majority"> RuKKiN, J.

In the complaint, the land which is the subject of the action is described as that which is “ known as a part of the David Link lands on the waters of South Fork river, and containing by estimation ninety-four acres”; and in the petition for dower filed by the plaintiff in the probate court, (which is made a part of this case,) amongst the lands whereof it is said her husband died seized, mention is made of a tract “ known as the David Link land, containing one hundred acres more or less, on the waters of South Fork river.” Judging from the similarity of the two descriptions, we infer that it is the same land referred to in both, and we were assured by counsel who argued the cause before us for the defendant, that such was his understanding of the matter. If this supposition be correct, and it be true that in the proceeding for dower the land was treated by the parties and recognized by the court as belonging to the estate of the plaintiff’s husband, and the title thereof as being in his heirs, we should be constrained to hold that she is estopped by the judgment then rendered, from now setting up title to herself therein.

The very point was made in Gay v. Stancell, 76 N. C., 369, and it was held that inasmuch as the right to dower depended upon the title, so that in passing upon the one the court must needs consider the other, the judgment was conclusive between the. parties and those claiming under them, *313 and no one would be permitted to again draw in question the title of any portion of the land embraced in the proceeding. We cannot do better than to refer to the opinion of Mr. Justice Bynum, delivered in that case, for a clear statement of the rule itself, and the reasons upon which it proceeds.

Regarding this as a point upon which the case should turn, independently of the doctrine of election which alone seems to have been considered by the court below, we are unwilling to pass upon it so long as there is the least uncertainty as to the facts of the case, and therefore remand the cause to the end that it be ascertained, in addition to the facts already found by His Honor, whether the land now'sued for was really embraced in the plaintiff’s petition for dower, and the title thereto recognized and treated as .being in the heirs of her husband.

Per Curiam. Judgment accordingly.

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