Marshall v. Anderson ( 1841 )

Judge Ewing

delivered the Opinion of the Court.

As the husband of the complainant was seized of the entire tract, during coverture, she may rightfully join in the suit for dower all those who have derived title to, and are in the occupancy of the same, though their titles were derived by separate and distinct purchases.

But it was improper to decree against Marshall, who claimed title to a part only, the whole costs.

It was also error to decree in favor of the complainant below, rents or damages, as her husband did not die seized, but had parted with his title and seizen in his lifetime, and in such a state of case damages are not recoverable at law, and ought not to be decreed in equity: 2 Bac. Ab. title, dower, 149, &c.; 2 John. Rep. 119; 5 Mon. 282, Kendall vs Honey; 2 J. J. Marshall, 240; 6 J. J. Marshall, 589, Waters vs Gooch.

Damages for detention of dower, not recoverable where the husband aliened in his lifetime — no cost decreed in this Court, as the reversal is only partial. W. C. Marshall for appellant: Payne & Waller for appellee.

But Marshall has no just ground of complaint as to the decree in his favor, over against his warrantor, Anderson. It must, according to any estimate which could be rightfully made, be enough in all conscience, if not too much. Nor has he any legal right to complain of the decree for dower, in favor of the complainant below.

Decree affirmed, as to the allotment of dower, and reversed, as to the damages or rents assessed in favor of the complainant against Marshall, also as to the costs below, and the case is remanded that a joint decree for costs may be rendered against Marshall and the Blacks. No decree for costs, in this Court, will be given in favor of either party, as there is a partial reversal only.