Let the Demurrer he sustained and the hill dismissed With costs.
Whithead v. Clinch's heirs, 5 N.C. 128, 1 Mur. 128 (1806)
June 1806
·
Supreme Court of North Carolina
5 N.C. 128, 1 Mur. 128
Whithead, (widow) vs. Clinch’s heirs and Executors
From Halifax
Dower having as-thewhiow titioo aat hw ^ííot'eñtor-1 %v"ole1 itutsae pro■ *129i‘»“ of the dower, un-' less there cumstance, suco as loss of title detention of eossary. — - «amigos of* cl°";ei' are to be w¡'§_, tiic .iouefl kmereoo-
*128Jacob Whitheatl. died in the year 1783, seized and post aessed of a tract of land in Nash county, leaving the com» plain&nt Martha Whithead his widow; who sometime in the year 1?86, filed her petition against Joseph John CJynch W^° was then in possession of the said tract of land, pray, that her dower therein might be alloted to her. Clynch' coa*rived to delay the hearing of the petition until the year when he died, having previously made a will and appointed executors. ' The petition was carried on against tfi® *129heirs of Clynch until the year 1800, when judgment was rendered in favor of the petitioner ami her dower in the said land was accordingly allotted to her. During the pendency of this suit, the land was possessed and the profits received by Clynch during his life and by his heirs after his death. When the writ of dower was executed, no damages for the t mesne profits were recovered, owing in part to the doubt, whether as the suit was originally instituted against the an cestor and afterwards carried on against the heirs, any damages could ha given, and as the act of Assembly regulating the proceedings upon petitions for dower, had made no provision upon this point. Clynch died possessed of property more than sufficient to satisfy the co.nplaiiuuit’s demand, which property came to the hands ofhis executor, Martha Whithead the widow, filed this bill against Clynch’s tors and heirs at law, praying for an account of the 4 * ° ¶ profits, and that one third part thereof might be decreed be paid her.
• .xlV*-ssfenra causes of demurrer that if complainant were enti i led ages, she ought to have demanded and recovered her dower at law : and that complainant had that she was entitled to any damages for the her dower, either in law or equity.— Í ho executor assigned another cause, to-wit: That complainant’s dower was To this bill the defendants demurred and assfe vered from the other defendants who were the tenants in possession and that damages in dower could by law be recovered from him.' — The complainant having joined in demurrer, the caso vvas sent to this Court.
In support of the demurrer it was urged, that without some equitable circumstance, such as defendant detaining iitle„deeds, loss of such deeds, or where a discovery from the defendant is necessary, a Court of Equity will not entertain abill for mesne profits. 2Vern. 51®. 3 Atk. 340. 1 Afk. 324, that in this case no equitable circumstances existed or were set forth in the bill. It was further urged that this *130being a case which originated previous fo the act of 1784 which regulated proceedings in cases of dower, it ought to decided by the law as it stood previous to the act of 1784* By this law, if the defendant in a writ of dower die pend» ing the suit, damages are lost and judgment will be given for dower only. 2 Ba. Ab. 392. 294. And although cases are numerous where plaintiff or defendant at law, in a suit for damages, has died, it has always been conceded that damages were lost at law, and equity has never given relief. The case from 2 Brown’s Ch. Rep. 620, &c. is a cade which was first instituted in a court of equity, and not in a court of Law.
No damages or rnense profits were recoverable at Common Law in real actions, of which dower is one ; on the principle that they were necessary to enable the tenant in possession to answer the demands of the lord. The statute of Morton, 20 Hen. Ill, first gave damages in Dower to Widows, and that only where the Husband died seized of the laud. Co. Life S3. 32. b. (2) — 2 Ray. 1384. 2 Ba. Ab. 392. 3 Dyer 284. & b. S3. No case can be produced where Widows whose Husbands did not die seized of the land of which they prayed dower, recovered mesne profits, except two or three, which were afterwards reversed for error on that very account — ho damages are prayed against a purchaser in' the Husband’s life time. 3. Bro. Ch. 264 — and in Beenbury 57. is a case where the bill irt almost every particular like the present, was on Demurrer dismissed — And