Archer, J.,
delivered the opinion of this court.
The complainants, on the 2nd of October, 1833, filed their bill in Prince George’s county court, alleging, among other things, that Richard Hill, of Prince George’s county, died seized of certain lands in the said county, leaving one of the complainants his widow, who afterwards intermarried with the other complainant, and that she was entitled to dower in the said lands, and that the complainant Francis L. Darnall, who intermarried with Mrs. Hill in the year 1817, was in the year 1820 appointed guardian of the children of Richard Hill, and received the rents and profits of the said lands as such guardian until the year 1832, and expended said rents and profits in the [395]*395education and maintenance of the children of Richard Hill, except the crops of 1831, which the complainant Darnall passed over to William Hill, one of the children of Richard, Hill, and that since the year 1832, the children of Richard Hill, except Philip Hill, who relinquished his interest in his father’s estate to the other representatives of Richard Hill, have been in possession, and have made large crops of te wheat, corn and tobacco, to one-third of which they allege they are entitled, in virtue of the right of dower of Mrs. Hill.'” And they pray an account of their proportions of the crops and monies by them received, and for other and further relief, as to the court shall seem meet.
The answer to this bill is filed 9th April, 1834, and by this answer the right of dower is admitted, but the claim to the rents and profits is denied.
It appears from the evidence in the cause, that the complainants occupied the land from the day of their intermarriage in the year eighteen hundred and seventeen, until the year 1832, when the lands were given up to the devisees of Richard Hill. It is further proved, that the complainant, Francis L. Darnall, declared, just before and a short time after he delivered possession to the devisees, that he should not claim any thing for his wife’s thirds of her husband’s estate, and there is no evidence in the cause that he interposed any claim until the filing of this bill.
Accounts have been stated by the auditor. The one account A, stating the complainant’s claim from the death of Richard Hill to the time when it is alleged dower was assigned to Mrs. Darnall. The other account B, states the claim from 6th May, 1832, to 6th May, 1838, and besides, allows the complainants one-third of the crop raised on the lands in 1831. In both these accounts interest is allowed.
The complainants having been in possession of the whole lands until 1832, do not seek, in this court, to recover the rents and profits according to account A, but insist that account B is stated upon proper principles, and they claim its allowance at the hands of this court.
[396]*396The allowance in account B, for one-third of the crop of 1831, could not be allowed in this case. The crop of that year, or its proceeds, were, by Francis Darnall, one of the complainants, placed in the hands of William Hill, one of the defendants, from whom, if he be entitled to recover it, he must seek redress in a different form of proceeding, and before another forum. The defendants were not in possession of the lands during the year 1831, but the complainants were in possession, and could have no pretence for charging damages against the defendants for that year, nor do we think the complainants could recover mesne profits at any time before the filing of the bill of the 2nd October, 1833, because, according to the proof, the complainant, Francis L. Darnall, frequently declared that he did not intend to claim any thing for his wife’s thirds of her first husband’s estate, and no contrary intention is manifested until the filing of the bill in this cause. But for this declaration, it is probable, that the defendants would have assigned dower to their mother, and we think, therefore, that it would be inequitable to permit the complainant to take advantage of a course of conduct pursued by the defendants, in all probability, in consequence of the declared intentions of the complainant.
The bill is in artificially drawn, but the widow’s right to dower is distinctly stated; the possession of the defendants is also averred, and that large crops were made on the lands, and although strictly, the widow would not be entitled to one-third of the gross amount of the crops, she would have a right to one-third of the net amount thereof, and she would be entitled to an account of the crops, so that the net annual value might be ascertained, and under the prayers in the complainant’s bill, so far as the frame of the bill is concerned, would be entitled to a decree for one-third of such balance as her proportion of the rents and profits.
No allegation of a demand for an assignment of dower was necessary to have been made in the bill. The heir in possession is answerable for damages, from the death of the husband, even without demand, unless the heir plead tout temp prist; [397]*397and in Park on Dower, 303, it is asserted, that even when the heir plead tout temp prist with success, the demandant shall recover damages from the test of the original to the execution of the writ of enquiry, so that if we were to consider that the answer in this case was equivalent to a valid plea at law of tout temp prist, and that it was put in, in time to be available, still damages might be decreed from the date of the subpoena.
We think the circumstances of this case would preclude the allowance of interest to the complainants, if the cause were in a condition to enable us to decree rents and profits.
It is unnecessary to determine whether the answer was filed in time, admitting a right of dower, and declaring a readiness at all times to assign dower, if it had been demanded, so as to enable us to determine whether damages could be claimed from the death of the husband, or for any period anterior to the filing of the bill, because we have seen that complainants, from other considerations, are not entitled to damages anterior to the filing of the bill.
Whether a claim exists on the part of the heirs against the complainant, Darnall, for the use and occupation of the land from the date of his marriage in 1817, he having occupied the same from that period until 1832, and what, if any, may be the amount of such claim we have not deemed it necessary to examine, because we are satisfied that such a claim could not be set off against the demand of the husband and wife for the wife’s proportion of the rents and profits of the land. The two claims are not due in the same right, and the claim, if recovered in this case, surviving to the wife.
It is said, that as there is no proof of possession in the defendants, after the year 1834, that no decree for rents and profits, accruing after that period, could be passed against the defendants. But if there existed this defect of evidence, we apprehend, as the proofs show the defendants to be in possession, the legal presumption would be, that such possession continued until the contrary is shewn, and according to the practice of the court, the account charging the rents and profits might be brought down to the date of the decree in this [398]
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Archer, J.,
delivered the opinion of this court.
The complainants, on the 2nd of October, 1833, filed their bill in Prince George’s county court, alleging, among other things, that Richard Hill, of Prince George’s county, died seized of certain lands in the said county, leaving one of the complainants his widow, who afterwards intermarried with the other complainant, and that she was entitled to dower in the said lands, and that the complainant Francis L. Darnall, who intermarried with Mrs. Hill in the year 1817, was in the year 1820 appointed guardian of the children of Richard Hill, and received the rents and profits of the said lands as such guardian until the year 1832, and expended said rents and profits in the [395]*395education and maintenance of the children of Richard Hill, except the crops of 1831, which the complainant Darnall passed over to William Hill, one of the children of Richard, Hill, and that since the year 1832, the children of Richard Hill, except Philip Hill, who relinquished his interest in his father’s estate to the other representatives of Richard Hill, have been in possession, and have made large crops of te wheat, corn and tobacco, to one-third of which they allege they are entitled, in virtue of the right of dower of Mrs. Hill.'” And they pray an account of their proportions of the crops and monies by them received, and for other and further relief, as to the court shall seem meet.
The answer to this bill is filed 9th April, 1834, and by this answer the right of dower is admitted, but the claim to the rents and profits is denied.
It appears from the evidence in the cause, that the complainants occupied the land from the day of their intermarriage in the year eighteen hundred and seventeen, until the year 1832, when the lands were given up to the devisees of Richard Hill. It is further proved, that the complainant, Francis L. Darnall, declared, just before and a short time after he delivered possession to the devisees, that he should not claim any thing for his wife’s thirds of her husband’s estate, and there is no evidence in the cause that he interposed any claim until the filing of this bill.
Accounts have been stated by the auditor. The one account A, stating the complainant’s claim from the death of Richard Hill to the time when it is alleged dower was assigned to Mrs. Darnall. The other account B, states the claim from 6th May, 1832, to 6th May, 1838, and besides, allows the complainants one-third of the crop raised on the lands in 1831. In both these accounts interest is allowed.
The complainants having been in possession of the whole lands until 1832, do not seek, in this court, to recover the rents and profits according to account A, but insist that account B is stated upon proper principles, and they claim its allowance at the hands of this court.
[396]*396The allowance in account B, for one-third of the crop of 1831, could not be allowed in this case. The crop of that year, or its proceeds, were, by Francis Darnall, one of the complainants, placed in the hands of William Hill, one of the defendants, from whom, if he be entitled to recover it, he must seek redress in a different form of proceeding, and before another forum. The defendants were not in possession of the lands during the year 1831, but the complainants were in possession, and could have no pretence for charging damages against the defendants for that year, nor do we think the complainants could recover mesne profits at any time before the filing of the bill of the 2nd October, 1833, because, according to the proof, the complainant, Francis L. Darnall, frequently declared that he did not intend to claim any thing for his wife’s thirds of her first husband’s estate, and no contrary intention is manifested until the filing of the bill in this cause. But for this declaration, it is probable, that the defendants would have assigned dower to their mother, and we think, therefore, that it would be inequitable to permit the complainant to take advantage of a course of conduct pursued by the defendants, in all probability, in consequence of the declared intentions of the complainant.
The bill is in artificially drawn, but the widow’s right to dower is distinctly stated; the possession of the defendants is also averred, and that large crops were made on the lands, and although strictly, the widow would not be entitled to one-third of the gross amount of the crops, she would have a right to one-third of the net amount thereof, and she would be entitled to an account of the crops, so that the net annual value might be ascertained, and under the prayers in the complainant’s bill, so far as the frame of the bill is concerned, would be entitled to a decree for one-third of such balance as her proportion of the rents and profits.
No allegation of a demand for an assignment of dower was necessary to have been made in the bill. The heir in possession is answerable for damages, from the death of the husband, even without demand, unless the heir plead tout temp prist; [397]*397and in Park on Dower, 303, it is asserted, that even when the heir plead tout temp prist with success, the demandant shall recover damages from the test of the original to the execution of the writ of enquiry, so that if we were to consider that the answer in this case was equivalent to a valid plea at law of tout temp prist, and that it was put in, in time to be available, still damages might be decreed from the date of the subpoena.
We think the circumstances of this case would preclude the allowance of interest to the complainants, if the cause were in a condition to enable us to decree rents and profits.
It is unnecessary to determine whether the answer was filed in time, admitting a right of dower, and declaring a readiness at all times to assign dower, if it had been demanded, so as to enable us to determine whether damages could be claimed from the death of the husband, or for any period anterior to the filing of the bill, because we have seen that complainants, from other considerations, are not entitled to damages anterior to the filing of the bill.
Whether a claim exists on the part of the heirs against the complainant, Darnall, for the use and occupation of the land from the date of his marriage in 1817, he having occupied the same from that period until 1832, and what, if any, may be the amount of such claim we have not deemed it necessary to examine, because we are satisfied that such a claim could not be set off against the demand of the husband and wife for the wife’s proportion of the rents and profits of the land. The two claims are not due in the same right, and the claim, if recovered in this case, surviving to the wife.
It is said, that as there is no proof of possession in the defendants, after the year 1834, that no decree for rents and profits, accruing after that period, could be passed against the defendants. But if there existed this defect of evidence, we apprehend, as the proofs show the defendants to be in possession, the legal presumption would be, that such possession continued until the contrary is shewn, and according to the practice of the court, the account charging the rents and profits might be brought down to the date of the decree in this [398]*398court, or the Court of Chancery, or the delivery of possession of the dower assigned to the widow.
But the case, as we view it, is not in a condition to enable us to do substantial justice to the parties. There is no legal evidence before us, that dower has ever been assigned under the bill of the 3rd of October, or that possession has ever been delivered to the widow. The bill in the case before us is sufficient in its terms to justify both a decree for dower and rents and profits. It will of course be perceived in the present state of the evidence, we should be at a loss to prescribe the terms of any decree which would meet the justice of the case.
The decree on the bill of the 3rd of October is neither pleaded in bar, nor are the proceedings under that bill made evidence in the case, so that we could found any decree upon them, or take any other judicial notice of them, than to furnish grounds to enable us, under the act of Assembly of 1832, chapter 302, to remand the case for further proceedings in Chancery.
As this case must be remanded to the Chancellor for the introduction of such evidence as may furnish a proper foundation for a decree, and as the bill of the 3rd of October, and the proceedings under it, may be relied upon as a bar to the recovery of rents and profits, we deem it proper to say, as the question has been fully argued, that we do not consider such proceedings a bar to the complainant’s recovery.
It is apparent to us, that the question as to the rights to rents and profits was never adjudged by the court under the bill of the 3rd of October. The right to dower had been assented to in the answer, and the complainants had petitioned the court to appoint a commissioner to lay off the dower, grounded on the assent contained in the answer. After the commissioners had made their return, the case is set down for hearing, and a decree, with the consent of the parties, passes for the widow’s dower. Nothing is said on the subject of the rents and profits, although two commissions had issued, and the testimony of numerous witnesses had been taken, having reference to that question. After this decree had thus [399]*399been taken by consent, the parties under the bill of the 2nd of October, by consent, obtained the decree of the court for an account, and such equities are only reserved, as may be the subject of exceptions to the account when stated. From such proceedings of the parties we deduce the conclusion, that by-mutual agreement a decree was to pass for dower in the one case, and that the question of the right to the rents and profits should be litigated in the other. Unless this were so, it would be difficult to account for the consent with which both decrees were passed, for the silence of the decree on the bill of the 3rd of October, on the subject of the rents and profits, and for the reservation of the parties, equities, on such exceptions as might be taken to the accounts, when stated in pursuance of the decree. cause remanded to chancery.