Littleton v. Patterson

Dryden, Judge, delivered the opinion of the ccrart. The only question arising in this case is whether the law limiting actions for the recovery of real estate, approved February 2, 1847 (Sess. Acts 1847, p. 94), and carried into the revision of 1855 (R. C. 1855, p. 1045), includes the limitation of suits for dower. [365] The first section of the act is as follows : “ Sec. 1. No action at law, or suit in equity, for the recovery of any lands, tenements, or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or non-resident of this State, unless it appear that the plaintiff, his ancestor, predecessor, grantor, or other person under whom he claims, was seized or possessed of the premises in question within ten years before the commencement of such action or suit.” The second section relates to the sufficiency of an entry; and the fourth section contains a saving of those under the usual disabilities from the operation of the limitation. The law implies a previous seizure or possession of the thing demanded ; and the limitation is of the right of action or of entry caused by the disseisin, and dates from the time of the disseisin. The right limited is a present, existing right of action or of entry, and none the less so because the one in whom the right is vested is under some disability to sue. But the wife’s right to dower is not of this sort. Until her husband’s death her right is inchoate, imperfect, contingent upon her surviving him. She is not laboring under the disability contemplated by the saving clause of the statute to enforce an existing right of action, as would be the case if during coverture she was disseized of an estate that had descended to her, but she is without such right as is actionable. By the death of her husband, her right of action becomes complete. This right, however, is merely a chose in action, and not a right of entry or a right of action for possession, which depends for its existence on the assignment of dower; and having no right of action or of entry until dower is assigned, her rights are not within the bar of the statute. We are sustained in the conclusion at which we have arrived by the decisions of the English courts, and of the courts of most of the American States, based upon statutes substantially like our own. A different line of decision is found in New Hampshire, South Carolina, and one or two other States, [366] resulting from the marked difference between their statutes of limitation and those of the States ranged on the other side of the question. The other judges concurring, the judgment of the Land Court will be affirmed.