Smith v. Cunningham
79 Miss. 425
Miss.
1901
Check Treatment
CalhooN, J.,

delivered the opinion of the court.

Cunningham went into possession and performed every act characterizing ownership, and it was known as his land, and so called. He had some sort of claim by written instrument from Wyatt Smith. Brittain Smith recognized this, and claimed to have paid Wyatt a balance due on it from Cunningham, saying he had done it for his wife, who was Cunningham’s widow. This payment, of course, simply inured to the benefit of Cunningham’s heirs. If Brittain Smith desired to regard it as a lien *430on the land, he should have taken an assignment, and seasonably asserted it as a debt. Cunningham lived on the property about four years, and died in possession of it, leaving his widow and children living on it. No dower was ever allotted to her during her life. She subsequently married Brittain Smith, and she survived him. If she was entitled to dower when Cunningham died, in 1853, it will not do to say that it was merely a chose in action, and became the property of her next husband, Smith, when he went on the property as her husband. Even if under the law as it then existed, dower was such a chose in action as vested in the husband on his reducing it into possession, this cannot occur before its allotment. Wallis v. Smith's Heirs, 2 Smed. & M., 225. Plere dower was never allotted. The widow and children simply remained on the property, and there never was any possession by the widow hostile to her Cunningham children. On the contrary, she recognized their right, but wanted her Smith children to have a share, and destroyed a deed in the confessed effort to accomplish this. Clearly, her occupation of the premises commenced in subordination to Cunningham’s title, whatever that was, and it is not shown that it ever assumed an adversary character. Rothschild v. Hatch, 54 Miss., 554; Harvey v. Briggs, 68 Miss., 60; 8 South, 274; 10 L. R. A., 62; Pickett v. Buckner, 45 Miss., 246.

Affirmed.