Shirtz against Shirtz, 5 Watts 255

The opinion of the Court was delivered by Kennedy, J. The court below were clearly right in rendering judgment for the plaintiff. The judgment, recited in the scire facias, is such as the demandant was entitled to have upon the verdict of the jury in her writ of dower; and, therefore, the short entry made by the clerk, of “judgment on verdict,” must be considered as having been carried out afterwards in that form.

And it having been proved, to the conviction of the jury on the trial, that the husband of the demandant had alienated the land, of which she sought to recover dower, during the marriage, and consequently did not die seised of it, the jury had nothing to do with the annual value thereof at any time, neither at the time of alienation nor at any other; therefore, that part of their verdict may be regarded as surplusage, or rejected altogether. This is according to what was done in the cases of Lineweaver v. Stoever, 17 Serg. & Rawle 297; and Benner v. Evans, 3 Penns. Rep. 454.

It has, however, been argued that the judgment upon the verdict ought to be considered as a judgment to recover one-third part of the land according to the value of it at the time of the alienation; and that the judgment not being so recited in the scire facias, the plea of nul tiel record is sustained. Such, it is true, would appear to be the form in which judgment is given in such case in the state of New York, when the jury find that the husband did not die seised.

And this form may be very proper there, because it seems to be settled in that state, that the widow is not entitled to the benefit of any increase or rise in the value of the land that may have taken place, independent of the improvements made thereon, from the general progressive state of the improvement in the surrounding country, from the time of alienation to the time of recovery. But in this state it was held, in Thompson v.

Morrow, 5 Serg. & Rawle 289, after two arguments by counsel, and great deliberation by the court, that she was entitled in the case of land alienated by her husband during the marriage, to be endowed of it according to the value at the time of assigning the dower, excluding therefrom merely the value of the improvements made by the purchaser and terre-tenants subsequently to the alienation. And this has been considered the settled rule on the subject ever since, and meets the entire approbation of the court now as well as in time past.

But such a judgment, as the counsel for the plaintiff in error contend for, would come in direct conflict with this, because it would restrict her to one-third part only of the land according to the value of it at the time of alienation, though it might have risen in value from that time more than one hundred per cent, without any improvement whatever having been made thereon by any person. Such a judgment, therefore, would go to defeat the demandant, at least in some cases, of what has been determined and settled to be her just right.

Where the land has not risen in its value, except from improvements made on it by the purchaser or tenants subsequently to the alienation, such judgment might answer the purpose, because it would in that particular case be giving to the demandant all she had any right to claim.

But it is certainly more convenient, and indeed indispensably requisite, in order to secure to the demandants in all cases what they are injustice and by law entitled to, that that form should be'adopted and observed, which is best suited to enable the sheriff and the inquest, on the execution of the writ of seisin, to give to the plaintiff in each particular case such portion of the lands as, according to the rule mentioned, she shall be entitled to.

The form recited in the scire facias seems to meet fully the exigency of every case that can arise; for upon it the demandant has a right to sue out a writ of seisin, directed to the sheriff of the county, whose duty it will be to execute the same according to the law of the case, or in other words according as he and the inquest summoned to his aid shall find the slate of facts to be.

And in the present case, for instance, it would be his duty, in conjunction with the inquest which he shall call to his aid in tbe execution of the writ of seisin, to lay off by metes and bounds one-third paft of the premises mentioned therein, according to their value at the time of doing so, leaving out of the estimate merely the value of the improvements made thereon, if any, since the time of the alienation by the husband.

If the rule, which ought to govern the sheriff and the inquest in the execution of the writ of seisin, should happen to be misapprehended or not observed by them, the court, on the writ’s being returned by the sheriff, at the instance of the party aggrieved, has it fully in its power to grant such relief as shall be necessaryin order to do complete justice between the parties, and to obtain a due execution of the writ by giving to the demandant what is her just right and no more. This matter is fully explained, and the same rule mentioned above laid down in Benner v. Evans, 3 Penns. Rep. 456, 457.

We, therefore, think the plea of mil tiel record was disproved by the record produced, and that the plaintiff below was entitled to judgment upon the issue joined thereon. The second and third pleas are perfect nullities, and no answer whatever to the plaintiff’s demand. She had made no claim to money under her judgment; nor can she be compelled to accept of it. She has a judgment to recover one-third part of the land; and nothing but that, without her own consent, can be made to satisfy her. Judgment affirmed.