49 Mich. 392 | Mich. | 1882
Plaintiff sued defendants in ejectment for lier dower interest in the estate of her deceased husband, who was a tenant in common with them, and recovered a judgment against them for the undivided one-third part of five-twelfths of the land in controversy.
The present proceeding is under a suggestion to recover mesne profits, and she recovered a judgment for $166.66, on which defendants bring error. It was conceded on the trial that she should recover this sum if any, and the chief defense is that she had no right of action at all.
"We do not see how this question can be raised on this record. The statutes expressly authorize a widow to bring ejectment for dower against strangers as well as against her husband’s heirs, and only discriminate by giving her damages against heirs from the time of her husband’s death, and against other persons from the time of demand. Comp. L. §§ 6205, 4293. As she actually recovered judgment and it stands unreversed, it cannot now be disputed. Neither do we see how any notice can now be taken of a mortgage given for purchase money by her husband and other co-tenants, on the premises in question, with other lands, from which these premises were released before foreclosure, on payment of certain moneys by one of the defendants. If this payment, not made by an heir of the husband, could be considered at all, (which is open to question under section 4274 of the Compiled Laws, whereby a deduction is to be made from the value of the dower in favor of any heir or other person claiming wider the husband) it does not appear to be open in an action for mesne profits, but should be shown in estimating the right of dower. The statute apparently has left all mortgage rights not in the hands of the mortgagees or the husband’s heirs, to be settled, if at all, in some other way. Without determining whether or no defendants had, under their proposed showing, any claim which could have affected plaintiff’s dower right at all, we have no doubt it cannot affect it in these proceedings, and the testimony offered on that subject was rightly excluded.
The right of dower being established by the verdict in
