of Errors had a right to make the amendment requested, as fully ALBANY, as the Court below. Talcot, contra. Per Curiam. There are several insuperable objections to the motion. When one count in a declaration is good, and the others bad, if the judge will certify that the evidence applied solely to that count, or that all the evidence given would properly apply to that count as well as the others, the verdict may be amended by applying it to the good count; and if the evidence did not particularly apply to the bad count, the verdict may also be amended. (1 Caines's Rep. 381. 1 Johns. Rep. 505.) Admitting that one of the counts here is bad, on account of the misjoinder, (a) the amendment can only be made in the Court where the trial took place, and by reference to the judge's notes. It is believed there is no instance of an amendment in a Court of errors, by inquiring into facts dehors the record. There is nothing in this Court to amend by. A Court of errors will either overlook clerical mistakes, or they will amend them in furtherance of justice, where there is any thing to amend by: it would not, in this case, be discreet in the Court to make the amendment, if they had the power; for *this motion has been submitted to the Court below, where the trial took place, and that Court has refused to make the amendment. In the present case, a judgment has been given upon the verdict, and, consequently, it is completed: if any error has intervened, it is an error of the Court in point of law; and in such case, it is very questionable, indeed, whether this Court can amend the better opinion is, that it cannot. (Ray v. Lister. 1 Andrews, 384, 385.) (a) S. C. 16 Johns. Rep. 146. Motion denied. August, 1818. COOPER V. BISSELL. [ * 319 ]. 251 ALBANY, August, 1818. COLES V. COLES. Where a per MARY COLES, Widow of S. COLES, against S. W. COLES. IN partition, under the act for the partition of lands, passed son, seised of April 12th, 1813, sess. 36. c. 100. (1 N. R. L. 507.) (6) land in fee, The defendant pleaded non tenent insimul, and the cause was and afterwards tried before Mr. J. Van Ness, at the New-York sittings, in marries, his wid- June, 1817. mortgages it, ow, on his death, is entitled to equity of re Where the was husband Stephen Coles, deceased, was, in his lifetime, seised in fee of dower out of the the premises in question, which, on the 20th of April, 1796, he demption. (a) mortgaged to the Marine Society, for the payment of 500 dollars, with interest. S. Coles and the plaintiff intermarried in the 1804. By deed, dated the 15th of January, 1813, S. Coles ty, the widow conveyed the premises to the defendant, (but the plaintiff did cannot proceed not join in the conveyance,) and died in April, 1816. The the partition of mortgage to the Marine Society was still outstanding, but the lands, sess. 36. interest thereon had been regularly paid, first by S. Coles, and c. 100. (1 N. R. afterwards by the defendant. The plaintiff proceeded in this purpose of ob- action for the purpose of obtaining her dower, and at the trial, taining herdow*320] a verdict was taken in *her favor, subject to the opinion of the er; nor can she Court, on a case containing the above facts. under the act for L. 507.) for the be made a party to a partition grantees of her among the heirs, R. Bogardus, for the plaintiff. There can be no doubt that devisees, or a widow has a right of dower, in an equity of redemption in land husband. mortgaged by her husband before their marriage. (Hitchcock v. But it seems Harrington, 6 Johns. Rep. 290. Collins v. Torrey, 7 Johns. husband was Rep. 278.) that where the in common of as her right of seised as joint As to this mode of proceeding under the partition act, to obtenant, or tenant tain her dower, though, under the former act (1 K. & R. 513.) land, the widow, of partition, it might not be allowed, yet in the newly-revised dower extends act, passed April 12, 1813, (1 N. R. L. 507-513.) (c) there only to an undi- are several sections, in which provision is made for proceeding vided part, is a in case either party is a tenant in dower, by the courtesy, or for a parution a life; and in the act passed the 15th of April, 1814, (sess. 37. mong the sever. ch. 198.) (d) provision is made for the right of dower, in case of a sale under the partition act. proper party to a joint owners. T. A. Emmet, contra. This Court have not yet gone the whole length of the doctrine, contrary to the English law, (e) (a) But where the husband takes a conveyance of land, and, at the same time, mortgages it to the grantor to secure the purchase money, the widow cannot claim dower in the premises. Storr v. Tifft, 15 Johns, Rep. 458. And see Coates v. Cheever, 1 Cowen, 460. Jackson v. De Witt, 6 Cowen, 316. (b) 2 R. S. 317. (e) Vide Dixon v. Saville, 1 Bro. C. C. 325-328. But in Banks v. Sutton, 2 P. Wms. 700. Sir Joseph Jekyll, master of the rolls, held, in 1792, that a widow might be endowed of an equity of redemption, though there was a mortgage in fee before marriage. The law in England is, however, taken to be as laid down in Dixon v. Saville. (Cruise's Dig. tit. 12. ch. 2. s. 12. tit. 15. ch. 3. s. 9, 10. Powell on Mortgages, 718-733.) on the mere technical ground that a mortgage in fee is analogous to a trust, of which the wife was no more dowable than she was of a use at common law, before the statute of uses. (At. torney-General v. Scott, Cases Temp. Talbot, 138.) ALBANY, COLES V. that a widow may be endowed of an equity of redemption. It has only been decided, that the tenant claiming under the heir August, 1818. of the mortgagor was estopped to deny his seisin, or avail himself of the mortgage to defeat the widow's dower. SPENCER, J. In Runyan v. Mersereau, (11 Johns. Rep. 534.) we held that a mortgage, at law, as well as in equity, was a mere security for money; that the mortgagee has only a chattel interest, and that the freehold remains in the mortgagor.] (a) But there is another and a fatal objection to this action. Instead of bringing her action for dower, and before any dower has been assigned to her, the plaintiff proceeds under *the act for partition, as if she were a tenant in common. In Bradshaw v. Callaghan, (5 Johns. Rep. 80. S. C. in Error, 8 Johns. Rep. 558.) the Court say that a widow's dower is not within the purview of the partition act; that she is not a joint tenant, or tenant in common, or coparcener. Here is a plea of non tenent insimul; and how can the plaintiff make out a tenancy in common? The plaintiff has no estate, until dower has been assigned to her. She has nothing but a mere right: the heir is seised of the whole estate. PLATT, J., delivered the opinion of the Court. The widow filed her petition under the "act for the partition of lands," to which the defendant pleaded non tenent insimul. Upon the trial of that issue, the widow claimed dower in the lands described in the petition; and there was a verdict for the plaintiff, subject, &c. Upon the evidence stated in the case, two questions were made on the argument: 1st. Whether a widow is entitled to dower when the husband died seised of an equity of redemption only, having mortgaged the land before marriage. 2d. Whether dower can be assigned under the act for the partition of lands. Upon the first point, I think the decisions in the cases of Hitchcock v. Harrington, (6 Johns. Rep. 290.) and Collins v. Torry, (Johns. Rep. 278.) have settled the law in favor of the widow's claim of dower. On the second point, it was decided in the case of Bradshaw v. Callaghan, first in this Court, (5 Johns. Rep. 80.) and afterwards in the Court of Errors, (8 Johns. Rep. 558.) that a tenant in dower is neither a joint tenant, a tenant in common, nor a coparcener," and, therefore, not within the purview of the "act for the partition of lands;" that a partition under that act, among the other tenants, without reference to the right of dower, is valid; and that her rights cannot be affected by the partition; nor is she liable for any part of the costs. Those decisions were made under the act of the 7th of April, 1801, (1 K. & R. 542.) which was re-enacted the 12th *of (a) Vile Wilson v. Troup, 2 Cowen, 195. Lane v. Shears, 1 Wendell, 437. acc. COLES. [* 321 ] [* 322] ALBANY, April, 1813, (1 N. R. L. 507.) (a) with the addition of six new August, 1818. sections, to wit, 14, 15, 16, 17, 18, and 19. COLES V. COLES. [* 323] The 14th and 15th sections of the new act, it is contended on the part of the plaintiff, have enlarged the purview of the former statutes so as to embrace a tenant in dower. (1 N. R. L. 513.) (b) The legislature, in enacting those additional sections, seem to have assumed that, according to the former statute, a tenant in dower might be a party in partition. The new sections do not expressly alter the law in that particular; but assuming that such a right existed, they make provision for the more convenient and effectual exercise of the right. The new provisions in the act of the 12th of April, 1813, do not, however, alter the law as it was expounded in the case of Bradshaw v. Callaghan, ( Johns. Rep. 558.) In that case, the seisin of the husband was of an entire parcel of land in severalty, and the Court decided that partition should be of the whole land among the heirs or devisees, without making the widow a party, but subject to her claim of dower in the whole. But suppose the husband seised as tenant in common, the right of dower is correspondent; it can then be in an undivided share only, and a partition must be made before the dower can be assigned. May not the widow, having no interest but that of dower, be a necessary party in partition when the object is merely to sever the tenancy in common, in order to have her dower afterwards assigned? I incline to think she may, and ought, to be a party to the partition in the latter case; and if so, then the 14th section of the act of the 12th of April, 1813, must be construed as referring to cases where the seisin of the husband was that of a tenant in common. Considering all the statute provisions in pari materia, I am of opinion that where the seisin of the husband, as in the present case, was in severalty, the "act for the partition of lands" affords no remedy for setting off dower. The act of the 15th of April, 1814, (ch. 198. s. 1.) (c) authorizes a sale of the widow's dower in partition, where the subject is indivisible, &c., provided the widow be made a party to the proceedings; but this latter act affords no aid *to the plaintiff in the present case. Where the object is to sell the real estate under the partition act, the widow may be made a party, and then she is concluded; but she is not to be made a party in partition for the purpose of setting off her dower. The verdict for the plaintiff ought, therefore, to be set aside, and the petition for partition to be dismissed, with costs. Judgment accordingly. (d) (b) 2 R. S. 318. (a) 2 R. S. 317. (c) 2 R. S. 325. 6 A plea by an execut stat ing, that he had not, on the day of exhibiting the plaintiff's bill, nor any time since, had any goods or chat iels which were the time of his death, in his of the testator at hands to be ad THIS was an action of assumpsit. The declaration contained counts for the use and occupation of a dweiling-house by the testator; for money had and received, &c. by the testator; and for rent on a parol demise by the plaintiff to the testator. The defendants pleaded, 1. Non assumpsit; 2. Payment; 3. Actio non accrevit infra sex annos; and, 4. the following plea :"And for a further plea in this behalf, the said John Sharp," (the other defendant was returned not taken,)" by like leave of the Court here for this purpose first had and obtained, according to the form of the statute in such case made and pro- ministered, vided, says, that the said Theodosius Fowler ought not to have without alleging or maintain his aforesaid action thereof against him, the said that duly John Sharp, because, he says, he had not, on the day of exhibiting the bill of the said Theodosius Fowler, in this behalf, any time since, had any goods or chattels which were of the the time of his said Robert Sharp, deceased, at the time of his death in the which had come hands of him, the said John Sharp, as executor, as aforesaid, to to the hands of be administered, and this he is ready to verify. Wherefore he [ * 324 ] prays judgment," &c. or administeredthe goods and chat tels which were of the testator at death, and the defendant to be administer tor in his hands The plaintiff demurred specially to this plea, and showed for ed; and without causes of demurrer that the defendant had not in his plea al- alleging that he never had any leged, that he, the defendant, had fully administered all and goods or chatsingular the goods and chattels which were of the said Robert tels of the testaSharp, deceased, at the time of his death, and which had ever to be adminis come to the hands of the defendant, as executor, to be administered, is good, tered; and that the defendant had not alleged that he had never substance. had any goods or chattels which were of the said Robert Sharp, hibition of the deceased, at the time of his death in the hands of the defendant, bill, mentioned as executor, to be administered. The defendant joined in de murrer. The Peter A. Jay, in support of the demurrer, said, that great strictness was required in the plea of plene administravit. defendant does not allege the fact in his plea that he has fully administered, as he ought to have done according to the forms given in the books. (2 Chitty, Pl. 451. 3 Went. Pl. 211. 214. Rast. Ent. 223.) Comyns (Com. Dig. Pleader, 581. (2 D. 9.) says if the plea of plene administravit is, that the defendant nulla habet bona, without more, it is bad, or that plene administravit, omitting et quod nulla bona, &c., as in Hewlet v. Framingham, (3 Lev. 28.) where the defendant pleaded, that “he fully administered all the goods which were of the testator at the time of his death, or at any time since, except goods and (a) Vide Burdick v. Green, 18 Johns. Rep. 14. Soulden v. Van Renssalear, 3 Wendell, 472. Ross v. Luther, 4 Cowen, 158. in form and And the ex in the plea, is tantamount to the commencement of the suit, or suing out the writ, and will be so regarded, unless the plea is specially de murred to on that ground. (a) |