18 Tenn. 339 | Tenn. | 1837
delivered the opinion of the court.
The principál question in this case is, whether a widow to whom dower in the lands of her husband has not been assigned by the heir, or by those claiming under him, shall be barred by the possession of the heir, or of those who come in under him, if for seven years after the death of the husband, she omit to sue for her dower. It is insisted that she is so barred by the operation of the 2d section of the act of 1819, c 28. A widow in England is not barred of her dower by the statute 32 Henry VIII. c 2, because those who are barred by that statute, must count either on their own seizin, .or that of an ancestor, and the widow, before assignment, has no seizin in the lands of which she is dowable, nor does she count on the seizin of any ancestor. She is not barred by the act passed by the limitation of actions, (21 James I, 1 Ch. 16:) for that act barred the right of entry to those who for twenty years after the accrual of such right, omit to enter or bring their sui.s. But the widow, before assignment o! her dower, lias no right of entry upon the premises of which she is dowable, and therefore her right of entry not existing, and that statute operating only upon such right, her title is unaffected by it.
But it is said that the statute of fines and proclamations, 1 Rich. III. c 7, or rather the statute which re-enacts that, 4 Henry VII, c24, will bar the title to dower. This position, though in early times contradicted by Plowden, and as to its principle, questioned and criticised in modern times-by. Preston,. is yet well established. If a fine, with proclamations, be levied, the seizin and title of the person in whose favor it is levied, become, or are taken as. paramount to the title of the heirs and of the widow, and are. inconsistent with her claim, and if she omit, for the five years given by the saving of the statute, to make her claim, it becomes barred by such fine
There are questions in the case arising upon the deed of trust, which perhaps would, independently of the above considerations, bring the cause to the same result. But as the more general and morn important question which we have discussed, will, in the view we take of it, settle the rights of the parties in this controversy, we deem it unnecessary to present those peculiar features of the case, which, if we had thought differently upon the main question, would have deserved notice. Let the decree be affirmed.
Decree affirmed.