It is the duty of the heir to assign dower to the widow within a reasonable time after the deatli of her husband. If he fail to do it, she shall, upon petition filed for that purpose, have her dower assigned by a Jury $ and if she claim damages for the detention of her dowei1, she must inform the Court of that fact in her petition, (to which the heir must necessarily be a party,) and the Court will order an issue to be made up and tried between her and the heir, and the damages to be assessed. Tiie rents are necessarily incident to the freehold, and go to the heir until dower be assigned.' The rents now claimed belong to the heir, as they accrued before the assignment of dower. But the heir is not liable to the widow for the rents in an action on the case. He is liable upon her petition given by the act of Assembly, in analogy to the proceedings under the writ given by the statute of Merton; and there the widow recovers, not rents, (which suppose'a privity of estate) but'damages for the detention of her dower ; in assessing which, the value of the rents is the proper guide to the Jury, Judgment for the Defendant.
Sutton v. Burrows, 6 N.C. 79, 2 Mur. 79 (1811)
John Sutton and wife v. James Burrows.
From Martin.
Dower. The rents which accrue before the assignment of dower, belong to the heir: but he is answerable over to the widow for them, as damages for not assigning her dower. The remedy for the widow to recover these damages, is by-petition for a writ of dower, and praying therein to have the damages assessed. The Court will order an issue to be made up between her and the heir, and submitted to a Jury. The widow cannot maintain an action on the case against the heir, nor any other person, for the rents received before the assignment of dower.
David Perry died seised of certain lots in the town of ’Williamston, which his administrator, the present Defendant, leased for three years, and received the rents, amounting to £70 5s. Subsequent to the making of this lease, the widow of Perry married John Sutton, and they filed a petition praying that her dower might be laid out in the lands of which Perry died seised. The Jury included the lots aforesaid in her dower, and returned their report to Court, and the Court confirmed it. The Jury also included, the dwelling-house and outhouses of Perry in the dower, and the widow occupied "the dwelling-house until her n|arriage, and her husband and herself afterwards occupied it until the dower was laid out. Sutton and wife then brought an action on the case against Burrows, to recover the rents aforesaid, *80which lie had received ; and the question was, r> bet her the action could be maintained ?
Browne, for the Plaintiffs.
When the writ of novel disseisin was give#* the strictness of the feudal system ivas wearing out, and damages were allowed to be given ; and about the same time,'damages were allowed in most of the other real actions where the freehold was demanded — (3 Bl. Gom. 185.) At that time, the action of ejectment was used only for the recovery of terms for years. When this action came into general use for the recovery of the freehold, nominal damages only were given; but the Law applied a new remedy, by giving the action of trespass for the mesne profits. The writ of down- was t hen used as a real action, and by the statute of Merton, damages were given to the demandant in the writ — (Co. Lit. 32, l\ note.') Under this statute, damage's are recovered not according to the value of the land, but of the rents. As other real actions have given way to the action of ejectment, so the writ of dower has given way to the petition for dower, under the act of Assembly : and as in ejectment the Courts have applied the action of trespass to recover the mesne profits, why, in the petition for dovc-T, will they not apply the flexible remedy of the, action on the case, to .ecover the rents and profits which the widow is entitled to from the time she ought to have been endowed ?
Daniel, for the Defendant.
Before the statute of Merton, no damages were given in the writ of dower. That statute was intended to compel the heir to make a speedy assignment of dower. The action on the case would not fie even against tiie heir. If the widow claim damages, :.hc must set up her claim^in her petition for dower, and die Court will direct an issue to be made up between her and the heirs, on which the Jury will assess damages. The present suit is brought against the administrator. *81who leased the lands and received tiie rents. If he received tiie rents, for whose use did he receive them ? Surely for the use of the heir, upon whom the land had descended. For until the assignment of dower, the entire freehold was in the heir. Will the assignment of dower have relation back to the death of the husband, so as to affect the Defendant, who in tiie interim has received the rents ? Do not the profits follow tiie freehold as a necessary incident ? The widow is entitled, to the rents, but she must look to the heir for such as accrued before the assignment of dower; for lie in contemplation of Law has received them. But she cannot recover even against the heir in this action : She must, in analogy to the proceedings under the statute of Merton, have damages assessed upon her petition for dower.