78 W. Va. 176 | W. Va. | 1916
To judgments for plaintiff in twro separate actions of as-sumpsit, tried by the court in lieu of a jury upon an agreed statement of facts, defendants bring error.
Plaintiff claims as assignee of Hattie E. Street, who was formerly the wife of Wm. H. Nicholson, Jr., now deceased, one-third of the rents and profits of two houses and lots in the city of Fairmont, for a period of 13% months, beginning October 21, 1911, and extending to December 10, 1912, based on the alleged dower right of said Hattie E. Street in the lands of her deceased husband, Wm. H. Nicholson, Jr. After his death, which occurred in August, 1909, a suit was brought by his administratrix, Mary Nicholson, against Alice Turner
The two lots now severally owned by the defendants are a part of the land which Wm. H. Nicholson, Jr., so settled upon 'his wife, who is plaintiff’s assignor. The conveyance of those lots from Nicholson to his wife was indirect, having been made by him first to Thomas W. Powell, and by said Powell
The foregoing appears from an agreed statement of facts filed in the records of the two cases, which are identical in all respects, except the lots. The parties also agree: ‘ ‘ That the only question involved in this action is the question of law to-wit, whether or not under the foregoing statement of facts the said Hattie E. Street is entitled to dower in said real estate of which her said husband died seized, and if it be decided by the court that she is entitled to dower in said properties then it is agreed that she is entitled to one-third of the sum of $22.50 for thirteen and two-third months which is the sum of $102.50 with interest thereon from the 10th day of December, 1912, until paid.” The same amount is claimed by plaintiff in each case.
Counsel for defendants 'insist upon the three following legal propositions, viz.:
First. That neither dower or any of its incidents can be recovered in an action of assumpsit; that, as dower had not been assigned, the only remedy is by suit in equity. True equity has jurisdiction in matters pertaining to dower, but that jurisdiction is not exclusive. Sec. 9, eh. 65, Code 1913, says ‘ ‘ dower may be assigned as at common law. ’ ’ At common law it could be assigned by the heir or devisee, and generally was so assigned, if the heir or devisee was sui juris. Moore v. Walker, 2 Rand. 418; and 2 Min. Inst. 137. The statute also provides that dower may be assigned by the circuit court on motion, made either by the widow or any of the heirs or devisees, upon reasonable notice to all parties interested, by commissioners appointed by the court. Although
The second proposition is, that the right of action, asserted by plaintiff in these cases, as assignee of Hattie E. Nicholson, passed by her deed of December 10, 1912, and now belongs to E. M. Showalter. That deed does not purport to convey the grantor’s right of action for accrued damages, but only her •estate in the land. Of course it carried any rent or damage, subsequently accruing, as appurtenant to the estate conveyed, but not rent or damage already accrued, because although growing out of the real estate, it was then distinct from the land. As to such rent or damage, the widow’s right of action was complete at the time of the conveyance, and was a mere chose in action and did not pass with the land, and was not included in the terms of the deed. 2 Min. Inst. (2nd ed.), 681.
The third proposition is that, plaintiff’s assignor was not entitled to dower in the lots now owned by defendants,, for two reasons: (1) because her husband was not seized thereof
It is not necessary' for us to determine what effect the failure of consideration for her release of dower had upon Hattie E. Nicholson’s right to claim dower in other lands of her husband, as that question is not here involved.
The judgment is reversed, and, seeing from the agreed facts that plaintiff is not entitled to a judgment against either of these defendants, in any event, judgment will be entered here foi them. . Reversed and rendered.