The opinion of the Court, Shepley, C. J., Wells, Rice, Hathaway and Appleton, J. J., was drawn up by
Shepley, C. J.The title of the demandant rests upon a judgment rendered in an action of dower between these parties. Whether perfectly formal or not, that judgment will be operative until reversed.
An actual possession of her dower at any time is not required to enable the demandant to maintain her action. Proof of title and of a right of entry are made sufficient proof of seizin by the provisions of statute chap. 145, sect. 6.
The contract made between the demandant and William Bruce cannot, under the circumstances proved, operate as a bar to the action. It does not appear to have been the intention of the parties to it to have a conveyance of the dower made. If such had been their intention, it could not have been carried into effect by their contract without a seal.
Nor does their contract appear to have been intended to operate as a lease of the premises. Neither party expected that Bruce was to occupy them either personally or by the *138tenant as his assignee; or that the relation of landlord .and tenant should exist between them. No claim respecting repairs, taxes, or good husbandry, could be made by either of these persons upon another. No notice to quit was therefore required.
The sum agreed was to be paid “ in lieu of dower,” and it was to be accepted “ in full of her claim for dower.” The instrument amounts to an agreement on her part to forbear during life further to enforce her right to dower, upon condition, that Bruce would pay to her annually twenty-five dollars. The failure to perform that condition left her at liberty to avoid it.
The tenant did not become responsible, that Bruce should make the annual payments, and the demandant might not be able to recover them of him in any form of action. It is not perceived, that there has been any privity of contract or of estate between them. The demandant cannot insist, that the tenant was an unlawful occupant, while he occupied by virtue of her contract with Bruce, that he should not be disturbed. That agreement must be considered as subsisting, .until the demandant, in some form, made known her election to avoid it on account of the neglect of the other party to perform. No other evidence of such election is presented than the commencement of the suit. ' The demandant will not be entitled to recover for mesne profits before that time.
If her title to the estate had been dependent upon her election to take advantage of a neglect to perform the condition, the action could not have been maintained without proof of an entry for breach of condition before its commencement; but her right of occupation only was dependent upon it.
Defendant defaulted.