100 Va. 526 | Va. | 1902
delivei’ed the opinion of the court.
About the year 1858, Harvey Gray, the husband of the appellee, aliened a tract of land by a conveyance in which she did not unite. After her husband’s death, in the year 1812, she filed her bill against the alienee of her husband to have dower assigned her, or if the alienee preferred it, to allow him, as provided by section 2218 of the Code, to retain the whole land upon the terms of his paying her annually for her life legal interest on one-third of the value of the land at the time of her husband’s death. The alienee electing to pay such interest in lieu of having dower in land assigned, the court so decreed, and the cause was stricken from the docket. During the lifetime of the alienee, and for some years aftex-wards, the annual interest decreed was paid; but not having been paid for the years 1896 and 1891, executions were issued therefor and returned “no property found.” The appellee thereupon instituted’her suit in chancery to subject the tract of land in the hands of the heirs of the alienee to the payment of the interest then due and in arreai's, and which was alleged to be a lien upon the land. The defendants made defence, and it appearing upon a hearing of the cause that the decree for interest upon which the bill was based had not been x*evived against the personal representatives of the alienee, and that more than five years had elapsed since their qualification and before the institution of the suit, the
The appellee then filed her bill against the hems at law of the alienee, to have dower in kind assigned her in the land, but did not mention the former proceedings had in reference to her dower as hereinbefore described.
The defendants, in their answer to that bill, set up the proceedings in the former suits, and relied upon them as a complete bar to the appellee’s right of recovery, but asked, in the event the court was of opinion that her right of dower was not baraed by the decrees in those cases, that they might retain the land, and the appellee be required to take in lieu of dower in kind the interest on one-third of the value of the land as it was at her ■husband’s death, as provided by section 2278 of the Code.
Upon a hearing of the cause the court held that the decrees in the former suits did not bar the appellee’s right to recover, and decreed that unless the defendants, within a time named, should elect to pay her the annual interest, as fixed by the decrees in the first dower suit, including the interest then in arrears, dower in kind should be assigned her, and damages be decreed her for its detention from the institution of the suit. The appellants failing or declining to make such election within the time fixed, the court appointed commissioners to assign dower in kind, and rendered a decree for damages for its detention. Trom those decrees this appeal was granted.
The first question to be considered is whether, as appellants 0 contend, the plea of former adjudication relied on in their answer is a bar to the appellee’s recovery of either dower in kind, or of annual interest in lieu thereof.
Section 2278 of the Code was enacted for the benefit of the alienee of lands in which the alienor’s widow is entitled to dower, and permits him to retain possession of the whole land “on the terms of his paying to the widow during her life lawful interest from the commencement of her suit on one-third of the value, at
If a vendor’s lien, or a lien for owelty of partition, is not merged in a judgment or decree therefor, and such lien continues until it is waived, released or satisfied, even though the judgment or decree for it be barred or annihilated, clearly it would seem that a widow’s right to dower in kind ought not to be merged in a decree which provides, in accordance with the statute, that her husband’s alienee may retain possession of her dower interest upon his paying her annually legal interest on the value of her dower when he and those who claim under him have failed and refused to pay such interest. The widow is entitled to dower in kind, or the interest provided in lieu thereof. The appellants having failed and refused to comply with the terms of the statute and the decree which gave them the right to prevent a recovery of dower in kind by the appellee, she was entitled to have dower assigned her, and the court did not err in so decreeing.
Notwithstanding the failure and refusal of the appellants to pay the annual interest provided for in the first suit for dower, the court in the Case under consideration permitted them to elect to retain the whole land upon the payment of the annual interest fixed by the decree in the first suit, and their assuming to pay the interest then due and in arrears under that decree. This action of the court, in so far as it required the appellants to assume the payment of interest which had accrued prior to the institution of this suit, is assigned as error.
But as the appellants failed or refused to make an election upon the terms prescribed by the decree of the Circuit Oou-.fc, the remaining question, raised by appellee’s assignment of error under Bule IX. of the court, is the amount of damages which
As the appellee in her bill in this ease m'ade no reference to her first suit for dower, or to her suit to enforce the lien :of the decree rendered in that case, and. did not rely upon those proceedings for any purpose in her pleadings in this case, her right to damages must be determined as if those proceedings had not been had. This being so-, she was only entitled to damages for the detention of her dower from the institution of this suit in accordance with the terms of the statute. ’The annual rental value of the whole land during that period -being shown to have been three hundred and seventy-five dollars, the Circuit Court properly held that the appellee was entitled to one hundred and twenty-five dollars (one third thereof), annually from the institution of her suit until dower should be assigned, and so decreed.
"We are of opinion that there is no error in the decrees appealed from, and that they should be affirmed.
Affirmed.