Sellman v. Bowen , 8 G. & J. 50 ( 1836 )

Aecheii, Judge,

delivered the opinion of the court.

The complainant having recovered her dower at law, seeks by this bill the rents and profits from the death of her husband.

T.he seizin of the husband is denied; and the defendant puts the complainant to the proof, not only of the seizin, but the marriage.

The complainant anterior to the filing of this bill to recover rents' and profits, had instituted suit in Baltimore county court, for her dower. In this suit the seizin of the husband was directly in issue, and the marriage by not being denied, was admitted.- , The verdict and judgment in that cause, being between the same parties, where the same issue was in controversy must at all events, as to the seizin,' be considered in this controversy as conclusive ; and as the deman-dant in' the suit at law, could not have recovered without proof of marriage, or its admission, the effect of the record perhaps, ought to be considered as equally conclusive of the marriage as the seizin; the marriage not having been denied, but the cause being put to the. jury on the. issue of seizin. But without proceeding to any determination upon this branch of the subject, the proof of marriage in the record before us is abundant; if general reputation, cohabitation,, and acknowledgment, can in such a case be considered as evidence, and of this we have no doubt. Such evidence is sufficient in all cases except in actions for criminal conversation, and in prosecutions for bigamy. Morris vs. Miller, 1 Wm. Black. Rep. 632.

In ordinary applications to equity for a decree for dower, and rents and profits, wben the seizin of the husband is denied, it is the course of this court to send the parties to law, to litigate the legal question, while in the meantime they retain the bill.

Between these parties however, before the filing of this bill, the legal right had been tried and settled, and every question had been adjudicated by a court of common law, which in any shape the cause could assume, would fall within their peculiar cognizance.

The complainant therefore meets with but three difficulties in addition to those above adverted to, in the recovery of the rents and profits which have been withheld from her.

1. It is supposed that having sued for her dower at law, she might there have recovered her damages, and having failed to recover them at law, she has lost them every where. If there exist a right to recover damages at law, and the plaintiff at law failed to recover them, looking to the state of the record, it is probable that the matter must be considered as res adjudícala, and that it cannot form the subject of a new litigation, but the judgment already passed has foreclosed the plaintiff. It must be conceded, that in the case of Steiger and Hillen, 5 Gill and John. 133, countenance is given to the doctrine that at law, the widow may recover from an alienee of the husband her damages. The suggestion was not necessary to the determination of that case, and having been fully discussed in this case, and the doctrine more deliberately examined, we have brought our minds to the conclusion, that it is only in a court of equity that the rule. will apply, that a widow is entitled to her damages from the alienee of her husband, and that consequently, a court of equity is the only and peculiar forum for their recovery in such a case. The following authorities would appear conclusively to establish the doctrine. Doctor and Student, 140. 141. Roper on Prop. 435, 443. 2 John. Rep. 119. Jenkin’s Cent. 1 Ch. 85. Park, on Dower, 391.

2. That the rents and profits- are but incidents of the right to dower,, and the dower having been recovered at law, the bill from the incidents cannot be maintained without having the support which they would derive from an application at the same time for the principal. If it be true, that the widow could not have recovered them at law in this case, and that for the dower itself, courts at law and equity have concurrent jurisdiction, the result of such a principle, would in all cases be to defeat the widow of her damages, where she pursues her remedy at law; and such a doctrine would be attended with this further result, that in all such cases, the jurisdiction of the courts'of law, of the principal (the dower) would be practically ousted, for no one would ever go to law to recover her claim to dower, when she is to be pursued with the inevitable penalty of a loss of rents and profits. An argument leading to such consequences cannot be maintained. Besides the respondent who is the recipient of the rents and profits; of that which in fact belonged to the wife, ought to be, and is considered in the mind of the court of equity as a trustee, or bailiff, and accountable for his stewardship, and it cánnot be perceived how with any legal propriety, the compulsory recovery of the principal which has been unjustly withheld, should produce the effect of stripping the defendant of his-character of trustee, with which, he had been clothed, in order to enable a court of equity to do justice, when the same reason precisely ought to continue after the recovery of dower as before, A widow may expressly, or by implication waive her right to rents and profits, but certainly a recovery at law to the extent to which she could recover, cannot be considered as waiver of ány thing,

3. It is supposed that the complainant is barred by limitations. Had she pursued her claim, both for dower, and for rents and profits in a court of equity,- she would not have been barred, and we understand this to have been conceded in the argument. But if it were not conceded, it is established by authority. Mesne profits as damages, are given at law under the statute of Merton, without restriction as to time, and when they are decreed in equity to the widow, the like account will be taken; courts of equity applying limitations only, in analogy to limitations at law. Roper on Prop. 448. In 9 Ves. 222, after the lapse of twelve years’ rents and profits were decreed, the master of the rolls observing, that there was no reason for depriving her of the account, if she was not barred at law.

Shah then the circumstance of her having sued at law for her dower, and in equity afterwards for her rents and profits make any difference in this respect? We think not. The character of the claim, and all the legal principles which might go to support or defeat it remain unchanged, and ought to be applied to it, when presented to the court in this isolated shape, as would attach to it, when combined with a claim for dower.

The decree of the Chancellor is reversed with costs, and this court, when an account shall be prepared by an auditor to be appointed by this court, will decree rents and profits from the time of the demand proven in the cause; which rents and profits are to be estimated according to the improved value of the premises, from the time the improvements were made.

DECREE REVERSED WITH COSTS IN ROTH COURTS,