32 Ky. 86 | Ky. Ct. App. | 1834
delivered the Opinion of the Court
This is the same case twice formerly before this court, as it will be found reported, 5 Monroe, 212, and 5 J. J. Marshall, 211.
On the return of the cause to the circuit court, the defendants again obtained a verdict and judgment.
In addition to the testimony given on the former trial, as detailed in 5 J. J. Marshall, the defendants gave in evidence the deed from James S. Lemaster to Phillips, and further connected themselves with the Sturgus claim, by a bond from Phillips to one Bulger, of March, 1789, for the land in contest, and an assignment of that bond, by Bulger, to the Tiifords: which' supplied the defects in the proof pointed out in the opinion delivered and reported, 5 J. J. Marshall. They also gave in evidence a deed for the land, from Neal and wife, to Micajah and Elisha Cole, two of the lessors of the plaintiff, dated in June, 1817. it was admitted, “that Mrs. Neal, the patentee, was a native, and is yet a citizen of
On the case thus made out, the plaintiffs moved the court to instruct the jury, that they were not barred by the statutes of limitation. The court refused to give this instruction, and instructed the jury, that, if they believed the evidence, the plaintiffs were barred by the limitation act of 1809.
These instructions were refused, and given, on the ground that the deed to the Coles passed the estate to them during the life of Neal the husband ; and that they had no right to avail themselves of the 'disability of Mrs. Neal. As the suit was commenced in 1822, the seven years had not run since the conveyance to the Coles; but it had run against Neal, the husband, prior even to the date of that deed, provided both he and his wife were barred, or provided the statute would bar him alone, without also barring his wife.
It cannot properly he contended that Mrs. Neal was barred ; for though the patent issued to her during her coverture, and the land therefore cannot be said to have descended or been devised to her during coverture, and her right is not, therefore, such a one as would be saved to her for three years after her discoverture, by the second section of the act of 1814, yet according to the construction we give that section, it does not apply at all to the seven years limitation of 1809 ; so that it is immaterial, at present, to determine whether it does or does not take away all saving in favor of jemes coverts under the general limitation law of 1796, except where the,land shall have descended or been devised to them during their coverture.
Whether the husband may be so barred, that the land cannot be recovered in his life time, and can only be recovered after his death, when the right returns to. the wife, is a question which was waived when the case was formerly here. The court spoke of it as “ a question of
The saving in the act of 1809, is not materially different in its phraseology from that used in the statute of James, or in our statutes of 1796 and 1814. It is in these words : the limitation prescribed in this act, shall not extend to femes coverts &c.; “ but such persons shall be at liberty to institute such suits at any time, within seven years, after their disabilities are removed.”
There is nothing in this language, which does, of itself, constitute a saving in favor of the husband, so as to prevent his being barred. If there be such saving, it must result from the general principles of law, in order the better to secure and preserve the right of the wife. We are not aware of any principle that will so operate.
A descent cast does not bar the right of entry of a feme covert, where the disseizin takes place during coverture, or during her infancy, if she marries before her full age. Yet, it is well settled, that it does bar the right of entry of the husband, and takes away their joint right of action; but after his death, the wife, or her heirs, may enter notwithstanding his laches. Co. Lit. 248, a. This saving of the right of entry of a feme covert, against the effect of a descent cast, is so identical as to the quality of the right, and is based so exclusively upon the same principle as the saving in her favor in the statutes of limitation, that the harmony of the law, as a uniform system or science, seems necessarily to require, that her rights, and those of her husband, should bo placed upon the piccise same footing in both cases.— Every reason we can surmise, which would bar .the husband’s right of entry, whilst it remained still unexr
Entertaining the opinion, that the right of Neal, the husband, would have been barred, provided it had still remained to him, it is unnecessary to notice the distinction upon which the circuit court appears to have acted, growing out of the alienation made by him to the Coles.
The judgment must be affirmed, with costs.