Mellen C. J.
at the succeeding term delivered the opinion of the Court as follows:
At the hearing of this cause we listened with much pleasure to the learned and able discussion of its merits; and having since examined most of the authorities to which we have been referred, we have at length arrived at what we believe to be a correct and legal conclusion.
In the argument two questions have been presented for our consideration—
1. Was the action rightly commenced against the two tenants jointly ?
2. If not, can the tenant Gooding, the other tenant being defaulted, now object to this joinder, and thereby defeat the action, no plea in abatement having been put in ?
The statement of facts shews the respective characters and rights of the two tenants, their relation to the demandant, and to each other.
[46]*46At the commencement of the action they were tenants of the freehold in severally, of distinct parcels of the premises whereof dower was demanded.
Numerous authorities were cited and arguments urged to prove that the seizin of the dowress is, in consideration of law, a continuation of the seizin of the husband, as to priority of right of dower and the mode of assignment.
We deem this principle of law to be well settled, subject to certain limitations hereafter mentioned; and we shall not dwell upon this part of the case, but proceed to the examination of some others, involved in a degree of doubt and uncertainty.
As a consequence flowing from the principle just stated, the counsel for the demandant contends that the original seizin of the husband entirely overreaches and defeats every kind of subsequent seizin that may be acquired after his alienation or death.
Our statutes provide two modes by which a widow may obtain the assignment of her dower; and one or the other of these modes is to be adopted, according to circumstances.
In those cases in which the husband dies seized, provision is made for the assignment of dower by the Judge of Probate; and in such cases this course is almost universally pursued. It is a subject peculiarly appertaining to the jurisdiction of the Probate Court,—and in the case of Sheafe v. O'Neil, 9 Mass. 9. it is considered as the correct mode of proceeding. But the power of the Judge is confined to those cases in which the husband dies seized. If, in his lifetime, he had parted with the estate, and the assignee holds and owns it, the jurisdiction of the Probate Court does not extend to it. In such cases, and such only, is it necessary to institute a suit at common lavr:—perhaps we may say that in such cases only can it be proper so to do.
It seems to be admitted that the husband, in his lifetime,may, by his conveyance, in some degree impair the widow’s right of dower, though he cannot defeat it:-*—that is to say—if he should die, not having alienated anytportion of Lis estate, his widow could legally be endowed in solido;—but if he should convey his estate to four different persons, one distinct parcel to each, and die, the widow must demand and receive dower of the four different grantees, in four different parcels ; and this [47]*47may essentially impair the value of her dower, though not in any degree lessen the proportion. The case of Porter v. Wheeler, 13 Mass. 504. seems to adopt and proceed Upon this principle. It recognizes the power of the husband to affect the widow’s rights to a certain extent by his act of conveyance, and impair them by qualifying the mode of her enjoyment of them.
The case of Porter v. Wheeler goes no further than to declare the effect of a sale and conveyance by the husband of a part of the estate, to one person, he continuing to own the residue ; and this is supposed to be essentially different from the case where the husband conveys the whole estate to one man, and this grantee afterwards, and in the lifetime of the husband, makes a division of the estate, by selling it to too persons, in two distinct parts. According to the argument of the demandant’s counsel, the widow', in this latter case, might demand her dower against these two after-purchasers jointly. The question is deserving of consideration, whether there be any legal distinction in the two cases. Where the husband conveys the estate to two or more in severally, the act is admitted to bind the wife, to a certain extent;—and the reason is, because it is his act, bv virtue of which the partition is effected. Now is it not his act, w hich causes the partition in the other case stated. If the husband sells his estate to A. and B. in equal parts in severalty, he then directly makes the division:—if he sells the whole estate to C. who sells it to A. and B. in equal parts in severalty, then the husband makes the division indirectly :—and it would seem that when this second conveyance is made by C. to A. and B. in the lifetime of the husband, the consequences as to the widow', in respect of dower, would be the same. In the one case, the husband divides the estate himself and by his own deed ;—in the other, he sells the whole estate, and parts with all control over it; and thereby expressly authorises his grantee to divide the estate into as many parcels as he may think proper.
The facts in the case of Porter v. Wheeler, and other cases bearing on this point, did not require an examination of the principle of law as to the operation of the husband’s deed, except where he made the partition by his own immediate act: but we apprehend the same principle must be applied in the case where the partition of the estate is made by an assignee [48]*48of the husband, before the widow comes forward to demand her dower. In both cases it is the act of the husband, mediate or immediate, which creates the severance of the estate, and, to the extent before mentioned, qualifies the rights of the widow.
The next inquiry is, whether the principle which we have been examining is applicable to the case before us. It does not appear that Fosdick, the husband of the demandant, ever did in his lifetime alienate the estate in question by any legal act or instrument:—but still he did not die seized of it, because the United Stales extended their execution upon it to satisfy a judgment they had obtained against him for a debt which he owed them. He did not redeem the estate within the time by law allowed for.its redemption, whereby it vested absolutely in the United States. This is a statute-purchase of the estate;—differing from a common purchase only in this, that the price was determined by indifferent judges, and the transfer of the fee was not purely voluntary:—but the effect of the extent was to pass all Fosdiclc’s title and estate in the premises, and his deed could have done no more. Why should any legal distinction exist between the two cases, in relation to the widow’s dower ? If the husband can to a certain extent, impair her dower as to the mode of enjoying it, by a conveyance by his deed, why should not a conveyance by extent have the same effect, it being made to satisfy a judgment, and thereby to discharge a debt which the husband had an unquestionable right to contract, in regard to the point under consideration, what difference can there be between a husband’s contracting a debt of 1000 dollars, and paying it by a piece of real estate which he conveys to his creditor by deed; and his suffering himself to be sued for the debt, and the same land to be taken by execution in satisfaction of the debt. ? If then the extent be, similar, in its effects, to a deed from Fosdick to the United Slates, the question will not be varied by the subsequent conveyances from the United Stales to Paine, and from Paine to Graffam; as these owed their origin to Fos-dic'ds acts, in contracting a debt to the United States.
Thus, by the act of Fosdick, the estate in question was once the property of Graffam, whereby Ann Graffam., his widow', became entitled to her dower; and her husband dying before [49]*49Fosdick, that dower has been assigned to her, in virtue of which assignment she now claims and possesses a portion of the premises described in the writ, and Gooding, as purchaser, claims and possesses the residue, including the reversion. Each of the defendants is tenant in severalty of a sufficient estate,— one owning and possessing a freehold, and the other a fee-simple.
If this reasoning be correct, it seems to follow conclusively that the tenants were improperly joined, in this action.
But we proceed to examine the cause on other grounds, and independently of the analogies above suggested.
it does not appear in more than one or two of the ancient cases cited, whether the defendants, who were joined in an action of dower, were several or joint occupants and tenants of the freehold :—as in the cases cited from Rastall 235. Dower. Viner, Dower M. a. 2. 7 H. 6. 33. 34. The case from Fitzher-bert, relied on by the counsel, is open to the same remark, The terms “several tenants” do in no wise imply, in all cases* that they were tenants in severalty, of distinct parcels. The word “ several” is often used numerically. The same remark as to uncertainty is admitted by the plaintiff’s counsel to be applicable to the case from 3 Ld. Raym. 151. The case cited from Viner 275. Dower L. a. 9. is equally uncertain as to the nature of the tenancy, whether joint or several. Neither can anything certain be inferred from the passage cited from the note in 3 Chitty on Pleading 593. The words are—“ The action of dower should be brought against all the tenants of the freehold.” Does this mean several tenants ? Certainly not.
With this uncertainty before us as to the precise nature of the facts in many of the old cases, it may afford us light to look into books of more modern date. The learning and indefatigable research of Chitty entitle him to much respect as a special pleader. In his 3 Vol. 601. we are furnished with the pleas in an action of dower against too persons. They were submitted; to the examination of Mr. Warren, who gave the following opinion :-As there is in this case a separate tenancy, there ought “to be separate actions; and the defendants having severally "pleaded non-tenancy, 1 think the action ought to be disconlin- “ ucd and new ones brought against each respective tenant.'''’ The “ non-tenancy” which each one pleaded must have been as to [50]*50pari only of the premises ; otherwise a new action would not have been commenced against each. This last cited passage seems to explain the other, above quoted from the same volume.
Booth, in many places, speaks of the similarity of the pleadings in actions of dower to those in other real actions.
Some years since, it was usual in writs of entry, to declare against a number of disseizors in one writ, although they were in possession of different parcels of the demanded premises, and each claiming independently of the others. Many causes commenced in this manner, were finally decided •—but in an action pending when the late Chief Justice Parsons came upon the bench, he corrected the practice, and by consent of parties all the tenants but one were struck out of the writ. Since that time, it has uniformly been the course of proceeding to commence actions against each tenant who claimed and occupied in severally. The principle is clearly stated in Varnum v. Abbot & al. 12 Mass. 480. In this manner the confusion arising from the trial of distinct and different rights in the same action has been avoided, and legal principles and forms of proceeding have been restored. The same convenience results from adopting similar principles in actions of dower. If separate tenants are joined in actions of dower, questions distinct and independent in their nature may require decision. One may plead a release of dower as to the premises he holds in severalty;—another may plead that there has been no demand ever made by the plaintiff;—in fact there may be as many distinct trials as there are parties. Nothing but consent on the part of the defendants can render such a mode of proceeding admissible.
But it is contended that Gooding being the owner of the reversion, stands in the place of the heirs of Graf ant;—that there is therefore such a privity between the defendants, that he ought to be joined in the action with Ann Graffam, the widow and tenant in dower; because he would be liable to voucher to save his estate ;—and that by such joinder, the delay of vouch mg would be avoided. But this delay cannot be the ground of any argument; and perhaps, according to our practice, no such voucher would be necessary or proper. The proceedings ⅛ our Courts respecting voucher to warrant are essentially vari* [51]*51ant from those in use in England, either formerly, or at the present day ; and we cannot reason from these with accuracy or safety. With us, the warrantor of the tenant may be vouched ; but yet he is never joined in the action originally, and he need not come into Court after he is vouched. The object in view, and the advantage, in vouching him is that the record of the proceedings and judgment in the action against the tenant, may become legal evidence in an action to be brought by the tenant against tiie warrantor or his representatives, on his covenants. We therefore do not particularly notice the numerous authorities on this head cited by the demandant’s counsel, as we consider the application of them to this cause as, at least, very doubtful. Besides, it should be remembered that Gooding owns a part of the estate in fee-simple, exclusive of the reversion, to which the foregoing objection cannot apply.
But if the cases cited from the early Year-books did shew explicitly that several tenants, holding distinct parcels in severalty of the lands whereoi dower was claimed, were joined in one action ; still there exists an argument with us against such joins dcr, which did not exist at that time in England,
Before the statute of Merton, 20 Hen. 3. chap. 1. no damages were recoverable in actions of dower, even against the heir, in those cases where the husband died seized:—and against the assignee of the husband that statute gave no action. But by our laws, damages may be recovered after demand, in all cases, against the person having the legal estate; as is settled in the case of Parker v. Murphy, 12 Mass. 485. If then a joint action of dower can be maintained against several persons, claiming and holding distinct parcels, the consequence will be, the assessment of joint damages, in cases perhaps where some of the defendants may be unable to pay their proportion ; and of course those who are of ability must pay the whole, and seek their remedy against one or more co-defendants unable to reimburse them. Besides, it may appear on trial that much larger damages ought to be recovered against some of the defendants than against others.
There is another argument deserving consideration, which tends very plainly to shew the impolicy, if not injustice, of allowing a joint, action of dower to be maintained against several [52]*52persons holding in severalty parcels of the estate formerly be^ longing to the husband ;—whether they hold as immediate, grantees under him, or as assignees of such grantees;—and strengthens the argument in favour of the principle we would establish. If the husband in his lifetime sold the estate to J. B. and C. in distinct parcels without warranty, each purchaser would estimate the loss which he might sustain should the wife of the grantor survive him, and demand her dower. Or, if the husband sold with warranty to each, he could estimate very nearly the sum in damages which each grantee could recover of his representatives, if the wife should survive and demand her dower. Now in the case stated, it is admitted that several actions of dower must be brought. Suppose the husband sold the whole estate to A. and he sold it in three distinct parcels to B. C. and D. If A. gave no warranty to either of these purchasers, the price given by each would be regulated in some degree by the liability to dower, and the consequent reduction in value, This diminution could be estimated by each purchaser; and thus he would make his contract with understanding and fairness. But if the principle contended for by the plaintiff’s counsel be correct, a joint action might be maintained against B. C. and D. and the dower be so assigned as to swallow up the whole tract conveyed to B. who would thus be left destitute of any remedy, and actually suffer a loss three times greater than he anticipated or had any reason to expect. And if A. sold to each with warranty, still B. might be placed in the same situation, should his warrantor prove unable to indemnify him on his covenants. It is true the chance of future insolvency must always be taken by the purchaser in cases of warranty ;—but this is no good reason why a principle of law should be adopted or sanctioned, by which such purchaser should be compelled to incur the hazard of losing three times the amount, which was contemplated cither by him or his grantor. The inconvenience and injustice in the case last supposed, of a division of the estate by the grantee of the husband, are equally as great as in the case where the husband himself makes the division by his own deeds ;—and it does not readily occur to us what sound reason there can be why the same le, eal principles should not be applied to both ; or why, in cither. [53]*53case, an action of dower should, in this State, be maintained against grantees, jointly. We cannot perceive any justice or reason in requiring a course of proceedings leading to such results, introducing inconveniences and perplexities, and often producing losses and damage which cannot be repaired.
We do not consider our statute as in any manner altering the common law with respect to the mode of declaring in actions of dower, by using the plural expression ii persons,” in describing those against whom the action may be brought. The words of the statute may be satisfied by supposing them to mean all persons claiming right or inheritance in the estate jointly. But we need not resort to such arguments, because this kind of language is common in statutes where a joinder of different offenders, debtors, or delinquents in the same indictment or action was never contemplated by the legislature.
Under this head we will mention one argument more, which does not seem to admit of an answer.
According to all the authorities upon this subject, it is perfectly clear that in real actions, and, among others, in actions of dower, several tenancy may be pleaded in abatement, and that it is a good plea. This principle seems to be as clearly laid down, as the principle that in actions of assumpsit the omission to join all the joint promissors as defendants may be pleaded in abatement, and that such plea is good. The authorities as to the plea in abatement of several tenancy will be noticed under the next head. They establish the principle that in actions of dower several persons, claiming, holding and owning distinct parcels of the estate whereof dower is. demanded, cannot legally be joined as defendants in the same action. The books shew, with equal clearness, that in actions of assumpsit all the joint promissors must be joined. A joint action in the one case, and an action not embracing all the joint promissors in the other, cannot be maintained, unless in the real action the exception to the joinder, and in the personal action to the non-joinder, has been waived, either expressly or by implication.—This leads us to the consideration of the second question presented by the case.
2. Can the tenant Gooding now object to the joinder of the two tenants in this action, no pica in abatement having beets [54]*54filed in the case ;—or, in other words, must several tenancy be pleaded in abatement ?
In England, non-tenure is pleadable in abatement only. Booth, 28. Comyn’s Dig. Abatement F. 14. The same principle was recognized in Massachusetts in the case of Keith v. Swan, 11 Mass. 216. Afterwards in the case of Prescott v. Hutchinson, 13 Mass. 440. it was decided that a disclaimer was good as a plea in bar, having long been used as such ;—and in Otis v. Warren, 14 Mass. 229. it was decided that rum-lenure might also be pleaded in bar. If therefore the present action had been commenced against Gooding only, and he had pleaded in bar non-tenure as to all or a part of the premises described, such plea would have been good here, though not in England. As to the plea of several tenancy, it does not appear, by any decisions in Massachusetts, to have changed its original character. In the English books of authority it is always considered as a plea in abatement. Booth 34. Rast. Ent. 365. a. 6 Jacob's Dict. 68. Comyn's Dig. tit. Abatement F. 12. “If an action be sued “ against several, it may be pleaded in abatement that they hold K severally.” “ So in a mart d'ancestor several tenancy is a good pica.” “ So in dower.” See also 3 Chitty 601. 602. Though [55]*55it is said in the books quoted, that several tenancy and non-tenure may be pleaded in abatement, the meaning is that they must be. They are classed among those things which may be pleaded in abatement, as distinguished from those which form another class and are pleadable in bar. By omitting to plead his several tenancy, the tenant Gooding must be considered as having waived all objections to the form of the action, and he is now precluded from urging them on the trial of the merits. [56]*56The authorities on this point are clear, and they settle the question in favour of the demandant.
[54]*54The members of the profession are indebted to the demandant’s counsel for the following note of the case cited in his argument, decided in the Supreme Court, of Ntra-Hampshire, in which the opinion of the Court was delivered by tire learned Chief Justice Smith.
CHESHIRE, Suvreme Court.1 > SALLY GEER v. War. HAMBLIN. May Term, 1808. y
Diiweb, (writ date 2d September, 1806,)—the writ in the form prescribed by statute p. 153.—The p'aintiff vat the wife of Shubad Geer, late of Charleston and demands her reasonable dower of a messuage, &c. ill Charleston, bounded as follows, fee. which was in the seizin and possession of the husband—whereof he was seized in fee during the coverture.—The defendant pleaded several pleas. The third plea in bar was, that on the 1 st May, 1777, at Charleston ore John Hubbard was married to Prudence Hubbard that afterwards and beiorc the said Shubael is supposed to have been seized, viz. the same 1st Jlne, 177“, the stdd John Hubbard was seized of the said messuage in fee ;— that .d'tu'vyards, and before the commencement of this suit, viz. 30.⅛ JJuy. 1 "0G, the said John Hubbard died and the said Prudence survived him and iherebv became, and still continued, legally entitled to demand and recover against the defendant her reasonable dower of the said messuage, of the en [55]*55slowment of the said John Hubbard her husband which the defendant is ready to verify, &c. Demurrer and joindsr.
C. Ellis, for the Defendant.
Chamberlain, for the Plaintiff.
The opinion of the Court was now delivered by the Chief Justice.
The question is whether the matter set forth in the plea in bar, viz. that another widow,—the widow of one prior in seizin, has a claim of dower in the same lands,—is a bar to the plainfiff’s recovery ? To constitute a good bar it must be shewn that the plaintiff has no right. That two widow’s should be endowed out of the same messuage is no novelty. (See case put by Swift J. p. 254, 5.) The case put by Perkins, see, 315, and noticed by Lord Coke in his commentary on Littleton, shews that this may be the case in England. fCo, Litt. 31. a. Watk. 49. London ‘2d Ed.J This plea is therefore bad, unless it can be maintained that Shubael Geer, the husband of the demandant, had no seizin in deed or in law during the coverture in the premises described in the writ, and that is the matter to be tried on the first issue. The only objection Stated to his seizin in this plea is, that another person was seized before him whose wife is entitled to dower. But how does this shew that Shubael Getr had no seizin !—To constitute a claim to dower it is not necessary that the husband should be seized of an indefeasible estate, though Shubael Geer had such an estate. Lord Coke puts the case of grandfather, father, and son ; and the grandfather is seized of three acres of land in fee, and taketh wife and dieththe land descendeth to ihe father, who dieth, either before or after entry, the wife of the father is dowableclearly the wife of the grandfather is dowable. (3 Bac. Abr. 367. Perkins 420. 1 Inst. 31. a. Perkins sect. 315. F. N. B. 351.) Here there are two widow's dowable. The grandmother will have an acre for her dower; and the wife of the father shall have a third of the remaining two acres, because her husband was not seized in deed or in law of the part which constitutes the dower of the grandmother. Her title to dower is paramount the title of the father. She is in from her husband and not from the heir. Her estate is, as it were, the continuance of his —that is_ the husband’s—the heir has only a reversion. Watk. 84. Her title is more favoured than bis by descent, though the heir is an object of favour in the English law. Instantly on the death of the grandfather, the father was seized of the two thirds. Of tile one third his seizin was defeated bv the grandmother’s title to dower. As to this he has only a reversion expectant upon a freehold, which is not a seizin which entitles tiie wife to dower. When ihLi [56]*56grandmother dies, the father’s wife shall not be endowed of this one third, and this is a case w here dos de dote peti non debel. Here the father’s title was by descent, and two widows are endowed in the same messuage, one of one third, and the other of one third of the residue, that is, two thirds. (Watk. 94.)
But the case farther supposes that the grandfather had enfeoffed (he father.— In this case the wife of the grandfather on his decease would have for dower one third of the whole, and the wife of the father one third of the remaining’, two thirds. And in case of the death of the grandmother before the father’s-wife she would have dower in the other third, that is, doe de dote. For here the husband was seized and his seizin is not defeated by his mother’s dower. ( Waik. He is not seized so as to defeat the right of the grandmother to dower ; but so as to g-ive his wife title to dower in the whole, when the grandmother’s title to dower ceases. If the falh&t die first and his wife have her dower assigned, the grandmother can maintain her writ of dower against the mother. Ci'alh. 98. sic. J Apply that to this case. We may suppose John Hubbard conveyed to Shubael Geer, and he to defendant. On the death of John Hubbard his wife was entitled to dower, because John Hubbard was seized. On the death of Shubael Geer his wife was entitled to dower, for the same reason. Bat as her husband was seized subject to Prudence• Hubbard’s claim to dower that claim must be satisfied. Sally Geer will therefore be entitled to one third of two thirds and one third of the remaining one third— that is, of the whole—on the death of. Prudence Hubbard.
It would seem therefore clear that it is immaterial as to the rights of the. parties which died first, John Hubbard or Shubael Geer. The after-seizin is good except quoad the prior claims to dower.—Supposing this to be the present case, the plaintiff is entitled to recover her dower one third of the whole, liable to be reduced to one third of two thirds if Mrs. Hubbard should be pleased to demand her dower; which it isnot likely she will, the estate of her husband being solvent. But this is a matter of which William Hamblin, the defendant, cannot avail himself, .ds against him the demandant has a good claim to one third of the whole. If this should be reduced bv Mrs. Hubbard, taking her dower one third of the whole, it is an affair that concerns the two widows. I should suppose that the defendant will not be verv anxious for such an event,.because it will take from him one third and one third of two thirds, that is, five ninths instead of three ninths.
It is absurd to suppose, as this plea does, that the demandant’s right to dower when she has in her favor the three incidents, marriage, seizin, and the death of the husband, should depend on the contingency of another—who has also a right—-demanding or omitting to enforce her right. Lands, subject to a title of dower, were devised to a person in fee, who died leaving a widow. This widow sued for her dower, and recovered a third part of the whole, with, out any regard to the title of dower in the widow of the testator, who did not [57]*57put her claim in suit. Not having recovered her dower it was to be laid out of the case. (Cruise I. 153. Hitchens v. Hitchens, 2 Vernon 403.)
It is strong evidence against this plea that it never was before pleaded. And yet the case must often have occurred. This plea does not state that Prudence Hubbard did not join with her husband in conveying. But it admits an after-seizin in Sally Geer. There must have been a conveyance of some kind from John Hubbard; but as it is stated, that Prudence Hubbard has a lawful claim of dower, perhaps it is sufficient. But the plea is bad in substance; the matter set forth is no answer to the demandant’s claim.
[56]*56We might have decided this last point alone, sparing ourselves the labour of examining the other and principal question. [57]*57But as this was fully argued by the counsel we concluded to give an opinion on that also; especially as it may be useful in regulating the practice in future actions of this nature.
Judgment for the demandant.