Johns v. Fenton

88 Mo. 64 | Mo. | 1885

Sherwood, J.

Suit for the admeasurement of dower. Under the ruling of this court in Littleton v. Patterson, 32 Mo. 357, the statute of limitations was held not to run against a widow entitled to be endowed of lands until that her dower be assigned. Speaking on this subject, Dryden, J., in delivering the opinion of the court in that case, said: “The right limited is a present, existing right of action or of entry, and none the less so, because the one in whom the right is vested is under some disability to sue. But the wife’s right to dower is not of this sort * * she is not laboring under the disability contemplated by the saving clause of the statute to enforce an existing right of action, as would be the case if during coverture she was disseized of an estate that had descended to her, but she is without such right as is actionable. By the death of her husband, her right of action becomes complete. This right, however, is merely a chose in action, and not a right of entry or a right of action for possession which depends for its existence on the assignment of dower; and having no right of action or of entry until dower is assigned, her rights are not within the bar of the statute.” And it is said elsewhere, that “Except where specially so provided, a widow’s right of dower is not barred by the statutes of limitations of the several states.” Wood on Limit, of Act., 584.

This cause was not tried. below on the theory here laid down; but upon the theory that the staleness of the demand barred any recovery of dower. This in substance is recited in the j udgment which went in favor of the defendant, and a declaration of law given on his behalf, states that: “On account of the lapse of thirty-eight years since the death of plaintiff’s former husband, Patrick, the plaintiff cannot recover in this action against defendant on account of the staleness of her demand.” This declaration and judgment are evidently at variance with the rule announced by this court, and the authority above cited, and, therefore, must be held erroneous. Under that rule it is obvious that if the ■statute of limitations does not apply to actions for the recovery of dower that cases like Valle v. Obenhause, 62 Mo. 81, cannot be invoked by defendant as a defence in this action, i. e., until after assignment of dower occurs. And it must be equally obvious that staleness of demand, laches, etc., must be also out of place; for equity, if called on to administer a right strictly legal will generally follow the law of the statute. Adams Eq. 227; Kelly v. Hurt, 74 Mo. 561, and cases cited., But this is merely an action at law ; the remedy at law being adequate and ample, there is no ground for equitable interposition and indeed there is no opportunity therefor, as under the authorities cited no right of action exists in a dowress until dower be assigned; and this being the case, staleness of demand could not arise till after the demand itself arose, by reason of the assignment of dower.

In conclusion, it -may be proper to say that there •are many circumstances in this transcript, both resting in parol, and of record, which might well be considered by the court or jury trying this cause on its return, as tending very strongly to show that dower was admeasured and assigned the widow Patrick; and if this was the case, then, of course, the statute would begin to run from the period of its assignment, and the widow was barred before this suit was begun. If assigned before the disability of her second marriage, then by the period of ten years. If after incurring that disability, then by the period of twenty-four years. Valle v. Obenhause, supra; Poe v. Domic, 54 Mo. 119. And on the re-trial •of this cause, the facts that the land on which dower is now asked to be assigned has been in continuous possession and cultivation lor so long a period, with the dowress residing, it seems, only some thirty miles away, are sufficient to afford some ground for presumptions favorable to the view that dower by matter of record or matter in pais had been assigned to the widow and had been by her transferred, or else, considering it small value at that early period, abandoned to adverse possession. And ‘ ‘ dower may be assigned by parol. The widow being entitled by common right, nothing is required but to ascertain her share; and when that is accomplished by the assignment, and she has entered the freehold vests in her without livery of seizin or writing.” 2 Scribner on Rower, 66, sec. 3, and cases cited. As to presumptions of the abandonment of rights where failure is made for a long period to assert them, see Tuttle v. Willson, 10 Ohio, 26; and as to the other presumptions referred to, see Long v. Joplin M. & S. Co., 68 Mo., 422, and cases cited.

For the reasons aforesaid, the judgment is reversed and the cause remanded.

All concur.