Hoxsie Others v. Ellis

4 R.I. 123

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1856
• Status: Published

Opinions

Plea in abatement, that said Olive, the widow of Allen Ellis, has a right to dower in the premises of which partition is sought, and that she has commenced her action to recover the same, and to have the same set off and assigned to her; and that her said action of dower therefor is now pending, c. General demurrer and joinder. Until dower is assigned, it is no estate for life, such as existed in the cases cited, but rests in action only. The right may never be pursued, or if pursued, and an action be pending demanding it, as in this case, there may be a good defence to it, and we cannot try that action in the bowels of this. In the mean time, partition is the inseparable incident of a joint estate; requiring nothing to sustain it but an actual joint seisin, or joint seisin in fact. We never heard before that such an action could be abated, because there was an outstanding claim or right to the whole or a part of the lands of which partition is sought, or because there was a mere lien upon it. This plea must be overruled, although when judgment be rendered that partition be made according to the rights of the parties as declared, it will be in the discretion of the court, whether they will go on now and appoint commissioners to make a partition which may be useless; an action asking that dower be set off in the same lands being actually pending in this court. The defendant must answer over.

The plea in abatement being overruled, the defendant pleaded in bar, First, that at the time of the commencement of the action, Olive Ellis, widow of the said Allen Ellis, had, and ever since had, and now has, a right to have dower assigned to her in the whole of the lands in the declaration mentioned, and hath her action that said dower be rendered to her, now pending in this court, against the defendant; and that said Olive Ellis ought to be made a party to this action; and that Amey Ellis, of Providence, widow of the late Jeremiah Ellis, ought to have her dower assigned to her in a dwelling-house and forty acres of land, part of the lands of which partition is sought in this action; and that heretofore, and in lieu of dower, the parties have paid to said Amey an annual sum; and that the said Amey ought to be made a party to this suit; and prayed judgment, if the plaintiffs ought to have and maintain their action aforesaid thereof against him, c.

Second plea substantially same as first, with an averment, in the nature of a prayer, that a summons should issue to both the said Olive and Amey, in order that they might come in and defend against this suit, and concluding in bar.

General demurrer and joinder.

This demurrer was shortly argued by Wm. II. Potter for plaintiffs, and Cozzens for defendant; the former contending that the same matter had in substance been decided on the plea in abatement; and the latter that the dowresses ought to be made parties to the action, in order that their dower might be set off to them, according to their rights, simultaneously with the setting off of their purparties to the plaintiffs and defendant. For the propriety of the prayer for process to issue to the dowresses, if proper parties to the suit and omitted, he referred to sect. 9 of "Act concerning partition, and estates holden in common and joint tenancy," (Dig. 1844, p. 195,) providing for the issue of summons to persons omitted as parties to an action of partition, when the omission was pleaded. He also referred to the act in amendment of the foregoing act, passed at the January session, 1851, (Public Laws since Dig. 1844, p. 803,) for the purpose of showing, that as the court had the power upon motion by the last-mentioned act, in a suit at law as well as in equity, to order the whole, or any part, of the premises of which partition was sought, to be sold, the dowresses, as interested in such sale, ought to be made parties. He cited to this last point,Green v. Putnam, 1 Barb. Sup. Ct. R. 500.