#### MARY CARNEY v. JAMES WHITEHURST.

■One who claims the land under a conveyance made by the deceased, has a right to intervene in proceedings for dower in such land, instituted by the widow against the heirs of the deceased. (Act of 1868-’69, c. 93, s. 41.)

MotioN, by a purchaser of the land, to be allowed to intervene in proceedings for dower, heard by Jones, J., at ^Spring Term 1870, of Pitt Court.

The plaintiff had made the heirs parties, alleging that the deceased had died seized, and in possession. They answered setting up a sale of the lands by the deceased to one Gray, as trustee to pay debts, and that alter his death,- the trustee .had resold them to James Whitehurst. Whitehurst also .moved to be made a party defendant to. the proceedings.

His Honor refused the application, and Whitehurst appealed.

Hilliard, for the appellant.

Howard, anil Phillips & Merrimon, contra.

Rodman, J.

The only question in this case is, whether the application of Whitehurst to come in and be made a party defendant, should have been allowed. He claimed to own the land in which dower was sought, by a purchase from the deceased during his life time. Questions oí practice merely, in the absence of a positive rule established either by statute or rule or decision of the Court, must be decided on considerations of general convenience. In this case, how•ever, there existed a positive law which settles the question without argument. Section 41 of ch. 93, acts 1888-69, p. 215, enacts that, in proceedings to recover dower, “ the .heirs, devisees, and other persons in possession of, or claim *427 ing estates in the land, shall bo parties.” This act was ratified oil March 27th, 1869, and was therefore in force at the time of the application bjr Whitehurst, at Spring Term 1869 although, as the act had not been then published, it is not surprising that it had not come to the knowledge, either of the Court or of the counsel in the cause. This practice is in harmony with that established in civil actions by O. C. P. § 61.

There ivas error in the j udgment below, and this case will be remanded to the Superior Court of Pitt, in order that Janies Whitehurst may be allowed to make himself a party, and to make defence according to the course of the Court. The appellant will recover costs in this Court.

Per Curiam. Error.