10 Ohio St. 498 | Ohio | 1841
It appears that a period of more than thirty years has elapsed from the death of George Besley, sen., the time when the right to demand dower first accrued, and the commencement of this suit. But as the petitioner resided out of the state until the year 1835, it is attempted to avoid the effect of the exception in the statute of limitations, by a reliance on the laches and gross negligence indicated by not having instituted these proceedings at an earlier period; and undoubtedly the mere lapse of time, which has been truly said to obscure all human testimony, may sometimes be a bar to the assertion of a stale demand. In such cases courts of equity act sometimes by analogy to the statute of limitations, and sometimes unon their own inherent doctrine of discour
The case of Piatt v. Vattier, 9 Pet. 404, has been relied upon as' a very decisive authority to show that lapse of time is a sufficient answer to the assertion of a stale demand, even where there is a statute of limitations in existence, which contains a saving in favor of persons who are out of the state. If this is so, it is the only case where a doctrine which has been sometimes obscurely suggested, has been distinctly proclaimed and enforced. But an examination of that case will show that the inference attempted to be drawn from it is not correct. The answers did not rely upon
The claim of the petitioner is next resisted on the ground that the defendant is a bona fide purchaser without notice. It would be a sufficient answer to this, that the defendant does not, either by plea or answer, avail himself of this defense. But as the case has been argued upon this ground by the counsel on both sides, and as it is one of very great importance, it shall be considered. The petitioner has a legal title, and it is difficult to see how the allegation of a bona fide purchase, without notice, can be an adequate defense to.such a title; that it is a defense to an equitable title merely, is well' settled; but that it shall be any answer to a plaintiff who combines both the legal and equitable title in her own right, would seem to be incomprehensible if there were nota very great weight of authority on that side of the question. The application of the rule is not peculiar to cases of dower, but has been 505] extended *to other cases also. In Burlac v. Cook, 2 Freem. 84, the plea was held to be good against a legal estate. So in
Where the heir sells land to which a right of dower has attached, and which is admitted to be a legal right, it presents a case where A. undertakes to convey not his own land, but the land of B. Under such circumstances, a plea of bona fide purchaser is entirely beside.the case. That defense properly applies where A. undertakes to sell his own land to two or more persons, and where he who has the legal title and the *highest [508 equity is necessarily protected. If the rule promulgated in Burlac v. Cook, and some of the other cases, were to have a general application, it would contribute to shake the titles to real estate more than any other which has been established. In the absence of a registry law, individuals might deal as freely with the property of others as they could with their own. Take, for in
It is fortunate that the difficulty which exists in England does not exist here. Our titles are all of record; this single circumstance removes a great deal of the embarrassment which surrounds the English cases. And this leads me to remark that the defense in this case does not carry with it the same force which it has in England. For what is the meaning of the plea? — it is that the defendant, having bona fide and honestly paid his money, no person has a right to require him to discover any facts which shall reveal ah infirmity in his title. But here no such discovery is necessary. The English authorities apply peculiarly to a case which can seldom arise in Ohio. There it becomes frequently necessary to institute not a petition, but a regular bill in chancery, making a great number of persons parties, the nature of whose title has always been a secret. The registry of deeds is there the 507] ^exception and not the rule. The consequence is, that a discovery from the defendants themselves is indispensably necessary, in order to remove out of the way the obstruction which hinders the claim of the complainant. Under such circumstances the English courts have sometimes said that, if the defendant will plead that he is a bona fide purchaser without notice, he shall not be compelled to make a discovery, the effect of which will be to invalidate the deeds in his possession. Such a case will rarely arise in this state; the public registry of deeds makes evident the true nature of the title of both parties, without the necessity of
The remaining question relates to the mode in which dower should be assigned. There is a difference where the land is conveyed by the husband in his lifetime, and where it is conveyed by the heir. In the former case the widow is entitled to her dower according to the value at the time of alienation, for the heir is not bound to warrant, except according to the value as it was at the time of the sale. But here the alienation was by the heir; and it appeal’s that fifty acres have been cleared on the lot at a cost of §12 an acre, and buildings have been erected worth §300 or §400, and these improvements, with a very small exception, not worth noticing, have been made by the heir. They were then made at his own risk; he is presumed to have placed them there with a full knowledge of his obligations, and of the rights of the complainant; and she is entitled to be endowed according to the value of the land (exclusive of the emblements) at the time of the assignment.