THIS was an action of dower, by the widow of David Deshler, against the tenant of the premises, tried at Easton. Northampton county, the 27th of June 1804.
In point of fact, it appeared, that Lesher died, leaving a will, dated the 2d of November 1796, in which he bequeathed to his wife a legacy of 1000 l., his household goods, and a house for life; and appointed her executrix, and Neuhart and Schrudder executors. Before his death, he had sold and conveyed the premises to George Eddy, taking bonds and a mortgage for the purchase money; but Eddy's conveyance was not recorded. The executors instituted a suit, obtained judgment, and issued execution against Eddy; in consequence of which, the same property was levied upon, and advertised for sale. At the instance of the widow (the present plaintiff) Neuhart, one of the executors, became the purchaser, for the use of the estate; and the sheriff executed a deed to him, on the 9th of June 1801. And, with the knowledge, consent, and approbation, of the widow, he re-sold and conveyed the property, to Beery (the present defendant) on the 30th of July 1801. During these transactions, the widow never suggested a claim of dower; but there were several judgments against Deshler's estate, at the time of the sheriff's sale; and his debts, generally, far exceeded the assets for paying them.
YEATES, Justice.
Mrs. Deshler is entitled to recover her dower in the premises, unless the peculiar circumstances of the case operate as a bar. The circumstances relied upon to produce that effect, are these: she made Neuhart her agent to buy the land at the sheriff's sale; and she approved of the purchase, after it was made. She, also, knew and approved of the re-sale to the defendant, at a full price, and uncharged with dower; and, until the defendant had paid the price, she never set up the present claim. The motives of Mrs. Deshler, in observing this silence, cannot be positively ascertained; but she might think, that, if the land sold high, in consequence of appearing clear of every incumbrance, there would be the better prospect, that her legacy of 1000 l. would be paid.
Upon the whole, the jury will decide, whether Mrs. Deshler's line of conduct held up to the public, and, particularly, to the parties, that she meant to waive the claim of dower. If it did, the verdict should be against her. If it did not, and the jury think, that she always meant to assert her right of dower; then the verdict must be in her favour.
Verdict for the defendant.