Knight v. Mains , 12 Me. 41 ( 1835 )

Parris J.

The only question, in this case, is, whether the evidence shews such a seizin, in James Mains, of the premises in which dower is claimed by the demandant, as entitles her to maintain this action against the tenant.

Possession is evidence of seizin; and the seizin of the husband is proved by shewing his actual possession of the premises. 2 Phil. Ev. 187.

It is sufficient for the widow to shew that her husband had been in possession during the coverture, and it is then incumbent on the defendant to prove a paramount title in himself. Forrest v. Trammell, 1 Bailey’s Rep. 77; Jackson v. Waltermire, 5 Cowan, 299.

James Mains was seised against all persons and claims, except the State. He had been in possession fifteen or sixteen years, resided on the premises with his family, erected a house and barn thereon, occupied the land by tilling, pasturing, cutting hay, and claimed it as his own, calling it his property.

Surely this is all the evidence of seizin that would have been required to enable James Mains to maintain a writ of entry against any person who, without title, had interrupted his possession. As against the State he was not seised, but as against all persons not deriving title under the State he was seised, and could, by legal remedy, have protected his seizin and possession; and as the dowress is in of the estate of her husband, her claim, which is the favorite of the common law, would be equally protected.

This is analogous, in principle, to the decisions giving to the widow of a mortgagor, dower in the lauds mortgaged against any except the mortgagee and those claiming under him. So long as the mortgagee does not exert his right of entry or foreclosure, the mortgagor is regarded as seised in respect to all the world but the mortgagee and his assigns, and the widow of the mortgagor is entitled to dower, liable, however, to be defeated by the entry of the mortgagee.

The tenant, in the case at bar, is not aided by his conveyance from the State, for in that the widow’s rights are expressly recognised, and the tenant stands in the same situation he did previous to that conveyance. — It is true, as contended by his counsel, the reservation in the deed from the State to him does not give dower to the widow, but the deed confers no rights upon him, as against the widow, to defeat her claim to dower. Without that deed, he, being a stranger, clearly could not interrupt her in the enjoyment of dower. Under it, he cannot because of the reservation, which secures to her the right of having the same set off to her in the same mannnr she would have had, if the lot had been the property of James Mains at the time of his decease.” By accepting a conveyance from the State with. this reservation, the tenant has precluded himself from the opportunity of exercising towards his mother, a power by which, while he might be enriched, she would be deprived of a shelter -and a home.

We believe that the honest arrangement, made between the State and the tenant, in favor of his mother, can be substantially enforced under this action, without doing violence to any settled principles of law, ,