majority">Judge Simpson

delivered the opinion of the Court — -

Numerous questions are- presented in this case, none of which are of difficult solution.

The possession of the land in controversy, which was commenced by Cogswell in 1810, was cqntinued uninterruptedly during his life, and by his widow and children after his death, until S. B. Petty, in the year 1832 or 1833, set up claim to the land, and took possession of it, under the purchase he had made at sheriff’s sale. This possession, under Cogswell’s claim, was not disturbed by the judgment in ejectment in the Federal Court against Cromwell, the husband of the widow. This judgment was never executed, no actual eviction took place under it, and no change of possession was effected by it. (Smith vs. Hornback, 4 Litt. 232.) The purchase made by *604Cromwell was for the benefit of the widow and heirs of Cogswell, and was not intended to change the character of the possession held by them. And even if Cromwell had intended to purchase and hold under the title of the lessor of the plaintiff in that action, although the judgment of eviction mighthave authorized him to do it, still he could only have hold the land against Cogswell’s heirs, who were not parties to the judgment, by showing that he had acquired the paramount title by his purchase, whereas he does not appear to have obtained any title whatever.

1. A -woman entitled to dower in the- lands of her husband, who has not had dower assigned to her, has no such interest therein, as is liable to sale under execution against a subsequent husband. (5 J. J. Marshall, 15.)2. Under the Code of Practice a defendant may, in his answer, in an action to recover the possession of land, set up and rely upon an equitable defense, such as a claim to the land by purchase by executory contract; in such case either party may have the case transferred to the equity side of the docket; if this be not done, the issue made on such defense is not to be disregarded, but must be disposed of before plaintiff can have judgment; and such, issue may be disposed of according to the principles which may be involved, either of law or equity.

*604Cromwell did not have any title to the land, subject to execution. He did not acquire any title by virtue of his purchase under the judgment in ejectment, having only got a deed from Phillips, who is not shown to have had any authority from the lessor of the plaintiff to convey his title. Plis wife had no interest in it which was liable to execution, and consequently he had none in her right that could be sold under an execution against him. Although his wife was entitled to dower in the land of her deceased husband, yet as dower had never been assigned, she had only the right of quarantine, which cannot be sold under execution. (Shield’s heirs vs. Batts, &c. 5 J. J. Marshall, 15.) Petty, therefore, did not acquire any right to the land by his purchase at the sheriff’s sale.

As, however, he seems to have purchased the land from the widow and the tv o children of Cogswell, he had a right to set up and rely upon that purchase, by way of defense to the plaintiff’s action, whether his purchase was executed or executory merely. Under the Code, the defendant has a right to rely upon equitable as well as legal defenses. Either party may move to transfer an equitable issue, presented by the pleadings, to the equity docket, but if no such motion be made, it does not follow that the issue is to be disregarded. It must be disposed of by the court before a judgment can be rendered for plaintiff. If, then, the contract of purchase was not *605procured by fraudulent representations, it constituted a valid defense to the action, so far as the plaintiffs asserted a right to any of the land which had belonged to Dinah Cogswell, whether it was executed or only executory; and if it had been procured by fraud, still if it were rescinded on that ground, the purchaser would be entitled to the repayment of his purchase money, to the extent at least of the plaintiff’s recovery against him, subject, however, to an off-set, on account of any equitable demands the plaintiffs may have against him arising out of the contract. And if the plaintiffs recover on the ground that the contract was not obligatory on their mother, because she was an infant when she entered into it, the defendant, being a purchaser, has a right to have the purchase money, for her interest in the land, refunded, before he can be deprived of the possession, if, upon a settlement according to equitable principles, there be any part thereof still due to him. This equitable defense presented by the defendants’ answer was disregarded by the Circuit Court, arid the defendant was only permitted to rely upon such matters as constituted a legal defense to the action. In this respect the action of the court was erroneous.

3. Where legal as well as equitable matters of defense arise upon the issues made in a case commenced at law. the legal should be tried by a jury, and the court may submit matters of fact arising upon the equitable issues to a jury, where such issues have not been transferred to the equity docket; in such cases the finding of the jury should be special, to enable the court to decide the case.

Where, as in this case, both legal and equitable defenses are relied upon, the former should be tried by a jury, and the court may also submit to the jury for its decision such matters of fact as are involved in the equitable issue, when such issue has not been transferred to the equity docket, and no' motion for that purpose has been made by either of the parties ; but the finding of the jury in relation to the facts involved in the equitable issue should be special, to enable the court to render such a judgment, thereon as might be equitable and proper between the parties.

Wesley Malier acquired no right to the land in contest by his marriage. He was never actually seized thereof during coverture, and his wife having died, he has no interest in it whatever. The court *606did not therefore err in rejecting the record of his bankruptcy. But when the suit was revived in the name of the heirs of his wife, his name should have been stricken out as one of the plaintiffs, as after the death of his wife his interest in the land ceased and determined. The plaintiffs were proved upon the trial to be the children and heirs-at-law of Polly Malier, deeeased, and it thus appeared that the suit had been properly revived in their names.

4. The husband whose wife is entitled to dower in land of which he has had no seizin during coverture, has no interest after the death of the wife.5. One who enters upon land not as tenant, but assumes a hostile attitude, is not entitled to notice to quit.6. On the death of one owning land, leaving a mother and sisters and brothers and half sisters and brothers, the half sisters and brothers inherit half portions with the mother, and sisters and brothers of the full blood.

As Petty had entered into the possession of the land in contest, under his purchase at the sheriff’s sale, his subsequent purchase from the widow and heirs of Cogswell did not entitle him to notice to quit. He had acquired his possession illegally, and not by virtue of his purchase from them. He denied the validity of their right, although he purchased it; and therefore his hostile attitude deprived him of any right to be regarded as a quasi tenant of the plaintiffs.

If, at the time of the death of Dinah Cogswell, her mother had any children living, the issue of her marriage with Cromwell, they would be entitled to an interest in the real estate which belonged to their half-sister, in conjunction with the mother and the full sister. The two latter would have a right "to full, and the others to half shares. The right of these children was not regarded in the court below in ascertaining the interest of the plaintiffs in the land in controversy, and in this respect also, the action of the court was erroneous.

Wherefore, for the errors indicated in this opinion, the judgment is reversed, and cause remanded for a new trial, and further proceedings consistent with this opinion.

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