Smallridge v. Hazlett

Opinion of the court by JUDGE BURNAM — Affirming. The plaintiff brought this action to recover dower in four iseparate tracts of land in the possession of the appellees, which she alleges her husband had in his possession for 17 years before his death under a bond for title from the heirs of one Taylor, but which he sold and disposed of previous to his death. From the evidence in this case it appears that the tract of 204 acres of land in which the plaintiff soúg’ht dower is within the limits of the grant from the State of Virginia to one Taylor of 17,800 acres, issued in 1788, and that on the 5th day of January, 1859, M. T. Bolt, as agent for Richard Apperson, who held a power of attorney from, the Taylor heirs, sold by executory contract the 204 acres to C. P. iSmallridge, the deceased husband of plaintiff, and executed to him a bond for title, in which it was agreed 'that Apperson would convey or cause to be conveyed the tract of land by deed, upon the payment by Smallridge of $244.80, •the purchase money thereof. There is no evidence in the record that Apperson ever complied with the title bond of Bolt by the execution of the deed to Smallridge. It further appears that the land was never actually occupied, inclosed or cultivated by Smallridge during his alleged ownership under the title bond from Bolt. But it does appear that he occasionally cut trees and tanbark therefrom, and listed it for taxation in his own name until about the year [844] 1S77, when he sold and conveyed it by general warranty deed to the appellees, who took possession thereunder, and have so continued until the institution of this suit. The defendants resisted recovery' upon the ground that the plaintiff, under this state of facts, was not entitled to dower. Upon final submission, the circuit judge dismissed plaintiff’s petition, and she has appealed. By the common law the wife was not entitled to dower in land to which her husband had an equitable .title, merely, and which he sold and disposed of before jhis death. See Hamilton v. Hughes, 29 Ky., 581. And the Kentucky Statutes (section 2132) provides that: “After the death of the husband, the wife shall be endowed for her life of one-third of the real estate whereof he, or any one for his use was seized of an estate in fee simple at any time during the coverture, unless her right to such dower shall have been barred, forfeited or relinquished.” And section 2142 of the Kentucky Statutes provides: “If the husband held land by executory contract only, the wife shall not be endowed of the lánd, unless he owned such equitable right at his death.” In our opinion, these sections of the Kentucky Statutes, which were also sections of the Revised Statutes, do not change .the common-law rule in so far as it requires that there must have been actual seisin of an estate in fee simple of lands by the husband during coveCtur’e, to- entitle the widow to dower. See Fontaine v. Dunlap, 82 Ky., 321 (6 R., 201); Gully v. Ray, 18 B. Mon., 107; Dean’s Heirs v. Mitchell’s Heirs, 27 Ivy., 451. And an occasional cutting of timber, tanbark, etc., upon the uninclosed tract of wild land, is not sufficient evidence of seisin to vest the husband of an estate in fee simple. But the appellant contends that, as the appellees! acquired their right to and possession of the land from the deed [845] of her deceased husband, they can not, in a suit for dower, deny his seisin of the land so held by them. And this contention seems to be supported by the early case of Dashiel v. Collier, 27 Ky., 601. This case wás decided before the enactment of section 2112 of the statutes. And in the case of Gully v. Ray, 18 B. Mon., 107, in a very careful and well-considered opinion, it was held: “The purchaser was not estopped by the husband’s deed from explaining” the nature of his seisin, and showing that it was not of such a character as entitled his wife to dower in the land.” And this, conclusion seems to us more in accordance with the spirit both of the common law and the subsequent statute. Wherefore the judgment dismissing plaintiff’s petition is affirmed.