Kinsolving v. Pierce , 57 Ky. 782 ( 1858 )

Judge Simpson

delivered the opinion of the court.

The only question presented for our determination in this case is, can the purchaser of a widow’s right of dower, in lands which were alienated by her husband in his lifetime, maintain an action in his own name, against the alienee in possession, who is holding and claiming the lands as his own?

The conveyance of the widow’s right of dower was executed in May, 1854. The husband’s deeds to his alienee had been made many years previously.

The law prohibits the sale and conveyance of any lands, or the pretended right or title to the same, of which any other person, at the time of such sale, has adverse possession, and declares every such sale and conveyance absolutely null and void. (Revised Statutes, page 164.)

It is however, contended, that the possession of the vendee of the husband is not adverse to the dower-claim of the widow of his vendor, that the rights of both are derived from the same source, and that he holds the land subject to her right of dower.

The purchaser from the husband may by express contract, purchase subject to the wife’s contingent right of dower, and in such a case his holding would be presumed to be consistent with the terms of his purchase until he manifested his intention, by open and notorious acts, after her right accrued, to hold in opposition to it, and thus render his possession adverse; or, in the absence of such an express,agreement, he may, after the death of the husband, recognize the right of the widow’ to dower, and thus make his possession amicable, by holding subject to her claim.

But where, as in the present case, he denies her right, and claims and holds the land as his own, his possession is not only adverse to his vendor, but to alll persons claiming under him. The widow’s right of action accrues upon the death of her husband, and unless the possession be expressly held, subject to her claim, by the vendee, her right of action will be barred by the statute of limitations, if she fail to sue within the time allowed by law. This effect is produced because the possession of the vendee, under an executed contract, nothing appearing to the contrary, is regarded, in law, as adverse to all claimants. If, as contended, the possession must in all cases be deemed to be held by the vendee subject to her right of dower in the lands aliened by her husband in his lifetime, the consequence would be, that her claim might be asserted at'any-time, and would not come within the operation of the statute of limitations in any state of case, aithough-it has been held that her claim for dower will he barred unless it be acted on within the time allowed by .the statute in analogous cases. (Ralls vs. Hughes and Hedges, 1 Dana, 407.)

4. A widow’* right to dower accrues upon the death <> f the husband,and she will be haired by the operation of the statute of limitation if she fait to sue within the time allowed by law .

In our opinion, therefore, the purchase in this case is expressly embraced by the statute against champerty, and is obviously against the policy of the law.

Wherefore, the judgment of the circuit court dismissing the plaintiff’s petition is affirmed.