Starry v. Starry, 21 Iowa 254

Starry v. Starry

21 Iowa 254 | Iowa | 1866

Dillon, J.

J. Statute tjons?ita' dower. I. At the time of the death of the husband, in 1852, the law (Code of 1851, § 1394) entitled the plaintiff “ to one-third in value ” of his real estate, to be set apart as “her property in fee simple.” c0111.£ gaye an(J ft> this she Was entitled, unless her claim is barred by section 2428 of the Eevision quoted in' the statement (Code of 1851, § 1397), or by the general statute of limitations.. As more than ten years had elapsed, this section would bar her from proceeding in the County Court to have her dower admeasured to her by or under the direction of that tribunal. But courts of equity exercise a general concurrent jurisdiction with courts of law.in the assignment of dower. (Story Eq. Jur., § 624; Phares v. Walters, 6 Iowa, 106; *256McCrany v. McCrany, 5 Iowa, 232; Gano v. Gilruth, 4 G. Gr., 453.

Tbe jurisdiction of a court of equity is not taken away by tbe special proceedings provided for in the County Court. And the limitation provided by section 2428 only applies to proceedings in County Courts. See Rev., § 3605; Waples v. Marsh et. al., 19 Iowa, 381; Sterritt v. Robinson, 17 Iowa, 61.)

2. genebae STATUTE * dower. ' II. Again it is claimed that this is a real action which is barred by the general statute of limitations. */ o Bev., § 2740, subd. 4. In support of this point Phares v. Walters, 6 Iowa, 106, is cited. But that case has no application. In the present case, the plaintiff is and has been in the peaceable possession of the property since the death of her husband. If the appellants had been in adverse possession of the property more than ten years, denying the right of the plaintiff to dower, then the statute, as was héld in the case last cited, would apply.

3. pbactice: objections. III. The point is made in argument that the plaintiff cannot recover in this action, because she has noj. that the defendant denied her right before suit brought. Bev., § 3605.

To this it is sufficient to state that the record does not show that any such point was made in the District Court. On the contrary, it is fairly inferable from the nature of the exception to the decree, that no such position was there taken. This objection is not presented in any of the pleadings. It cannot successfully be made for the first time in this court. It is unnecessary to consider its effect if it had been made in the court below.

Affirmed.