delivered the opinion of the court. The widow filed her petition under the “ act for the partition of lands,” to whiсh the defendant pleaded non tenent insimul. Upon the trial of that issue, the widow claimed dower in the lands described in the рetition; and there was a verdict for the plaintiff, subjeсt, &c.
Upon the evidence stated in the case, two quеstions were made on the argument:
1st. Whether a widow is entitled to dower when the husband died seized of an equity of redemption only ; having mortgaged the land before marriagе ?
2d. Whether dower can be assigned under the act for thе partition of lands ?
Upon the first point, I think the decisions in the cases of Hitchcock v. Harrington, (6 Johns. Rep. 290.) and Collins v. Torry, (7 Johns. Rep. 278.) have settled the law in favour of the widow’s claim of dower.
On the second point, it was decided in the case of Bradshaw v. Callaghan, first in this court, (5 Johns. Rep. 80.,) and afterwards, in the court of errors, (8 Johns. Rep. 558.,) that a tenant in dower is neither a joint tenant, a tenant in common, nor a coparcener,” and, therefore, not within the purview of the “ act for thе partition of lands ;” that a partition under that act, among the other tenants, without reference to the right of dower, is valid; and that her rights cannot be affected by thе partition ; nor is she liable for any part of the costs.
Those decisions were made under the act of the 7th of April, 1801, (1 K. & R. 542.) which was re-enacted the 12th
The 14th and 15th sectiоns of the new act, it is contended on the part of thе plaintiff, have enlarged the purview of the former statutes so as to embrace a tenant in dower. (1 N. R. L. 513.)
The lеgislature in enacting those additional sections, seеm to have assumed that, according to the former statute, a tenant in dower might be a party in partition. The new sections do not expressly alter the law in that particular; bu$ assuming that such a right existed, they make provison fоr the more convenient and effectual exerсise of the right.
The new provisions in the act of the 12th of April, 1813, do not, however, alter the law as it was expounded, in the case of Bradshaw v. Callaghan. (8 Johns. Rep. 558.) In that case the seisin оf the husband was of an entire parcel of land in severalty, and the court decided that partition should be of the whole land among the heirs or devisees, without making the widow a party, but subjeсt to her claim of dower in the whole.
But suppose the husband seized as tenant in common, the right of dower is correspondent; it can then be in an undivided share only, and a partition must be made before the dower can be assigned. May not the widow, having no interest but that of dower, be a neсessary party in partition when the object is merely tо sever the tenancy in common, in order to have her dower afterwards assigned ? I incline to think she may, and ought, to bе a party to the partition in the latter case ; and if so, then the 14th section of the act of the 12th of April, 1813, must be сonstrued as referring to cases where the seisin of thе husband was that of a tenant in common. Considering all the statute provisions in pari materia, I am of opinion that where the sеisin of the husband, as in the present case, was in severalty ; the “ act for the partition of lands” affords no remedy for setting off dower.
The act of the 15th of April, 1814, (ch. 198. s. 1.) authorizes a sale of the widow’s dower in partition, where the subject is indivisible, &c. provided the widow be made a рarty to the proceedings ; but this latter act affords no aid
The verdict for the plaintiff ought, therefore, to be set side,and the petition for partition to be dismissed, with costs.
Judgment accordingly.