Jones v. Powell

The Chancellor. The original right of the plaintiff to her dower in the premises, as they were owned and enjoyed by her husband, at his death, is not disputed. The only question is, whether she be not barred of that right by the lapse of time, or by the acceptance of a collateral satisfaction in lieu of it. 1. It was upwards of twenty years between the time that the plaintiff removed from the premises, in which her dower is claimed, and the filing of the bill. Her removal was a voluntary act, after she had occupied these premises for upwards of two years, subsequent to her husband’s death. But the lapse of the twenty years was not a good legal bar, within the statute of limitations. If there was no other statute provision on the subject, I think it might [197] well have been contended, that the general act of limitations, passed in 1801, (L. N. Y. Vol. 1. 185.) applied to actions of dower. By that act, “ no person shall make an entry into lands, but within twenty years rfext after his right or title accrued.” This limitation would apply to the possessory action, called, in the case of a widow, a writ of dower unde nihil habet, (F. N. B. 147.) and which lies in case of deforcement of dower, by the refusal of the heir or purchaser to assign any dower. This limitation, however, might not have applied to the writ of right of dower, which, it is said, was necessary in the case where she was deforced of part only of her dower. (F. N. B. 8 C.) If the widow lost her dower by default, the statute of W.2. 13 Edw. I., (and which has been re-enacted among the provisions of the act of the 26th of January, 1787,) gave her the writ quod ei deforceat, which put in issue her right of dower, and which seems to have been in the nature of a writ of right. As far as her action, at law,: belonged to the class of possessory actions, founded on the right of entry, it would have fallen under the same limitation as an action of ejectment, and, as far as it partook of the nature of a writ of right, (for the writ of right, strictly so called, was only applicable to persons who claimed an: estate in fee,) it would seem to fall within the limitation of twenty-five years, applicable to the 'writ of right. The same general statute declares, that “ no action, for the recovery of any lands, fee., shall be maintained, fee., unless on a seisin or possession, fee., either of the plaintiff, fee., or of the ancestor or predecessor of the plaintiff, within 25 years, before such action bro’tight.” The general and sweeping language of this act, no less than the sound policy of it, would dictate the application of it to the action of dower, as well as to any other real action. But the act of April 7th, 1806, (1 N. R. L. 60.) declares, generally, that " a widow shall be at liberty, at any time during her life, to make a demand of her dower, agreeably [198] to the act of the 26th of January, 1787.” It also provided, 61 that the heir, or other proprietor or owner, after the expiration of the widow’s quarantine of 40 days, might cause notice 'in writing to be given to her to make demand of her dowei', within 90 days thereafter, and if she neglected, he might apply to the Surrogate, and cause her dower to be admeasured to her.” We may, therefore, put out of the consideration of this case, the effect of any legal limitation to the action of dower at law. The better opinion would be, that the limitation to 20 or 25 years, according to the nature of the action, under the act of 1801, was done away by the act of 1806 ; and to guard against the inconvenience of such an outstanding right, the act gives to the tenant of the freehold the means of coercing the assignment of dower. 2. The next point is, whether the plaintiff is not to be considered as equitably barred by means of the compensation, which she accepted, and rested upon during the lapse of 20 years. The facts are, that she was appointed, and acted as executrix of her husband’s will, and that will devised the property in question to two trustees, to be sold, and the proceeds “ equally divided among his wife and children.” The husband died in March, 1798, and the trustees, on the 30th of December, 1799, sold the lands devised (being the hoúse and lot in Water-street, in the village of JYewburgh) to the defendants, J. 8f T. Powell, for 5000 dollars, which was deemed the full value of the entire right to the lot. The plaintiff was then in possession, and refused to consent to a sale until another house and lot were provided for her and her children, and she actually negotiated for the house and lot in Smith-street, in the same village, and which were purchased and paid for by the trustees, out of the estate of the testator, and a deed, in fee, taken on the 11th of December, 1799, to the plaintiff, and the two trustees, by which means the plaintiff became [199] seised, in fee, of one undivided third part of the house and lot in Smith-street $ and in May, 1800, she removed into it, and has continued in it to this day, undisturbed, and without the charge of rent. She declared, at the time of the . negotiation, and purchase, and removal, and repeatedly since, and to several persons, that she was perfectly satisfied with the arrangement, and that she considered the exchange beneficial to her, and that she had, during the negotiation for the purchase, agreed with the trustees to relinquish her right in the one house, if the purchase was made of the other. It was generally understood in the village of New-burgh, at the time the plaintiff took possession of the Smith-street house and lot, that she received them in satisfaction of her right of dower in the other. This conclusion was drawn by individuals who conversed with her, and from the facts attending the transaction. Her admissions to several persons were, that she took the one house and lot, under the deed, in satisfaction of her right to the other 3 and her relinquishment of the one house, and taking possession of the other, was an execution of the agreement. She resided in the house in Smith-street, and saw, under her eye, great and costly improvements, made by the purchasers, upon the lot in Water-street, and the sale of it, in 1814, to the defendants, R. and F., for the sum of 17,000 dollars; and, when applied to, at that time, by P. T., one of the sellers, relative to a rumour, that she intended to assert a claim of dower to the land, she replied, that she had never authorized such a report. She remained passive,'and without advancing any claim or demand, until the commencement of the present suit. Is she not now equitably barred ? After receiving such a compensation, which she accepted as a satisfactory equivalent, it would be very unjust to allow her to set up her claim of dower. Her acquiescence in the equivalent, for so long a period, during which the property has been within her own view, and has undergone great- changes. [200] I and expensive improvements, is an equitable estoppel, /.and ought to have barred her conscience from the assertion of this claim. It is an act of. fraud upon the purchasers, . and to be condemned upon1 every principle of policy and morality. At Jaw, the wife can only be opposed by a legal bar; but now, says Lord Loughborough, (Mundy v. Mundy, 2 Vesey, jr. 122.) equitable bars are in daily practice. If the dry legal title be in controversy, it must be made out at law; but, otherwise, the Court of Chancery has a concurrent jurisdiction ; and, in these cases of equitable bars, its jurisdiction is exclusive. A collateral satisfaction is not pleadable at law, in bar to a freehold right. So says Lord Coke ; (Co. Litt. 366.) but in equity, the conscience of the party is under a better discipline, and the acceptance of a term of years, or of a sum of money, or of any other kind of collateral satisfaction, will constitute a good bar. (Harg. note 224. Ibid.) There is no reason, why a widow, who is a free and competent moral agent, should not have the capacity to agree to any fanT’arraiigement which convenience or prudence dictated, by which her dower should be extinguished by an equivalent substitute, in money or in land. In the time of Littleton, when freehold titles were regarded, at law, with great and scrupulous care, if not with superstitious reverence, it was still held, (Litt. s. 41.) that if the wife be endowed ad ostium ecclesice, or by her husband ex assensupatris, and, after his death, she entered and agreed to the dower, she was concluded to claim any other by the common law. Her acceptance of the one, and waiver of the other, formed, at that early period, a legal bar; and equity, in that instance, enlightened the case, and relaxed the rigour of the rules of the common law. Chancery has a concurrent jurisdiction as to legal bars ; and as to equitable bars, its jurisdiction is exclusive. I shall, upon these facts, hold the plaintiff concluded from asserting her claim of dower, and that they form an equitable bar. Bill dismissed, without costs.