant was entitled te recover her dower in the moiety of the farm only, and not in the whole farm; that the deed from J. and C. Dolf, with full covenants, was evidence of seisin in J. of a moiety only, and that the demandant was estopped by the deed from claiming dower in more than a moiety. The judge charged the jury that the demandant was entitled to recover her dower in the whole farm ; and the jury found,a verdict for the demandant generally, and that J. Dolf aliened the premises on the 8th of May, 1792.

The tenant moved for a new trial, and the cause was submitted to the court without argument.

This case is very obscurely drawn, and it is a little difficult to ascertain the facts necessary to decide one of the points which appears to have been made upon the trial, to wit, in what part of the farm the demandant had a right to recover dower. The better conclusion from the case is, that what is meant by the whole farm is the 150 acres purchased by Jonathan Dolf, the late husband of the demandant, and his brother Charles ; and that the defendant is in possession only of one half of that farm, being the moiety which, on a division between Charles and Jonathan, fell to the latter ; and the only difficulty that appears to be created is, that when Jonathan conveyed his part to the defendant, Charles also joined with him in the deed; from which circumstance it is contended, on the part of the defendant, that Charles and Jonathan are to be deemed tenants in common of the land so conveyed to the defendant, and the widow only entitled to dower in the moiety belonging to Jonathan. If this be the correct construction of the case, there can be little doubt that the demandant is entitled to dower in the whole of the 75 acres which it is supposed the deed contains. This deed might be prima fa

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cíe evidence that Charles and Jonathan held as tenants in common ; but the proof is abundant to show that such was not the fact, but that Jonathan had held and enjoyed the whole, in his own right, and Charles must have been joined in the deed for greater caution. The manner in which Jonathan used and occupied the land, and the defendant’s purchasing it of him exclusively, are sufficient, within the decisions of this court, to establish a seisin in Jonathan. ( 1 Caines 185 . 2 Johns. Rep. 119 .)

The next question presented by the case is, whether, in this action, the defendant could be admitted to show that he had made valuable improvements upon the land. This is a case where the land in which dower is claimed had been aliened by the husband in his life-time, and, therefore, coming within the statute, which provides that dower of any lands sold by the husband shall be according to the value of the lands,' exclusive of the improvements made since the sale. (1 N. R. L. 60.) It has been settled by this court, that dowel* is to be taken according to the value of the land at the time of alienation. ( 2 Johns. Rep. 484 . 11 Johns. Rep. 510 .) But in what manner, and at what time that value is to be ascertained, has not been decided. It is barely hinted at in the case of Humphrey v. Phinney; ( 2 Johns. Rep. 484 .) and the books do not furnish us with much light on the subject. As it is an inquiry growing, in some measure, out of the statute, the court has an unquestionable right to adopt such practice as shall seem most expedient. This value can only be ascertained in one of three ways; either by the jury upon the trial of the issue, or by the sheriff on the writ of seisin, or by a writ of inquiry founded on proper suggestions ; either of which would probably be unexceptionable. But in this case, as the issues have been already tried, recourse must be had to one of the two latter modes above suggested.

Judgment accordingly.