Bradshaw v. Callaghan

Decided November 15, 1809

New York Supreme Court · decided 1809-11-15

<p>A. died seised of ifindsj and the lieil's proceeded to obtain a partinon of the lands tinder the act; and the widow of JL- not apme'nt passed^default / ami 'in partition^aíeawasaSgnetílmd out^Ftheiands of her husband; and she was adjudged to pay SO dollars and 96 cents for her proportion of the expenses in making the par- ... tition; and the heirs afterwards issued a fieri facias-, and sold the dower of the widow at auction, to pay the costs so adjudged ; it was held, that the proceedings under the act for the partition were null and void, as against the widow’s claim for dower; that she was not a tenant, nor did her rights come within the purview of1 the act; that she was not bound to appear and plead, nor eould her rights be affected by the judgment in partition ; and that the conduct of the heirs in selling her dower to pay the costs was improper and unwarrantable*</p>

Cited by 1 later decisions — most recently May 1956

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1809-11-15

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Per Curiarn.

¶1The proceedings under the partition act were null and void, as respects the claim of the demand-ant for dower. She was not bound to appear and plead; and her not appearing cannot prejudice her present claim. The judgment in partition could only affect her rights, if any she had, as a joint-tenant^ tenant in common, or in coparcenary. Her right of dower did not make her such a tenant; nor did it come within the purview of the act. The subsequent conduct of the heirs, in selling the part assigned as her dower, for the costs of partition, has very much the appearance of an attempt to defraud her of her rights. There must be a judgment for the demandant, for the dower and damages recovered by the verdict.

¶2Judgment for the demandant.