Jackson ex dem. Sitrer v. Waltermire

Curia, per Savage, Ch. J. When this cause was formerly before us, we decided that the court of common pleas had jurisdiction, and that the evidence of the seisin of the husband was sufficient. The latter point only appears in the printed report "of the case; but the other point must have been decided; for although the other points necessary to a recovery of the lessor’s dower might have been never so fully proved, or even admitted, still she could not recover in this action, unless the proceedings before «the common pleas were valid. Such was, in fact, the decision, as appears from a statement made by me for the plaintiff’s counsel, before the report of the case appeared, and that the facts in the case warrant such a decision, is very apparent. By the act, (1 R. L. 62,) any widow may apply for ad-measurement of her dower, after the expiration of 40 days [356] from the-death, of her husband. It does not appear in her petition to the common pleas, that her husband had been dead 40 days when it was presented; nor does the statute require that the petition should state -that fact. The court may have had evidence of the fact, or it may have been admitted. It-is sufficient for pur purpose, that it now appears that the .-husband died on the last day of April, 1821, and the petition of the widow is dated Aug. 19th, 1822 ; was duly served on the defendant, and presented at the August term, 1822. The court may judicially notice, that there ar§ more than 40 days in 14 1-2 months. The case of Adkins v. Brewer, (3 Cowen, 206,) was cited, to prove that inferior tribunals must show that they had jurisdiction. The case is not applicable. The statute authorizing an attachment, requires proof of the fact to be made to the justice, before the attachment issues. The act relative to dower, does not require proof of the death of the husband 40 days previous to the presentment of a petition. Nor does the act, in terms, require any proof. The fact may be conceded. At. all events, the question does not properly arise here, as to the regularity of -the proceedings in the common pleas. If those proceedings have been irregular, a motion should be made to that court to set them aside. In the case of Adkins v. Brewer, we .intimated, that we would not inquire .collaterally into the jurisdiction of the court. It came up directly in an action of trespass. So in Powers v. The People, (4 John. 292,) the question arose on certiorari. In this case it appears that due notice of the application was given. - The defendant might have shown for cause, if true,-that 40 days had not expired after the. death of the *husband. The plaintiff is, therefore, entitled to recover, unless the evidence produced by the defendant is sufficient to prevent it The testimony of the defendant consists of the facts stated by Halstead; that he purchased the possession of 50 acres of the same lot; and of the deed from Sitzer to Wilcox. By this deed, Sitzer conveys to Wilcox, his heirs and assigns, all the right of the grantor, to the [357] possession and improvements of the farm in question; and covenants, that he is lawfully possessed of the premises, as the same are truly granted. This deed is one link in the chain of the defendant's title, The farm has been held under it ever since its date, November 16th, 1785; and, without doubt, the defendant is protected by that deed, and his possession under it, from the claims of any person, upon the facts as they appear in this case. It was not accompanied with any declarations, as in Jackson v. Frost, (5 Cowen, 346,) which showed the absence of right and title. The grantor conveys the possession forever. He does not say that he conveyed a fee ; but such must have been the intent. The deed is inartificially drawn ; but if we apply the rule laid down by lord Mansfield, (Cowp. 600,) “ that deeds shall operate according to the intention of the parties, if by law they may,” there can be no doubt that it carried a fee. The intention of the grantor was, to pass all his title; and he supposed himself to have an estate of inheritance. (And Vid. 3 Dall. 477.) Judgment for the plaintiff.