1 Mich. 1 | Mich. | 1847
By the Court,
The first question presented by the special verdict is, whether' tlie" plaintiff was, on the decease of her husband, entitled to dower in a lot of land of which her husband was seized during the coverture, but off which ho was not seized at the time of Ms death.
It is admitted by the parties that this question is to be determined-by the Ordinance of 1787, which contains the only express provision in relation to dower that has any bearing on this point.
The second section of the first article of the ordinance provides, “That the estates both of resident and non resident proprietors in the said territory dying intestate, shall descend [here follows the course of descents], saving in all cases to the widow of the intestate, her third part of the real estate for life, and one tMrd part of the personal estate ; and this law relative to descents and dower shall remain in full force until altered by the legislature of the district.”
It is'insisted by defendants’ counsel, that as the provision for dower is connected with the provision directing one third of the personal estate to bo assigned to the widow, it is- manifest the framers of the ordinance intended that they should both be placed upon the same footing. And as' both were innovations upon the common law, the provision to bo made for the widow, out of the personal estate, was intended as a compensation to the widow for her loss of dower in lands of wMch the husband had been seized during the coverture, but which he had alienated ; thus limiting her claim to dower, to lands of which-the husband died seized-
It is matter of history, that fora long period previous to 1783, Great Britain held dominion over the district of country embracing much of what has been known and designated as the north-western territory. Previous to that period, and as-far back as 1763, (when it was ceded by France to Great Britain as a conquered province) this portion of territory continued in the exclusive possession and occupancy of Great Britain, formed a part of her colonial possessions, was a part of the province of Upper Canada, and continued to -be governed by her laws.
That the common law of England was in foree 'in Upper Canada with such modifications as may'havc been made by the local legislature of the province, can hardly be doubted. It was the basis of their rights, and formed the rule of decision in civil and criminal cases?. This being a matter of history, will be noticed by courts.
It was never questioned, so far as I can learn, in either of these states, that the widow was by the ordinance entitled to dower in lands as at common law, until the case of Betts v. Wise, reported in 11th Ohio Rep. 219, in 1842, which arose under this clause of the ordinance, and in which it was insisted, for the defendant, that the widow’s dower was limited to one third part of the real estate of which her husband died seized. Chief Justice Lane delivered the opinion of the court, an4 after stating the common law, remarks: <( Such is the common law of dower, an institution existing wherever the common law obtains — a rule which each people has the right to change, but a conception which none could shake off without substituting some other provision in its stead. It was to a people under the dominion of this idea that the ordinance was addressed, and far from assuming’ to prescribe a different rule or confer a new right, it does no more than re- • cognize an existing institution, and takes care that it receives no prejudice hy the operation of the law of descents. We can regard it as no less than an authoritative acknowledgment of the estate in dower at the common law, to which law we must refer to learn the signification of the term, and the extent of the dowress’ interest.” The judge adds: “ Since the organization of the territory, a wife was dowable of all lands within, it of which her husband was seized at any time diu'ing the coverture,” This opinion of Judge Lane appeal's to be quite conclusive upon this subject.
In afiditiori to this judicial construction of the ordinance, we find
So highly (says Judge Kent) was the law of dower esteemed, and so anxious were our forefathers to secure its undisputed establishment, that in its modern sense and enlarged extent, as applying to all lands of which the husband was seized during the coverture, it was incorporated amongst the provisions of Magna Chacta, and it has continued in the English law to the present time; and with some modifications it 'has been everywhere adopted as part of the municipal jurisprudence of the United States. 4 Kent’s Com. 36.
To the consummation of the title to dower three things are requisite, viz.; marriage, seizin of the husband, and his death. 4 Kent’s Com. 36. The concurrence of the two former circumstances is properly the groundwork of the title, of which the death of the husband is the consummation, 4 Kent’s Com. 36; Park on Dower 7. From the period when the husband dies, the incipient title which existed in the wife during the coverture becomes consummated and perfected, and her right of action to obtain the fruits of that title commences. Park on Dower, 247.
At common law it was competent for the heir to assign the widow’s •dower on the death of the husband, but if it was not assigned she had certain remedies. She had no right of entry until the dower was assigned to her, and she could not maintain a possessoiy action. The legal remedy to enforce an assignment of dower was by writ of dower, unde nihil hctbei, or writ of right of dower, brought against the tenant ¡p.f the freehold, upon which, if she obtained judgment, dower was a?.
No demand of dower was necessary; the right of action was perfect without it; and the widow, by foiling to make demand, lost her portion of the profits of the estate previous to the demand. Park on Dower, 288; 7 Cowen 288; 6 John. Rep. 295. Thus stood the rights ,and remedies of the widow, in reference to dower, at the common law.
By an act of the governor and judges of the territory of Michigan, passed February 26, 1821, (Laws 1833, p. 38'7, § 40) all the common law remedies for the recovery of dower were abolished. It is insisted by defendants that this statute gives the writ of right instead thereof.
■ By an act of the legislative council, (Laws 1833, p>. 332, §1) it was provided, “ that if the heir or other person having the next immediate estate of inheritance, should not within one mouth set out to the widow of the deceased her dower, &e., then such widow might sue for and recover the same by writ of dower brought against the tenant.” The remedy provided by this act is substantially the same as the common daw remedy by writ of dower, which was in the nature of a real action. The form given in the statutes seems designed to embrace a declaration in substance, as at common law. The difference is, the declaration or complaint is contained in the writ, and the common law proceeding is in other respects somewhat simplified. This act, and the ■act of February, 1821, continued hi force until repealed by the Revised Statutes of 1838.
Defendants’ counsel insist that this action is haired by the statute of ■■■limitations of November 5, 1829, (Laws 1833, p. 408) the first section of which provides, “ that no writ of right or other real action, no action ■of ejectment or other possessory action, of whatsoever name or nature, shall hereafter be sued, prosecuted or maintained for the recovery of any lands, tenements or hereditaments, if the cause of action has now .accrued, unless the same be brought within ten years after the passing of this act, any law, usage, or custom to the contrary notwithstanding.”
This statute seems to be broad enough to cover all possible remedies -for the recovery of an interest in lands, and yet it does not in terms ..enumerate the action of dower provided by the acts to which I have .referred. It becomes necessary, therefore, to determine whether the -nature, of the widow’s right, and the remedy provided for the recovery
From an examination of the English and American statutes of limitations, and the decisions upon them, it will be found that the rights of widows to dower have been highly favored. It has been fully es-tablished in England by a uniform course of decisions,- and in most of the United States, that the wife’s remedy by action for her dower is not within the ordinary statutes of limitations. Wells v. Beall, 2 Gill & John. 468; 3 Kent’s Com. 3d edit. 70, in note; Swift’s Digt. edit. 1822, p. 85; Barnard v. Edwards, 4 N. H. Rep. 109; Spencer v. Weston, 1 Dev. & Bat. 213; Guthrie v. Owen, 10 Yerg. Rep. 339; and yet if we examine some of the American statutes, it will be foirnd they are as broad and comprehensive as the statutes under consideration. It will also be seen that the reasons why the action- for dower is held not to be Within the statutes,- are, that the action for the recovery of dower is not exjn'essly named — that no implication can be raised against such action on account of the favor with which courts have regarded the widow’s rights, and because the peculiar nature of the right,' and the general object of such statutes, is such as to exempt this action from then- influence.
The English statute of 32 Hen. 8, c. 2, applies only to cases where the demandant counts only upon his own seizin or that of his ancestor. In Angelí on Limitations, p. 33, it is stated that this statute extends not only to writs of right, but also to all other writs in the nature of a writ of right, in which the demandant must allege a seizin,, and in which he seeks to recover a hereditament. But it does not extend to cases where the demandant does not count upon the seizin of himself or his ancestor, as in the writ of right of doweiv In Bro.reading on this statute, it is said a woman brought' a writ of dower of-the seizin of her husband sixty years past. The action lyeth because that is not of her ancestor or predecessor, neither is it an action possessorie, and it is not prohibited by the statute. Appendix to Angelí on Limit. 55. In Park on Dower, pp. 311, 342, it is stated that no-statute of limitations has prescribed any period for bringing a writ of dower.
Chancellor Kent (4 Kent’s Com. 61) lays down the general doctrine that the widow cannot enter for her dower until it is assigned fey
But it.is insisted that our statute is more extensive than the English statute of Hen. 8, and 21 Jas. 1, c.-16, upon which the English déci-* sions are made — that it is not limited to a right of entry or possession, but extends to the right of action. The following statutes are similar to our own, and are quite as broad and comprehensive. The statute of North Carolina provides- “ That no person nor then- heirs, which shall hereafter have any right or title to lands, &c., shall enter or make claim but within seven years next after his or their right or title which descends or accrues, and in default thereof shall be utterly excluded from entry or claim thereafter.” In that state iit has been decided that a widow’s right of dower is not subject to the statute of limitations until after it is assigned.
The Georgia statute of limitations enacts, “ That all wilts of forme-* don, &c. (enumerating those of 21 Jas. 1) or any other wilt, suit or . action whatsoever, at any time hereafter to be sued or brought by-means of any title or cause hereafter accrued, &e., shall be sued and taken within seven years next after the piassing- of this act, or after the title or cause of action shall or may descend or accrue to the same, and that no person or persons that how hath or have, or which hereafter may have, any right or title of entry into any lands, &e;, shall at any time hereafter make any entry but in seven years.” This statute is Surely as comprehensive as ours, and does not contemplate solely the case of a seizin which once existed, and from which the statute is to run. The supreme court of Georgia, in the ease of Wakeman v. Roache, 1 Dudley’s Rep. 123, which was an action for the recovery of dower, in which the statute was plead,- say: “ These words (referring to the first part of the section above quoted) would seem sufficiently comprehensive to embrace every remedy, and unless the case of dower’
The Revised Statutes of Massachusetts, c. 119, §1, provide “That no person shall commence an action for the recovery of any lands, nor shall make any entry thereupon, unless within twenty years after the right to malee such entry or bring such action first accrued, or within twenty years after he, or those from, by, or under whom he claims, shall have been seized or possessed of the premises, except as horein¡rfter provided.” In the ease of Parker v. Obear, (7 Metcalf 24) a writ of dower was brought. The tenant derived his title to the premises from the husband of the demandant, through Joseph Parker, decomed, and he relied upon the above recited statute of limitations as a bar to the action. The court say, “the language of the statute is very broad. That a writ of dower is a writ for the recovery of lands, and taking the language of the statute without any qualification, it would seem to be a bar.” And after referring to and commenting upon some of the authorities above cited, the court say, “ We are clear that the statute of limitations was made with another purpose, and however broad the general words may be, they are not applicable to claims for dower.”
In Hew York,, in the case of Hogle v. Stewart (8 John. Rep. 104),. which was an action- for dower, the facts were shortly these. The v.iit was returnable Hov. Term, 1808. The demandant was married to John Hogle before the revolutionary war. He was seized of the demanded premises when, he died in 1777, and Elizabeth his wife continued a widow. Hogle was duly attainted for adhering to- the enemies of the state, in the late war. The commissioners of forfeiture sold the premises in which dower was demanded to one Henry, who conveyed to the tenant who held them ever after. One of the provisions of the act of attainder was, “ that no person, &c., who now have, or shall or may hereafter have, any estate, right, title, claim or demand, to any lands, (fee, supposed to have been forfeited, &c., and which have been heretofore granted or conveyed to any person, &c., shall after the expiration of five years from and after the passing of this act, &c., prosecute, sue, or maintain any action or suit at law, for the recovery thereof, against the right and title so granted by the people of this state, as •‘/.hove -rid.” The court say, “ Ho action shall be prosecuted or main
I do not find any decisions in any of the states which give a different construction to their statutes of hmitations, except a case in South Carolina, in 1 Const. Rep. 112. I have not seen the volume containing the case, but the court in the case of Parker v. Obear, in speaking of it say, The court held that “ the statute of limitations of that state was a bar to the claim for dower, unless prosecuted within five years.” But the decision was principally grounded on the express words of the statute, and the court were not unanimous in their opinion, and the English decisions there referred to relate to a case of alienation by fine, with proclamations. Stat 4 Hen. 7, c. 24.
The stat. of South Carolina provides: “ If any person to whom any right or title to lands, tenements or hereditaments shall descend or «some, do not prosecute the same within five years after such right or title accrued, then he, she, or they shall be forever barred to recover the same.” Brevoid Justice says, It is true dower is favored in law, and .the act of limitations, being in restraint of the common law, is to bo ■construed strictly, but it is equally true that the act of limitations, in this state, plainly and certainly limits the right of action to recover the possession of lands to five years after the right of the party accrued, descended or came.
It is well settled as a principle of law, that there must 'be an adversé possession before the statute of limitations can commence to run. 8 East 248; 2 Bos. & Pul. 542; 1 Dall. Rep. 67; 1 Caines’ Rep. 394; 1 John. Rep. 156; 2 id. 230; 1 Wash. Rep. 37; 4 Crunch 367.
In Blanchard on Limitations, pp. 9, 13, it is stated that “these statutes of limitations never run against a ■ man whilst he continues in the' ..seizin, therefore, to malee the length of possession a bar under them,
Then is the title and possession of the defendant in this case adverse to that of the demandant 2 If not, it_, is not perceived how the plaintiff’s action can be defeated. Park, in his treatise on dower, p. 153 {335) says, “ Although a title of dower is for most purposes nothing more than a right of action, and consequently transferable in no other mode than by release to the terretenant by way of'extinguishment, yet it differs from all .other mere rights of action in not being the result of any adverse jus possessions acquired by the heir or feoffee, and as a .consequence tire possession of the heir or feoffee can never become a bar to the title of the wife.”
It would seem, then, from an examination of the statutes, and authorities on this subject in England and many of the United States, that the tight of dower is unlike any other right to land known to the law, ■ and that its peculiar nature is such as to exempt it from the operation of all general statutes of limitations, boweyer broad and comprehensive, in which this action is not named or by unavoidable implication included. Those statutes apply as a bar to those persons whose tight of entry is lost by their own laches, or by the laches of those under whom they claim, but the widow has no right of entry.' Independent of the favor with which courts are bound to regard the tight of dower, it is such that tire possession of the heir or purchaser cannot be adverse to the claim of the -widow. The estate of the widow arises by operation of law, and is not created by grant. And as the lands, when held by the husband, are subject to the .inchoate or incipient rights of the wife, if the husband deed them the purchaser takes them in the same way, subject to the same legal incidents, of which they cannot be divested except by the act or death of the wife. The purchaser enters into possession, not under a full and perfect title, but under a title subject to the dower of the wife, with which his title well .¡consists, and to which it is in no wise opposed.
It was urged in the case of Hogle v. Stewart, that as a purchaser
There are strong reasons why the widow should not be compelled, at the peril of a -loss of her rights, to enforce them within the period limited by the statute in question; as, where the husband conveys without her joining, and receives the full value of the land, 'the wife, being otherwise provided for, would not disturb the grantee, unless misfortune befel her. But if. limited to ten years, widows would uniformly enforce their rights within that period, in anticipation of a day of need.
I can see no reason why comts should not now, as formerly, look upon the claim of dower with great favor, and maintain the truth of what Lord Coke says was commonly said, that three things be favored in law, — life, liberty and dower.
Certified accordingly.