Branch v. Cole

| Fla. | Jun 15, 1881

Mr. Justice Westcott

delivered the opinion of the court.

This is a bill in equity to assign dower and for damages for mesne profits.

Pleas were interposed under the second and fourth sections óf the act prescribing limitations to- civil suits in this State, (Chap. 1869, Laws,) as well as under the 12th section of the same. act. These pleas, properly framed to raise the question desired, were set down for hearing; the first plea under the second. and fourth sections of the act was overruled, and the second plea under the twelfth section was sustained.

Section 2 of the act provides that no action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question within seven years before the commencement of such action. The 4th section provides that presumption of possession shall follow the legal title, to be overcome only by proof of adverse possession.

In the case of Wade vs. Doyle, 17 Fla., 522" court="Fla." date_filed="1880-01-15" href="https://app.midpage.ai/document/wade-v-doyle-4913531?utm_source=webapp" opinion_id="4913531">17 Fla., 522, we had occasion to interpret sections two and four of this act. We there held that a plea simply denying the seizin or possession was not sufficient, but it must be averred that the possession was adverse. . . .

We think it clear that the second section of the statute does not embrace this case, because that section must by its terms be confined to eases where the plaintiff’s right in the “ action for the recovery of real property is sought to be maintained upon the seizin or possession of the plaintiff, his ancestor, predecessor or grantor.” A dowress seeking an assignment of dower, and the possession of the land assigned, does not claim by virtue of the seizin or possession of herself, or of any of her ancestors, predecessors or. grantors. She claims by virtue of the seizin and possession'of her husband. 1 Selden, 394; 4 Kent, 69. We presume this will not be questioned, as the definition of dower by all text writers, and its character as fixed by our statute, refers it to the seizin and possession of the husband. We next enquire, is the husband the ancestor, predecessor or grantor of the wife. He is certainly neither her ancestor nor grantor. Is he her predecessor ?

We find very little in the books by which upon authority we can define this term predecessor as here used.

In Brooks Reading upon the statute, (32 Hen. VIII., Ch. 2, from note to §367, Angelí on Limitations,) it is said: “A woman brought a writ of dower of the seizin of her husband sixty-one years past, the action lyetbi because that is not of her own seizin, nor of none of her ancestors nor predecessors, neither is it an action possessory, and is not prohibited by the statute.”

It must, however, be plain that the date of the seizin or possession of the husband cannot in the very nature of things be the commencement of the limitation. The husband may sell land twenty years before his death, and at no time up to his death can a right of action accrue, to his wife, and yet with this construction, without any fault on her part, she would be divested of her right. The statute was intended to bar only those who being entitled to bring actions neglected to bring them.

In speaking of a statute much more comprehensive than the second section of the act of February 27, 1872, of this State, the Supreme Court of Massachusetts, in Parker vs. Obear, 7 Met., 27, say: “That it applies to those cases and those only where a right of entry existed in the party claiming, the estate, Or. in the ancestor or predecessor of the person who claims the land,” and a party claiming dower, it is to he inferred from the opinion, is not embraced in these terms. . ., _

.. For the reasons stated we do not think; that this suit in equity is embraced in the second and fourth sections of the ' act of limitations.

[Is it embraced in section 12 ? That section provides that an action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.

The plea here is an adverse possession for twelve years before this action was commenced, and that twelve years have elapsed between the accrual of the right of action and 'the bringing of this action. Upon this adverse possession, after the death of the husband, a cause of action accrued to the party entitled to dower, and if this suit in equity is an action for relief within the meaning of this section, then it is barred by it. This statute was passed during the time in which the code was in force in this State, "and the legislative intent and the scope and effect of this section must be controlled by this fact. In section 252 of the code such a proceeding “ brought to recover dower, before admeasurement, of real property aliened by the husband ” is called an action. The proceeding is not a special proceeding for the assignment of dower under the provisions of the act of November 7, 1828. Thomp. Dig., 186. Ve very much question the legality of placing a .person claiming dower in possession of lands held adversely as set ; forth in this plea under that proceeding. But however that may be, this is a suit in chancery claiming dower in lands and mesne profits, and under the code the appropriate method to assert such a right was a civil action through a complaint. The decree is affirmed.