Tuck v. Fitts

18 N.H. 171

Opinion

Woods, J.

In general, damages are not, awarded in real actions for the detention of land demanded; but in the action of dower, which is of this class, the statute provides for the recovery of damages in a particular case.

By the Revised Statutes, chapter 205, section 4, “ If the demandant recovers judgment for her dower, she shall also, in the same action, recover reasonable damages for the detention thereof by the tenant,” &c.

In the case before us, by the death of the demandant the action has become abated, and the estate has determined. The recovery of dower has, therefore, been rendered impossible, and the only condition upon which the statute gives the demandant a right to recover damages has irretrievably failed. It is ,not certain that the demandant, if she had lived, would have shown herself entitled to dower, and that question cannot be tried when there is no party who can recover.

Motion denied, and action discontinued.

STRAFFORD, JULY TERM, A. D. 1846.