There certainly was no error in the ruling of the court below refusing to nonsuit because there was no sufficient proof of ouster or of a denial of the plaintiff’s rights in the premises. The defendant claimed to have a deed of the pi’operty; she assumed the right to lease it, and to collect and retain the rents to her own use. These acts surely amounted to a complete denial of the plaintiff’s rights in the property, or, at least, were acts from which a jury might infer an intent on the defendant’s part to exclude the plaintiff from all enjoyment of the premises. The record in this case is quite confusing, and there are many typographical errors in the printed case, which are misleading. If we fall into any mistake as to what was done on the trial, the blame should be that of counsel for presenting a case in this manner, rather than rest with us.
As we understand the case, the plaintiff was compelled on *412the trial-to elect, and did elect, to procaed for the interest stated in the first cause of .action in the complaint. That was for an undivided third part of the premises described. The answer of the defendant was to both causes of action. To establish her right to recover, the plaintiff sought to avail, herself of the admissions' in the answer that there had been an ad-measurement of the dower by commissioners appointed by the county court sitting in probate, and that the premises had been set off to the plaintiff as and for dower. As a matter of course, this was a different interest from that originally claimed in the complaint. ■ While the motion for a nonsuit was pending, the defendant asked and ha<l leave to so amend her answer as to make it read, “Ry such admeasurement of dower and homestead right, there was set off to the plaintiff, as her full dower and homestead right in said premises, all the premises described as follows,” etc. When the report of the commissioners was offered in evidence by the defendant, the plaintiff objected to the same because it was incompetent and inadmissible under the pleadings, there being an express admission in the answer that the premises had been regularly set apart to the plaintiff as dower, and that this admission could not be countervailed by proof. But finally the plaintiff amended her complaint, and had .a verdict for the premises as specifically described in the defendant’s original answer.
Now it is insisted that the defendant was bound by the admissions in her original answer to the effect that the plaintiff was entitled • to the entire premises as dower which had been assigned to her by the commissioners appointed for that purpose. But the court did allow the answer to be amended in respect to the premises which were assigned as dower. It seems to us a very plain proposition that it waá entirely competent for the court to allow that amendment. There is no more reason for holding that the defendant was immutably bound by the admissions in her answer as to what was assigned as dower, than there is for saying that the plaintiff could only recover that precise interest in the premises which she sued *413for. Bat in fact she was permitted to amend her complaint so as to recover an entirely different interest. Why should the amendment to the pleading be allowed in the one case and refused in the other? It is said the defendant claimed the bald, naked right to amend her answer on the trial, after the close of the plaintiff’s case, by denying a material fact which had stood admitted in the answer for nearly five years. But did not the plaintiff claim and exercise the same right at the close of the case? Where is the consistency in saying that the amendment to the answer came too late, and still insisting that the plaintiff’s amendment of her complaint was right and proper under the circumstances? Astute counsel may see reasons for a distinction in the cases, but to our minds they seem to stand on the same grounds. We therefore hold that the court properly allowed the answer to be amended in respect to the dower interest.
The next inquiry is as to what effect should be given the report of the commissioners which was offered in evidence, and the order of the probate court approving the same. Does that report assign all the premises therein described as dower proper, or does it merely assign dower in a part and a homestead right in the residue? We haverno doubt hut the latter is the correct construction to be given the report. At the time these proceedings were taken, the plaintiff, as widow, was entitled to ' the homestead of which her husband died seized. She made application to the probate court that her dower be assigned to her. The guardian of the minor children filed a written consent that commissioners be appointed to set off'her dower, and also to “'set off the homestead and house to said widow.” Doubtless the commissioners acted on this consent of the guardian, and intended to make their report conform to it. They proceeded and set aside by metes and bounds certain tracts of land as her dower. They also set asidé another tract which was particularly described as a homestead. What was intended to be assigned as dower proper, and what as a home*414stead right, might have been more fully set forth;, but there is no difficulty in getting at the real meaning of the report. The tract which is described as being the homestead, “ making about' a quarter of an acre,” was to remain a homestead,— "shouldbe treated as such,— which was to be enjoyed by the plaintiff so long as she remained a widow. And it would be doing violence to the language of the report, when read in the light of surrounding circumstances, as well as a perversion of the facts of the case, to hold that the homestead was set off to the plaintiff as dower, or that the dower assigned includes such homestead.. Upon this point we fully agree with the defendant’s counsel that nothing of the kind was attempted by the commissioners, and that the true construction of their report is that certain tracts are set aside as dower proper, and then the homestead proper is described for the purpose of fixing its limits. This is our understanding of the report of the commissioners. This view works a reversal of the judgment; for it appears that the plaintiff has married again. Of course she has lost her homestead rights. She is now only entitled to her dower in what was the homestead property. The judgment gives her possession of that entire property for her’ natural life, as being a part of her just and reasonable dower in the lands of which her first husband died seized. The learned circuit court ruled that, as it appeared from the evidence that the plaintiff had a life estate in this homestead property, as well as in the other premises described in the last amended complaint, she was entitled to recover that interest in this action. That ruling was doubtless founded upon the report of the commissioners to which we have referred. But as we deem that construction erroneous, there must be a new trial.
By the Gov/rb.— The judgment of the circuit court is re-, versed, and a new trial ordered.
Taylok, J., took no part.