Purrington v. Pierce , 41 Me. 529 ( 1856 )

Hathaway, J.

In an action between these parties, the plaintiff recovered a verdict, January 7th, 1853, for her dower, and damages for its detention. Upon a question of law reserved by the plaintiff, that action was continued in Court until the October term, 1854, when judgment was rendered on the verdiet, for her dower and damages, — Purrington v. Pierce, 38 Maine, 447, — and her dower was duly assigned to her, before the commencement of this suit. The plaintiff seeks, in this action, to recover the rents and profits, which she claims to be due for the use of the premises assigned to her as dower, during the time intervening between the finding of the verdict and the final judgment thereon, and for detention of the same after a demand for the rent, made November 20, 1854.

The mode of proceeding, in an action at law, to recover dower, and damages for its detention, is prescribed by statute. B. S., c. 144. The whole subject was revised by the Legislature, and the statute remedy must be pursued. By that statute, § 5, it is provided that, “ if the demandant recovers judgment for her dower, she shall, also, in the same action, recover damages for the detention thereof.” The statute is imperative that she shall recover her damages in the same action in which she recovers her dower. The action must be brought against the person who is tenant of the freehold when the suit is commenced, although the demand had been made of a prior tenant; and from the fact that the Legislature deemed it necessary, specially, to give an action against such prior tenant, by the statute, § 7, to recover the rents and profits while he occupied, after demand, it may reasonably be inferred that they did not intend that the plaintiff in dower should have a second action, for damages for detention, against the same tenant of whom she had previously recovered judgment, both for her dower and such damages. If the Legislature had so intended, they would, doubtless, have made provision to that effect by the statute, as they did in the case provided for by § 7.

The plaintiff’s counsel argues that the remedy, in this case, is similar to that prescribed for a demandant in a writ of entry, to recover, in the same action, damages for the rents and profits, from the time when his title accrued, as is provided by R. S., c. 145, § § 14 and 15 ; and he contends that the same reasoning which induced the Court, in Larrabee v. Lumbert, 36 Maine, 440, to sustain an action for rents and profits which accrued after the date of the writ of entry, by which the plaintiff had recovered his land, will authorize the maintenance of this suit.

This view of the case entirely overlooks the difference between the legal rights of the demandants, in writs of entry and of dower, and also the difference in the statutes, by which their respective remedies are provided.

The demandant, who prevails in a writ of entry, must have had title, and a right of entry, when he commenced his action, and if entitled, in the same action, to recover rents and profits, the liability of the tenant therefor is defined and measured by the statute, § 15, both as to the amount and time, and limited to the clear annual net value of the premises, for the time, during which he was in possession thereof. The statute gave the demandant, in a writ of entry, no new rights; it only changed the remedy by which he should recover the rents and profits, which had accrued before the date of his writ, and enabled him to accomplish, in one suit, that for which two actions had been previously necessary.

But the demandant in dower has neither title nor right of entry; for, although she have a right of dower, she cannot lawfully enter until dower be assigned to her, or recovered by process of law. The widow has no estate in the lands of her husband till assignment; her right of dower is merely a personal right. It cannot be taken in execution for her debt. It cannot be the subject of a lease. Inst. 34 and 37, B; Bolster v. Cushman, 34 Maine, 428; 1 Greenl. Cruise, tit. 6, c. 3, § 1, and notes; Croade v. Ingraham & al., 13 Pick. 33; Sellars v. Carpenter, 27 Maine, 497.

By the stat. c. 144, concerning the action of dower, no measure of damages is prescribed. It simply and imperatively provides, that the demandant shall, in the same action, recover her damages for the detention thereof; it leaves the whole question of damages open to the jury, to be determined by them, upon the evidence, under proper instructions from the Court.

This action cannot be legally maintained, and a nonsuit must be entered.

Tenney, C. J., Appleton, May, and Goodenow, J. J., concurred.