#### Hodges v. McCabe.

"} i From Tyrrel. J

A levy on bind was made before the death of the owner; dower was afterwards allotted to the widow, in the land, and afterwards the Sheriff conveyed to the purchaser at his sale; held, that the widow could not have dower, because the sale related back to the levy, or teste of the writ.

Ejectment. — James McCabe was in his life-time seised in fee-simple of the premises described in Plaintiff’s declaration, and being so seised, judgment was obtained against him at January Session, 1820, of Tyrrel County Court; on this judgment execution issued, bearing teste of that term, and was levied by the Sheriff upon the premises *79on the 20th of "January in the same year: In February following, James McCabe died intestate, and on the 29th of March the land was sold by the Sheriff to James Hos-kins at public sale, to satisfy the execution, and in September, 1823, the Sheriff executed a deed of conveyance to Hoskins therefor: afterwards, and before the action brought, Hoskins conveyed to one Tarkinton, and Tar-kinton to the lessor of the Plaintiff. The Defendant is the widow of James McCabe, and she, after the death of her husband, and before September, 1823, exhibited her petition for dower, in the County Court of Tyrre-1, and part of the land above mentioned wras duly and properly allotted her for her dower, and of that part, ami no other, she is in possession. These facts- were found subject to the opinion of Courts if it should be that the land was subject to the Defendant’s dower, then the verdict to i)c set aside and a nonsuit entered,• otherwise, judgment to be rendered for the Plaintiff.

Badger,

Judge, who presided, was of opinion for the Defendant on the matter reserved, and directed the verdict to be set aside and a nonsuit entered $ whereupon, Plaintiff appealed to this Court.

Hall, Judge.

I think, in this case, the widow is not entitled to dower: the levy on the land was made before the death of the husband, and when the sale was made by the Sheriff, it related back to the levy on teste of the writ.

The reasons given by Judge Haywood, in Hay. 243, Sarah Winstead v. the heirs &c. of Richard Winstead, are, in my opinion, in point, and unanswerable, and to them I beg leave to refer.

And of this opinion, was Judge Henderson.

Tayxor, Chief-Justice,

dissentiente. — It is wdth reluctance that I give an opinion in this case, without having *80heard the question argued, which might have removed the doubts I entertain, and enabled'me to give a decided judgment. At present, I can only say, I am not prepare¿ COncur in the opinion of the Court, and will briefly state the difficulties which present themselves to me. I incline to think, that the husband died seised of this land; and, that, upon his death, the title to dower accrued to the widow, which could not be divested by the subsequent sale. That a levy is a lien on the property, for certain purposes, cannot be denied, and that it would protect it against the alienation of the husband, and give priority to the creditor, amidst conflicting claims, must also be admitted; but I know of no authority for the position, that it evicts the owner, or takes away seisin, which can only be by a deed executed by himself, or by the Sheriff, under the authority of the law.

But if, before that is done, the right of the wife to dower, becomes consummate, by the death of the husband, a subsequent sale cannot dives) her right.

More effect carfnot be ascribed to a levy upon land, than to a levy upon chattels, and there we are told, from the best authority, that neither before the statute of Charles, nor since, is the property of the goods altered, but continues in the Defendant, till the execution executed. — (2 Eq. Ca. Mr. 381 — 4 Term. Rep. 536.) So that where two writs of fi. fa. were delivered to the Sheriff, on the same day, by different parties, and he executed the second first, it was holden that the second execution was good, and bound the goods, but that the Sheriff had, thereby, made himself liable to the first party.

As a creditor, claiming under a posterior execution, may, by vigilance, obtain satisfaction, notwithstanding the prior lien, why may not a widow be entitled to her •dower, claiming as she does, under a right created by law, and one which the law contemplates as being free from the demands of creditors ? But may it not be safely affirmed, that less effect belongs to a levy upon lands, *81than upon chattels ? Can it be, that a Sheriff going upon land, and endorsing a few words upon an execution, takes away the seisin of the Defendant ? He cannot turn the Defendant out of possession and put the purchaser in, even after a sale; but the latter must resort to an ejectment.

The levy gives the Sheriff no right to possession ; it will not even amount ito colour of title, accompanied with possession ; and a Court of great respectability has decided, that “ a sei&ure of lands, by the Sheriff, does not divest the estate of the debtor.” — (8 Johns. 520.)

Although a sale, upon execution, relates back to the test of the writ, as between the parties, yet it is a rule, with respect to the doctrine of relation, that it shall do no wrong to strangers.

It is a fiction of law, adopted for the furtherance of justice, and would, in this case, overreach all mesne liens, created by the debtor himself, and, to á certan extent, all others by subsequent executions. , But the dower of the wife is a right attached to her condition, which becomes consummate by the death of the husband; it is a right derhed from the lawT, independent of any act, or assent, of her husband, and ought not.to be overthrown by a fiction.

Fictions have been resorted to, to sustain the w'idow’s right to dower, which was favoured by the common law, but never to subvert it.' — (3 Coke, 25' — Butler and Barker’s case.) in Manville’s case, it is said, that by relation, a thing may be considered as annulled, ab initio, between the same parties, to advance a right; but the law will never make such a construction to advance a wrong, or to defeat collateral acts which are lawful, and principally, if they concern strangers. — (13 Coke, 21.)

It is also ruled in Lifford’s case, (11 Coke, 51,) that where a person is disseised, the disseisee, after re-entry, can maintain trespass against the desseisor; for the,law, as to the disseisor and his servants, will suppose the *82freehold to have continued in the disseisee $ but not sd with respect to strangers, who came in by right or title, under the disseisor; they cannot be made trespassers by relation. So it has been held, in this Court, that a Sheriff’s deed for land, sold under an execution, does not relate back, even to the sale, so as to make a man a trespasser, who entered between the sale and the conveyance.—(2 L. Rep. 89.)

These are some of my doubts, which I have thus thrown out, that if the question should again occur, and ■we should have the advantage of an argument, they may be considered, if deemed worthy of it.