Moross v. Moross

Grant, J. (after stating the facts). If the action is based upon the decree, the defendant’s contention should prevail, because every such action must be brought within 10 years after the entry of the decree. 3 Comp. Laws, § 9751. If it is not based upon the decree, then the plaintiff! must prevail, because this is a real action, and the'statute gives her 15 years within which to bring it after the right has accrued. 3 Comp. Laws, § 9714, subd. 3. The decree is entirely silent as to the property rights of the plaintiff. No alimony, even, was decreed her. She was granted a decree, with the custody of her minor child. A wife’s inchoate right of dower becomes fixed and recoverable by suit on the happening of two events,— death (3 Comp. Laws, § 8918), and divorce for certain causes (3 Comp. Laws, § 8639). Extreme cruelty is one of the causes covered by the statute. Rea v. Rea, 63 Mich. 257 (29 N. W. 703). The statute gives her “dower in his lands in the same manner as if he were dead.” As to her property rights, he became legally dead when the divorce was granted. In establishing this right, the law makes no distinction between actual death and legal death. Her right is not based upon the decree, and her suit is not brought upon it. The decree is the evidence only that the event had happened by which her right of action to recover that which the statute gives her had accrued. The statute, not the decree, gave her dower in her husband’s lands. The decree, under the statute, simply fixed the time when her right of action accrued. Whether the death be actual or legal, the statute of limitations in regard to real actions controls, and it follows that the judgment must be affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.