Sutton v. . Burrows , 6 N.C. 79 ( 1811 )

It is the duty of the heir to assign dower (81) to the widow within a reasonable time after the death of her husband. If he fail to do it, she shall, upon petition field for that purpose, have her dower assigned by a jury; and if she claim damages for the detention of her dower, she must inform the court of that fact in her petition (to which the heir must necessarily be a party), and the court will order an issue to be made up and tried between her and the heir, and the damages to be assessed. The rents are necessarily incident to the freehold, and go to the heir until dower be assigned. The rents now claimed belong to the heir, as they accrued before the assignment of dower. But the heir is not liable to the widow for the rents in an action on the case. He is liable upon her petition given by the act of Assembly, in analogy to the proceedings under the writ given by the statute of Merton; and there the widow recovers, not rents (which suppose a privity of estate), but damages for the detention of her dower, in assessing which the value of the rents is the proper guide to the jury. Judgment for the defendant.

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