took time to consider, and declared the inclination of his opinion to be against the complainant j but said he would consider the case, and if he had doubts, would carry it to the court of Conference,
Whitehead v. Bellamy, 3 N.C. 240, 2 Hayw. 240 (1803)
April 1803
·
North Carolina Superior Court
3 N.C. 240, 2 Hayw. 240
Whitehead vs. Bellamy.
TTIXS was a bill in equity for mesne profits of dower lands, of' which the plaintiff had been deprived many years, to have an account thereof, and to be paid what was due. The cast- was this: — Her husband did not die seized of these lands ; they were sold by ji-. fa. before his death, under the royal government. Clinch, the purchaser under the sci.fa, was ¡ued by her lor her dower, and then he died, leaving the land to Bellamy. To this bill the defendant demurred.
Harris now argued,
first, that it is settled law ever since the statute of Merton 9, H. 3, or 20 H. 3, that a widow is not entitled to damages for dower lands attained from her, unless lier husband die seized: Here he did not die seized.
Econtra,
it was argued that equity will entertain a bill fer tbs recovery of mesne profits in dower lands, in cases where the law *241'will.not, and will give farther relief than the taw thill; and that it is a principle of equity, shat tv here justice requires a thing to be performed, which the law does not enforce, equity will give reliefs í Fonb. 20. This principle is enough for our purpose ; for bore the estate ef Jlfr. Clinch has b. en beuefnted by receiving the profits g£ the dower lands.and the plaintiff has lost them when she ought to have received theta. If the law does not entitle her because the husband did not die seised, I ash where k.che difference in point of substantial justice between the case of his dying seised or not ? If a stranger keeps her out of possession, he ought to reimburse her as well as an heir.
The objection, that the executor ought not to pay, is Valid a® Saw, but it will trot avail here, 2 Brown* Ch, Rep. 620, establishes this position. It proves likewise all the other points we with. At proves that a court of Equity will unhvrsalhj give an account c? sweetie profits where justice requires it. If Equity will give 'i(vbef against executors, when at law they are not liable, because it is just to do so ; why shall it not relieve the widow for me:ne profits, although the husband did not die seized; The principle which gives the one will give the other.