#### Den on demise of Rayner and wife v. Capehart.

From Bertie.

Where lands were allotted a widow as dower, without previous noiiep given to the heir at law, who was an infant; it was held, that however the allotment might be reversed or set aside by the heir or those claiming under him, still it was good title as against a «transfer., when accompanied with seven years possession.

Jijeciment. Thomas Collins was seised of the premises in the declaration at his death, in 1800 — Iiayner’s wife, the lessor of the Plaintiff, was Thomas Collins’ willow. Thomas Collins left a will duly executed to pass lands, to which his widow entered no dissent, other than by her petition for dower, which was filed in August, 18DO, and under which the lands in controversy were allotted her.

The Court below held that the proceedings on the petition for dower did not vest a life-estate in Mayner's wife.

The lessor of the Plaintiff' then offered the record of the said petition and proceedings as colour of title, and the Court permitted it to be read as such, and proof was made, that under it the lessor of the Plaintiff’ had been in quiet possession for fifteen years. The Defendant then proved, that the sole heir of Thomas Collins, was an infant at the time of the assignment of dower, and Continued such during the entire period ->f her posses-*376fjion. Tiie Judge ruled, that the possession under such c°lonr of title would not divest the infant heir at law of title, and that therefore, the lessors of the Plaintiff were no£ ei)titlefl to recover in this action against a stranger j and the Plaintiff submitted to a nonsuit. A newr trial having been refused, and judgment rendered, there was an appeal by Plaintiff.

Hogg, for Defendant,

contended, that the opinion of the Court below, on the points raised, was correct; but at all events, it appeared that the Plaintiff voluntarily submitted to a nonsuit, and he was not entitled to a new trial unless he could shew that he had a right to recover in ejectment. It did not appear from the case, that the Defendant ever entered on the lands, nor did Plaintiff offer to prove that fact.

Taylor, Chief-Justice.

The true enquiry in this case Was, not whether the assignment of dower divested the heir at law of title, but whether such assignment accompanied with seven years possession, gave the Plaintiff a right of recovery against a stranger. The Defendant was a trespasser, and cannot avail himself of any irregularity in the proceedings, by wdiich the dower was assigned. They were had under the authority of a Court possessing competent jurisdiction, and must be regarded as conclusive, at least in this case, until they are avoided by due course of law. They constitute a presumption of right, which entitles the Plaintiff to recover in the absence of any right or title in the Defendant. The petition filed by the widow, "states the infancy of the heir, and prays that a guardian may be appointed to defend, which should have been done by the Court, to enable the petitioner to give notice. Nothing, therefore, can be inferred from the proceedings, to show an intentional omission on the part of the widow'. There must be a Tew trial.

*377Hall, Judge.

It appears that the widow regularly dissented from the will of her husband, by filing her pc-Éition in time — that her dower was regularly laid off to her by metes and bounds, and that, she held possession of it accordingly, under a judgment of the Court, for a longer time than seven years. And I think she ought to recover, as against a stranger, upon that possession under that judgment. The judgment is not a nullity, although the heir at law, at the time it was rendered, was under lawful age, and had no notice of it. However it may be reversed or set aside by him, or those claiming under him, it is obligatory upon strangers. I therefore think the nonsuit should be set aside, and a new trial granted.

Hf.NDErsoN, Judge, concurred.