Hurleman v. Hazlett, 55 Iowa 256

Hurleman v. Hazlett

55 Iowa 256 | Iowa | 1880

Day, J.

i. dower : limitations, The evidence shows that on the 21st day of March, 1856, Margaret Hazlett, by warranty deed, conveyed the property in controversy to "William Tallett, under whom, through several mesne conveyances, the plaintiff derived title on the 23d day of October, 1867. Margaret Hazlett is still living. At the time of the conveyance above named, the defendant John Hazlett was, and still is, her husband. The defendant did not join in the conveyance to William Tallett, and has not in any manner released his dower right in said property. The plaintiff took possession of the property in the fall of 1867, built a dwelling thereon in the spring of 1868, and has ever since been in the continuous possession thereof. The question involved in this case is, can the husband’s right to dower, to which he has made no relinquishment, be barred by the statute of limitations during the lifetime of the wife? We hold, unhesitatingly, that it cannot be so barred. During the lifetime of the wife no action for the assignment or recovery of dower can be maintained. During that time it remains doubtful whether the inchoate right will become absolute and vested by the survivorship of the husband after the death of the wife. It would, indeed, be anomalous if a right should be barred by the statute of limitations before any action could be brought to establish and enforce it. The case of Buzick v. Buzick, 44 Iowa, 259, is cited. That case simply holds *258that the wife’s dower, though inchoate and uncertain during the life of the husband, possesses the element of property to such a degree that she may maintain an action to protect it from fraudulent alienation by the husband. In that case the wife was not allowed to recover her dower or have it assigned, but it was simply ordered that the grantee of the property should hold it subject to the wife’s dower right if she should survive her husband.

Upon the case made the court should have dismissed the plaintiff’s petition.

Reversed.