Judges： Pryor
Filed Date： 12/12/1885
Status： Precedential
Modified Date： 11/9/2024
Opinion by
Lewis Meyers of the county of Grant died some years since, leaving his widow, Rachel Meyers, surviving him, and at his death was the owner of a large landed estate.
He was much involved, and John Meyers, his son, who had qualified as the administrator, brought his action in equity against the widow, heirs and creditors to settle the estate and to sell the land for the payment of debts. His widow, Rachel Meyers, asserted her right to dower in a tract of land that had been sold under a judgment against John Meyers and purchased by the appellant, E. PI. Smith. The land was sold as the property of John Meyers, the tract containing about two hundred twelve acres.
The sole question in the case is as to the right of the widow to dower, the chancellor below having adjudged her right to recover
E. H. Smith, who purchased this land under the sale by the commissioner, is resisting the right of recovery because there was never any legal or equitable seizin in Meyers, and if he was entitled to the land, it is then urged that the widow can not recover dower because more than fifteen years have passed since the entry by John Meyers under the parol gift, and if not, that the thirty years’ statute applies, it being near thirty-five years from the entry on the land by John to the institution of the action by the widow asserting her claim as doweress.
We shall assume that more than thirty years elapsed from the entry by John under the parol gift from his father, and that John claimed the land as his during all that time. Counsel for the appellant is attempting to sustain the novel position that as the widow claims through her husband, Lewis Meyers, the fifteen years’ statute, as well as the thirty years’ statute, bars the right of recovery. Either statute constitutes a bar where the period mentioned has elapsed after the right to institute the action first occurred to the plaintiff, or to the person through whom he claims the thirty years’ statute, excluding all exceptions found in other statutes in favor of those who were laboring under disabilities. •
In the first place it is reasonably assumed that the widow is claiming through or from her husband this right to dower. It is true that she becomes entitled to an interest of one-third in the lands of the husband, of which he was seized during the coverture, as her dower, and this right springs from the marital relation; but at the same time it is a right that the wife can not be deprived of by the husband or even by her own act, unless in pursuance of the
This court has also adjudged that a purchaser is not estopped by the husband’s deed from explaining the nature of his seizin in order to show that his widow is not entitled to dower. Where the husband having the equitable title parted with it, as well as the possession, to the purchaser and afterwards acquired the legal title, and then made a deed to the purchaser, this would not be such a seizin as would entitle the wife to dower. The widow is only entitled to dower in such equitable estates as belonged to the husband at his death. Gully v. Ray, 17 B. Mon. (Ky.) 107.
In this case the widow exhibits a deed from one Fowler to her husband for all the land except forty acres, the title to which was in Bartlett’s heirs and had been sold under certain equitable proceedings and purchased by one Howe. The benefit of the purchase was transferred to Lewis Meyers in 1841, and in ten years after that Bartlett’s heirs executed to him a deed. So here were two exhibits evidencing the legal title in Lewis Meyers, the one executed before the gift to John Meyers and the other after his entry under the gift. The son entered upon the land in 1845, erected upon it handsome buildings, opened a fine farm by cutting down the forest, and has been in the possession since that time claiming the land
If the father, at the time he made the gift transferred the claim of Howe, the equity would have passed to the son, and the execution of the conveyance to the father subsequently by the heirs of Bartlett would have inured to the benefit of John Meyers, and no right of dower could have been asserted by the mother. The only question of difficulty in the case arises as to her right of dower in the forty acres. The deed to the balance Lewis Meyers had when he made the parol gift, and the land is fully identified by his actual possession of it, and is shown by Norton to have been within the boundary of the conveyance passing the title to the unsold land. As to the forty acres, Lewis Meyers obtained a conveyance before any title, legal or equitable, passed out of him, and at that date John had no title, legal or equitable. In the case of Rucker v. Abell, 8 B. Mon. 566, 48 Am. Dec. 406, it was held that a verbal gift of land was wholly invalid and vested no title in the donee, legal or equitable; but as the donee had made improvements, he was entitled to a lien even as against creditors. Therefore the possession of John Meyers was not hostile to that of the father, and, being without legal or equitable title when this deed was made, his father had a legal seizin; and although the possession has ripened into a title by a claim of right on the part of the son, and a continued possession for thirty years, the widow’s right to dower must be sustained. The grantor in a deed may not be entitled to recover, and still the inchoate right to dower exist in the wife.
There is no superior title set up in this case hostile to that of Lewis Meyers, and the widow in order to show herself entitled to dower has exhibited the deeds to her husband and shown his possession under them. She is not required as against a purchaser from her husband or one who claims through him to trace the title from the commonwealth down as in ordinary actions of ejectment. The commissioners in allotting dower did not take the improvements into consideration. It was valued as if there were no improvements on it. Nor do we see where any land outside of the tract in controversy has been included in estimating dower. The commissioners say that the land mortgaged to the appellant was included.
Judgment affirmed'.