23 Pa. 447 | Pa. | 1854
The opinion of the Court was delivered by
In Leineweaver v. Stoever, 1 W. & Ser. 160, it was held that the acceptance by the wife of her distributive share of her husband’s estate under the intestate law, did not bar her action of dower in lands which her husband had conveyed to a stranger, and which formed no part of his estate at his death. In Borland v. Nichols, 2 Jones 43, the same principle was applied to the ac
It is true that a conveyance of her right of dower to a stranger, for a consideration moving from him to her, could not sustain the plea of a release to the defendant who had no privity with such stranger. The suit might, notwithstanding such conveyance to a stranger, be carried on for her use in the name of the demandant. This is all that was decided in Pixley v. Bennett, 11 Mass. 298. In Massachusetts, a conveyance to a party out of possession passes no estate, and is therefore not evidence under the general issue in a writ of entry: Wolcot et al. v. Knight et al., 6 Mass. 420. And in an action of dower the tenant, who does not claim under such conveyance, and who is an entire stranger to the consideration, cannot set it up as a defence. If it passed no right, it was clearly
This disposes of the whole case, and renders it unnecessary to discuss the other questions raised in the assignment of errors.
Judgment affirmed;