63 Neb. 70 | Neb. | 1901
This action was brought by the appellant to recover dower in certain lands in-Washington county. A trial to the court resulted in a finding and decree for the defendant, and the plaintiff brings the case here on appeal.
The determination of one question will dispose of this case, and that question is whether plaintiff’s cause of action was barred by the statute of limitations when this case was commenced. If it was, the decree of the district court should be affirmed; if not, it should be reversed. This question involves two others, namely, whether an action in the district court for the recovery of dower is within the statute, and, if so, whether the statute had run in this case. We shall consider these two questions in their order.
1. Plaintiff cites many cases in support of the proposition that an action for the recovery of dower is not within the statute of limitations. But none of those cases, so far as we have been able to examine, are based on statutes worded like ours, and for that reason lose much of their force. While many of the earlier cases hold that actions for the recovery of dower are not within the statute, the trend of modern authority is in the other direction. Proctor v. Bigelow, 38 Mich., 282; King v. Merritt, 67 Mich., 194; Beebe v. Lyle, 73 Mich., 114; Tuttle v. Willson, 10 Ohio, 26; Care v. Keller, 77 Pa. St., 487; Rice v. Nelson, 27 Ia., 148. A study of our own statute makes it difficult
2. It sufficiently appears from the evidence that the plaintiff was married to Robert T. Beall in 1862, and that he died in 1875; that from 1863, to. the time of his death, he and the plaintiff resided together in this state as husband and wife; that at the time of the death of her husband he and one E. A. Allen were seized in fee of the land in controversy, each owning an undivided one-half. Some two years after the death of the said husband the whole of the land was sold for taxes to J. EL Hungate, who afterward, on December 22, 1881, conveyed the premises to the defendant. In June, 1882, the defendant procured a con
But plaintiff insists that the defendant must be presumed to have entered upon and, held the land under his valid title to an undivided one-hal-f of the land, and, therefore, his entry and possession was the entry and possession of all the cotenants, and not adverse to the plaintiff. As a general rule, the entry and possession of one tenant in common is the entry and possession of all, and therefore not adverse. But the rule has no application where there has been an actual ouster of the cotenant, or some act equivalent thereto. 1 Am. & Eng. Ency. Law [2d ed.], 801, and cases there cited. Ouster is a question of fact, which involves, to some' extent, the intentions and motives of the party in possession. Highstone v. Burdette, 54 Mich., 329; Cummings v. Wyman, 10 Mass., 464. The evidence shows that, some fourteen years before the commencement of this action, the defendant took possession of the land; that within six months he conveyed it to another, who at once entered upon and took possession and continued in possession for about five years, when it was reconveyed to the defendant, who again took possession and held the same until the trial of this case. During all these fourteen years the
It is recommended that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.