39 Wis. 188 | Wis. | 1875
I. It seems to be conceded (and the fact doubtless is), that, from the death of Joliann Gottlieb Ahnert, in 1857, the possession by the defendant and his grantor of the land in controversy has been adverse to the claim of the plaintiff. The question discussed by the learned counsel is, whether the same was a possession under color of title, in favor of which the statute of limitations might run in ten years, or whether it comes under the limitation of twenty years applicable to cases in which the claim of title is not founded upon a written instrument purporting to he a conveyance of the land thus possessed. R. S., ch. 138, secs. 6-10 (Tay. Stats., 1622-3).
It was strongly argued on'behalf of the plaintiff, that the deed from the elder Ahnert to the grantor of the defendant does not purport to convey the whole of the tract of land, an undivided share of which is claimed by the plaintiff, but only the interest therein which, the former took as- tenant by the curtesy and as heir of his deceased son Henry. If this be a correct position, it necessarily follows therefrom that the de
The deed under consideration is, in form, a conveyance of the whole tract therein described. It may well be doubted whether the words relating to the grantor, to wit: “Father of Henry Ahnert, deceased, and husband of Rosina Ahnert, deceased, and sole heir of both,” are anything more than a mere desoTvptio personm. If thej* amount to more than that, when the grantor described himself as sole heir of his wife, who died seized of the land, he thereby indicated an intention to convey the whole interest in such land, and, as we have seen, he used apt words to carry out his intention. We conclude that the deed of 1851 purports, on its -face, to convey the whole tract.
From the foregoing views, two results follow. These are, 1.The possession of. the defendant and his grantor was under color of title, and adverse to the plaintiff; and 2. By virtue of the covenants in the deed from the elder Ahnert, the interest in the land which he inherited as heir of his son August (who died in 1855), enured to the benefit of the defendant’s grantor, by way of estoppel.
II. Ernst Ahnert was of full age when the adverse possession of the elder Zaun commenced in 1857, and his right of action to recover his portion of the land became barred by the statute of limitations in 1867. Hence, when he died in 1873, no such right of action descended to his heirs.
III. Franz Ahnert dying in 1860 under the age of twenty-one years, and never having been-married, the undivided one-sixth of the whole tract, which he inherited from his mother, descended to his surviving brothers and sisters (Karl, Ernst and the plaintiff), in equal shares. R. S., ch. 92, sec. 1, subd. 7 (Tay. Stats., 1170, § 1, subd. 6).
In Perkins v. Simonds, 28 Wis., 90, we held, after much investigation, that in such a case the surviving brothers and
Perkins v. Simonds was ruled by the revised statutes of 1839, p. 185, § 39, which is substantially the same as the corresponding provision in the revision of 1858 last above cited. The statute of 1839 was borrowed from Massachusetts, and had received judicial construction in that state before its adoption here. We felt bound by, and therefore followed, the adjudications in that state construing the statute, as will be seen by an examination of the opinion. We must adhere to the rule thus established. We therefore hold that the portion of the lands of which Mrs. Ahnert died seized, which descended to Franz, and by his death to the plaintiff (being one-eighteenth of the whole), is held by the plaintiff in the same manner as she holds the one-sixth thereof which came to her directly from her mother, and is subject to the same rules of law. If she can recover either of these undivided interests or portions in this action, she can recover both; failing to recover one of them, she cannot recover either.
It should be stated in this connection that Mr. Justice Cole reserves his opinion on this point, but concurs in the other points herein decided.
IY. This brings us to the controlling question in the case: whether the plaintiff’s cause of action is barred by the statute of limitations. Had she been unmarried in 1857, when the adverse possession of the defendant’s grantor commenced, it is indisputable that her right would have been thus barred. But she was at that time, and ever since has been, a married woman. It is claimed for her that the statute has never com
On tbe other band, several other courts of equal resjjecta-bility have held precisely tbe opj>osite doctrine. Burke v. Beveridge, 15 Minn., 205; Bauman v. Grubbs, 26 Ind., 419; Dunham v. Sage, 52 N. Y., 229.
Tbe question has not been jjassed upon by tbis court, although it was raised and argued in Ladd v. Hildebrant, 27 Wis., 135. Tbe conflicting decisions in other states have resulted in no decided weight of authority either way. We must therefore determine for ourselves tbe proper construction of tbe statute, in tbe light of tbe accepted rules of law applicable to tbe case.
1. It seems to us that the definition given by the learned counsel for the defendant, and ■ apparently sanctioned by Bur-rill, is too narrow. The grounds of the disability of a wife are thus stated by Chancellor Kent: “ The disability of the wife to contract so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connection, by which she is placed under the power and protection of her husband, and because she has not the administration of property,” etc. 2 Com. (11th ed.), 137. The law giving her the control of her separate estate removes only one of the grounds of disability. She is still under the control and protection of her husband. Tie can lawfully control her domicil and her employment. In these particulars she is now, as she was at the common law, under a degree of duress. Although she may have an action in her own name relating to her separate estate, and may administer the same as if unmarried, yet such quasi duress, which is a recognized element of legal disability, still remains.
2. But the section itself furnishes proof that the legislature did not use the term in the restricted sense claimed for it. One of the conditions mentioned in the section as preventing the running of the statute of limitations is that of persons “ imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life.” "We suppose that persons in this condition may bring actions in their own names, notwithstanding their imprisonment. "We find no statute to the contrary. "We have a statute which provides for the service of process upon convicts in the state prison. R. S., ch. 188, sec. 23 (Tay. Stats., 1976, § 23). If they can be sued, manifestly their civil rights are not sus
In New York there is a statute which suspends all of the civil rights of a person under sentence of imprisonment in the state prison for a term less than for life, during the term of his imprisonment. 3 R. S. (1859), Title 7, Part 4, ch. 1, § 29; O’Brien v. Hagan, 1 Duer, 664; Miller v. Finkle, 1 Parker’s Cr. R., 374. In the revision of 1830, in which this provision stands as § 19, we find the following note by the revisors relating to that section: “New; taken substantially from Mr. Livingston’s code, p. 29; declaratory of what is probably the law, although we have had no express decisions on the subject.” 3 R. S. (1830), p. 835. It seems very clear that our statute, which provides for the service of process on convicts in the state prison, was enacted on the theory that, in the absence of any statute to the contrary, the civil rights of such convicts are not suspended during their imprisonment.
But however this may be, the exemption in see. 13 of persons imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, extends to persons so imprisoned as well before as after trial, and to persons so in execution who have only been sentenced to imprisonment in a county jail. As a matter of course, the civil rights of such persons cannot be affected or impaired by the criminal charge or conviction. They may still control their property, make valid contracts, and sue and be sued in their own names. Otherwise the civil rights of a person imprisoned on a charge of assault and battery, or any other misdemeanor, whether before trial or after conviction and sentence, would be suspended. This would be simply monstrous. Yet the statute treats a
3. The history of legislation in this state on the subject-matter of the statute under consideration, shows that the legislature never supposed that the exemption of married women from the operation of the statute of limitations had been taken away, until it was done directly in actions for the recovery of real estate, by the enactment of ch. 44, Laws of 1872.
Perhaps but little importance should be given to the fact that sec. 13 (which is found in substance in the revised statutes of 1839 and also of 1849) was reenacted in the revision of 1858, without material alteration, although the acts which it is claimed exclude married women from the benefit of that section, were then in force and were reenacted in the same revision. This fact is not, however, without significance. It is worthy of consideration when we are required, as we are in the present ease, to determine whether a statute has been repealed by implication.
But there is another fact much more significant. When the act of 1872 was passed, amending section 13 by striking therefrom the 4th subdivision, so that its provisions should no longer apply to the condition of coverture, the legislature left untouched sec. 29 of the same chapter, which relates to nearly all personal actions, and which, in its effect upon such actions and in form, is very similar to sec. 13. If the legislature of 1872 supposed that the amendment to section 13 had already been made by implication, it could only have enacted ch. 44 for the purpose of clearing that section of useless rubbish; and in such case it would certainly have made the same amendment to section 29, and for the same reason. The failure to do so is strong if not conclusive evidence that the legislature
4. The tendency and obvious purpose of all laws affecting married women which have been enacted in this state during the last twenty-five years, have been, almost without exception, to extend the privileges and immunities of that class of persons without imposing upon them corresponding liabilities and burdens. Keeping this fact in view, and remembering the principle, that repeal by implication is not favored, we are impelled to the conclusion that the legislature, when it removed some of the disabilities of coverture, did not intend thereby to deprive the wife of any privilege or right extended to her by other statutes.
5. It must be conceded that very many of the old rules of law regulating the marital relation have been abrogated or materially changed by modern legislation. Those rules were the results of the wisdom and experience of centuries, and were believed by our fathers to harmonize with the Divine law which founded and sanctified that relation. Whether those rules have been departed from wisely or unwisely, is not for -us to determine. But we are profoundly conscious that such legislation is fraught with danger, and that any errors therein must necessarily lead to disastrous results, the magnitude of which cannot well be overestimated. We have neither the power nor the inclination to advance in that direction only as we are compelled to do so by the clearly expressed will of the legislature. We must not accelerate the process of innovation and change by forced construction of statutes on the subject. Hence, until the legislature expressly so enact, we cannot hold that a wife is no longer under legal disability.
We conclude that the judgment of the circuit court, by which the plaintiff recovered the undivided one-sixth of the tract of land described in the complaint, which she inherited directly from her mother, and the undivided one-eighteenth
By the 0 overt.— Judgment affirmed.
On a motion for a rehearing as to so much of the foregoing decision as relates to the one-eighteenth claimed by the plaintiff as derived through her brother Franz, Mr. Winkler argued that the decision rested on Perkins v. Simonds, 28 Wis., 90, and that in turn upon certain Massachusetts decisions; and that the conclusion reached is not sustained by Perkins v. Simonds. The doctrine of the latter case is merely this: that where one of several children, heirs of a common parent, dies under age and intestate, his brothers and sisters shall be entitled to his property inherited from such parent, in the same proportions as if they had taken it from the parent directly; and the law calls this, technically, taking as heirs of the parent as the ancestor, and not taking as heirs of a deceased brother or sister. That case turned on the meaning of the word “ ancestor ” in sec. 4, ch. 92, R. S. Nash v. Cutler, 16 Pick., 491 (which is chiefly quoted in Perkins v. Simonds), simply decides that the statute and doctrine in question do not apply where the children take by voill from the father, but that in such case a mother inherits from a deceased minor child. Sheffield v. Lovering, 12 Mass., 490, merely states the effect of the statutes as to who take under it. McAfee v. Gilmore, 4 N. H., 391, holds that it does not apply where there is a will. Crowell v. Clough, 3 Foster, 207, and Prescott v. Carr, 9 id., 453, hold that under such a statute, upon the decease of one of the children unmarried and under age, brothers and sisters of the half bíood do not participate in his share of the inheritance. This fully supports Perkins v. Simonds. But the doctrine of these cases, and the statute on which it is founded, are merely a rule of descent, designating who the heirs shall be upon the decease of a person; saying,
The counsel for the defendant criticises the language used in the former opinion, where it is said that the plaintiff' took one-third of the share of Franz in the same manner she would have taken it if Franz had died before his mother. He insists that this statement of the rule of descent, if adhered to unqualifiedly, as laid down, will tend to shake all confidence in titles held under guardians’ sales, and will startle the profession when authoritatively announced as the law of the state. For he argues that it is the logical result of the rule, where the heir takes from the ancestor, that
Tbe language criticised by counsel is quite similar to that used by C. J. Shaw in Nash v. Cutler, while speaking of tbe purpose of a section of tbe statute of that state regulating tbe descent of intestate estate to children where one of them happens to die in infancy. And be said in that case that tbe provision intended that tbe infant’s portion of tbe intestate’s estate should go just in tbe same manner as if such child bad died ■ in tbe lifetime of the ancestor, or, in other words to those who would have taken tbe same share if such child bad not existed This language is sufficiently accurate when speaking of tbe general purpose of tbe statute. But while determining as to what estate was taken by tbe plaintiff on tbe death of Franz, it was not intended to affirm as an absolute rule that tbe other children would take tbe title on tbe death of tbe minor unaffected by any conditions, as though such minor bad never in fact existed. That is to say, it is not decided that if tbe estate of Franz bad been sold for his-suj)-port and maintenance, or for bis education, as it might have been under tbe statute, tbe purchaser would not have acquired a perfect title. Tbe purchaser at tbe guardian’s sale would take tbe title, and that title would not be divested on tbe infant’s death, so as to go to tbe surviving children in tbe same manner as if such infant bad died in tbe lifetime of the ancestor. So that it is quite true, as argued by counsel, while we regard tbe inheritance as coming from tbe ancestor in order to give it according to tbe statute to tbe other children, still we must and do consider whether there are any facts and circumstances affecting tbe share which descended to'tbe infant, which take it out of tbe rule. Tbe existing condition of tbe title is regarded; and when tbe property has been sold at a guardian’s sale for tbe benefit of tbe infant, tbe provision regulating descent does not apply.
It results from these views that the decision of the circuit court must be affirmed.
By the Court. — Judgment affirmed.