The foundation of the right to dower in this State has been stated differently. In some cases it is claimed independently of the common law, and exclusively under the act of assembly; in others, as in this case, it is regarded as yet a common law right. The latter is the correct view. The act of 1816 gives no right of dower, but only denied certain restrictions which, by the practice in this State, were being imposed on the common law right, in the shape of incumbrances, alienations and debts of the husband. The act of 1816, defines the right of dower precisely as it is defined in Hawkins,. quoted there from Littleton’s tenures, except that it substitutes the expression “ estate of inheritance” for Littleton’s paraphrase of “ estate in fee simple, fee trial, tail general or fee tail special.” The object of the act of 1816, was to restore the common law right; and dower cannot be said to arise from or depend on that act in any other sense, than that the mode ,of remedy, and assignment is therein pointed out.
The question then is—1. Is the right to dower barred by the act .of limitation of 1793. We think not. The first clause of that act ..cannot apply to the case of dower, for it extends only to cases of rights of entry, which the widow’s right is not; nor can the second ..clause apply to the case of dower, for it prohibits actions real for lands, &c,, of the seizin of the claimant or his ancestor or predecessor. In the case of a claim of dower, it cannot rest ón the claimant’s *159own seizin, nor on that of her “ ancestor or predecessorterms which imply a prior seizin of the same estate which she claims.— The dowress does not claim under or after her husband, as an heir under an ancestor or predecessor; she claims by a title paramount, or existing co-temporaneous with her husband, though not consummate until his death. The proviso which follows, of ten years’ saving to femes covert &c., at the time her title first accrued, can have no application to the case of a claim of dower. We are of opinion then, that under the existing laws, there is no act of limitation in this State, to the claim of dower. We are confirmed in this view, from the fact that such have been the uniform decisions in England, under the statute 32 Henry VIII, ch. 2, of which our act is almost a transcript. [4 Bac. Ab. Lim. B.]
2. Is the defendant, by the fact that he represents or claims under a party who took a conveyance from Matthew Bordly, estopped to deny .the seizin of Matthew Bordly. Several of the New York cases, [Hitchcock vs. Harrington, and other cases,] do establish that the alienee or grantee of a husband could not set up his want of title against the widow’s claim of dower; and this court in Griffith vs. Griffith, in a degree sanctioned the principle of these cases, though that case itself was decided on another ground. But in a subsequent case of Darby vs. Causey, the court doubted these cases, and qualified the remarks made on this question, in Griffith vs. Griffith.
The point, however, is unnecessary to the decision of this case, as the privity of Joshua Clayton in estate with Matthew Bordly, has not been proved so as to make the estoppel operate on him; nor has any evidence been offered of M. Bordly’s seizin, except what is derived from the record of partition between Paca and Bordly, which is evidence as against Clayton, only on the assumption of privity of estate.
The defect in the plaintiff’s case is a want of any evidence that Richard S. Thomas, under whom defendant claims, ever held or claimed, or took title under. Matthew Bordly. Wanting this evidence, the partition title of Matthew Bordly is not admissible in this case, and no concessions or admissions in any deed from Matthew Bordly, John Bordley, or Thomas B. Randel, can estop Joshua Clayton to deny Matthew Bordly’s title, which is not shown otherwise than by the record of partition and the deeds themselves.
The plaintiff must, therefore, be nonsuited.