Winters v. DeTurk

Opinion, Me. Chief Justice Paxson : At common law a Avife was entitled to dower out of any lands of which her husband was seised at any time during coverture. Under our law, the wife may convey her right to dower by joining with her husband in the deed. But if the husband convey his land Avithout his wife so joining and executing the deed as prescribed by the act of assembly, her dower rights do not pass, and she can claim them after the death of -her husband. In this case, the husband conveyed the real estate in controversy in 1847. His wife did not join in said conveyance, nor did she in any manner release her dower rights. The title to the property finally became vested in Jeremiah DeTurk, the appellant and defendant below. Isaac Winters, the husband and grantor, died in 1886, and shortly thereafter this claim for dower was made by his widow out of the land in the possession of the appellant. It was resisted upon the ground that it was barred by the statute of limitations. The learned judge below thought otherwise, and, there being no facts in dispute, directed a verdict in favor of the plaintiff. It is difficult to see how the statute can run against any person until his or her right has accrued. No right accrued to the [365] widow in this case until the death of her husband, and it would seem to follow logically that the statute could not commence to run until then. It was so held iii Culler v. Motzer, 13 S. & R. 356, where it was said by Justice Duncan : “ I cannot assent to the doctrine of tlie Court of Common Pleas, that where the husband conveys without his wife’s joining, the statute of limitations runs during the coverture. If the entry and possession had been adverse to the husband’s right, and his right of entry had been barred by the statute of limitations, the widow’s dower would have been barred. Our act of limitations comprehends, as well all possessory actions as all real actions; but here, the entry was not adverse to the right of the husband. All was a continuation of the same inheritance, and therefore the statute would not begin to run until the death of the husband.” In Hall v. Vandegrift, 3 Binn. 374, the principle is laid down that, “ it is the spirit of the act of limitations to allow twenty-one years from the time that a person might make an entry, and support an action, the statute not stopping after it has begun to run, in consequence of infancy, coverture, or any other disability. But if a party has not a right of entry, but only a possibility which may give a right of entry at a future day, the statute does not run against him until that right accrues. Hence, notwithstanding the next heir in tail releases to the tenant in tail in possession, the statute does not run against the releasor until the death of the tenant in tail without issue.” The principle indicated in these cases could be fortified, were it necessary, by copious citations, not only from the text-books, but from the decisions both in this country and in England, but I apprehend the law is too well settled to require it. Care v. Keller, 77 Pa. 487, was cited with much confidence in support of the opposite view, but a careful examination of it shows that it is not authority for the principle contended for by the defendant. It is true the broad principle is there asserted “ that the statute of limitations of 1785 applies to an action of dower unde nihil liabot, brought by a widow for property of which her husband had been seised, but which he hud alienated before his death.,” This principle is not denied, and, had the plaintiff delayed her action for twenty-one years after her husband’s death, I concede her right of action would have been [366] barred by the statute. This was precisely the case m Care v. Keller. There the plaintiff claimed as the widow of John Keller. Her husband sold the real estate by articles of agreement to George Keller. This contract was afterwards enforced specifically by a decree of the Orphans’ Court. John Keller, the vendor, died in March, 1846. George Keller, his vendee, moved on the premises the following April, and remained in possession, as owner, until 1848, when the administrator of John made him a deed for the property iii pursuance of the decree of the Orphans’ Court for specific performance. The widow brought her suit for dower within twenty-one years from, the date of the deed, but more than twenty-one years from the time when George Keller took possession of the land under his contract, and the court held that her right of action accrued “ when the vendee, by some unmistakable act or declaration, after the death of the vendor, asserted his right under the contract, and claimed the ownership of the land; ” and that the estate was equitably converted by the contract, and specific performance under the decree related back to the contract of sale, in giving effect to the rights acquired under it. That the question we are now discussing was not raised or considered in that case is clear, from the foregoing review of it. The widow’s right accrued, and was lost by her failure to prosecute it within twenty-one years. It requires but a cursory examination of the act of 1785 to see that it applies only to cases where a right of entry or a right of action has accrued, and that the statute commences to run only from that time. This has been expressly decided: Hall v. Vandegrift, supra; Shepley v. Lytle, 6 W. 500; Poe v. Foster, 4 W. & S. 355; Marple v. Myers, 12 Pa. 125. It was not error, therefore, for the learned judge below to refuse the defendant’s first point as applicable to this case. He correctly said in answering it that the statute began to run from the death of plaintiff’s husband, and for this reason the point did not apply to the facts of the case. Nor was there error in refusing defendant’s second point. It assumed a fact not in the case, viz., that the property had been held adversely to the husband for more than twenty-one years before suit brought. There was no such adverse holding. On the contrary, the defendant held under the title of the husband, and not adversely [367] to it. There is no analogy between such a case and that of a disseisor who has turned husband and wife out of possession, and holds adversely to them for twenty-one years. In that case, the title and seisin of the husband is destroyed, and with the destruction of the husband’s title the right of the wife to dower falls with it. So, if the premises are sold by a judicial sale for the husband’s debt. In such case, the purchaser takes and holds adversely to his title. But, where a husband makes a voluntary conveyance of his title to a purchaser without his wife joining therein, her rights do not pass by such conveyance ; her right of action does not accrue until her husband’s death, and the statute does not run against her until then. Judgment affirmed.