Cowan v. Lindsay

LyON, J. We think that tbe bringing of tbe action is a sufficient demand of her dower by tbe plaintiff, and that tbe right to maintain tbe action does not depend upon a previous [589] demand therefor. The only effect of the want of such previous demand is to relieve the defendant from the liability to pay damages for withholding such dower interest, up to the time when the action was commenced. Tayl. Sts., 1161, § 25. It is undisputed that the plaintiff was lawfully married to Preston, that Preston was seized of the lands in question, in fee simple, during the coverture, and that the plaintiff has never released her dower interest therein. If, therefore, Preston died before this action was brought, the plaintiff is entitled to recover such dower interest unless she is barred by the statute of limitations. Does the evidence demonstrate that Preston is' dead, so clearly or conclusively that the court was justified in tailing that question from the jury ? This is the first question to be determined. The-rule of law applicable to this question, and by which it must be decided, is thus stated by Professor Greenleaf in his treatise on the law of evidence, in vol. 1, § 41: “ Where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.” Although there are some dicta, and, perhaps, some adjudications to the contrary to be found in the boots, yet, the rule as above stated is too firmly settled to be now disturbed. Many of the cases which hold this rule are cited in the notes of the above section in 1 Grreenl. Ev. In this case the evidence is conclusive that Preston had been absent from his home or place of residence more than twenty-one years before the action was commenced, and that there had been no intelligence respecting him for about twenty years. This was prima facie evidence that he was dead, and cast the burden of proof upon the defendant to show that he was living. The defendant failed to introduce any testimony tending to [590] prove that fact. Hence, it became a verity in tbe case that Preston was dead, and tbe court properly so beld. Had there been any testimony tending to sbow Preston living within tbe seven years next before tbe action was commenced, the question as to whether be was living or dead would have been a proper one for tbe jury, but in tbe absence of such testimony there was nothing for tbe jury to pass upon. Is the action barred by the statute of limitations? This question must be answered in the negative. Tbe learned counsel for the defendant claims that because the defendant has had the requisite possession of the lands described in the complaint for more than ten years since the death of Preston, or since the time when it is to be presumed that be was dead, claiming title thereto exclusive of any other right, by virtue of the sheriff’s deed, such possession is adverse to the plaintiff, and her action is barred by the statute. Tayl. Sts., 1622-3, §§ 6 and 10. It was beld in the recent case of McEvoy v. Lloyd, 29 Wis., that the statute could not be successfully invoked to protect the person in possession, unless the premises claimed were included in the written instrument or judgment upon which the occupant founds his claim. That case is decisive of this question. Tbe sheriff’s deed only purports to convey the interest in the premises which Preston, the judgment debtor, had on a certain day. It does not include the plaintiff’s dower interest, and hence cannot be made the hasis of an adverse bolding of her dower interest in the premises, so as to bar her right of action to recover the same after the lapse of ten years, by virtue of the statute above mentioned. These views render it unnecessary to consider whether tbe statutes of limitation would have run against tbe plaintiff’s claim for dower bad tbe conveyance under which tbe defendant claims, by its terms, included such dower interest. Tbe questions which we have considered and determined are controlling ones in tbe case, and we deem it quite unnecessary to pass upon some points of minor importance which were discussed some591 wltat in the argument, any further than to say that we find nothing in the case which will justify this court in disturbing the judgment of the circuit court. By the Court. — Judgment affirmed