Robie & Wife v. Flanders

Pbrley, C. J. By the statute of June 19, 1805, it was provided that no person or persons should make any entry into land, or should sue or maintain any action for the recovery of any lands or tenements, unless such person or persons, or those under whom they claimed, had been seized within twenty years. Moor v. Frost, 3 N. H. 126; Barnard v. Edwards, 4 N. H. 107. In the Revised Statutes the limitation of real actions is in the following terms : “No action for the recovery of any real estate shall be maintained unless such action is brought within twenty years after the right first accrued to the plaintiff, or to the person under whom he claims, to commence an action for the recovery thereof.” The ground taken by the defendant is that this limitation applies to the writ of dower, and begins to run from the time when the widow’s right to dower accrues on the death of her husband, and not from the time when by our statute she is entitled to commence a suit after the expiration of one month from her demand of dower. But we think there was no intention on the general revision of the statutes to make such a change in the law, but merely to reenact the former limitation in briefer and simpler terms. The former statute required the demandant to show that he had been seized within twenty years next before the commencement of his action. But where an action was brought to recover land of which the plaintiff had been wrongfully dispossessed, his seizin would, in contemplation of law, continue down to the time of the wrong which he complained of, and which gave him his cause of action. His seizin would end at the same time when his action accrued, and under the former statute the plaintiff was required to bring his action within twenty years after it accrued. The substance therefore of the two statutes is in reality exactly the same, although the phraseology is somewhat changed. By both limitations the plaintiff is required to bring his suit within twenty years next after his right of action ac [529] crues, and by both his action is barred if for twenty years he acquiesces in a wrongful dispossession of his land. Besides, by the Revised Statutes the suit is to be brought within twenty years after the right accrues to commence an action, and not within twenty years after the right or title in the land accrues. No right of commencing an action has accrued to the widow, and she has- suffered no wrong until the tenant has neglected to assign dower for one month after she has demanded it. This plaintiff’s right to commence an action did not accrue on the death of her husband, but upon the expiration of one month from her demand of dower. We think, therefore, that the plea stated in the case is bad, and that the demurrer to it was properly allowed. Before assignment the widow’s .right to dower is not regarded as an article which she can convey. The writ of dower must be in her name, and cannot be maintained in the name of an assignee or purchaser. There is no ground to hold that her right to dower would be forfeited by an attempt to sell and convey. The party who takes a conveyance of the right of dower would have an equitable interest, and in this case he has an express authority from the widow to prosecute the suit in her name. It could not be prosecuted in any other, and we think the suit might be carried on by the assignee in the name of the widow, though according to his contract with her the recovery might be for his benefit. Powell v. Powell, 10 Ala. 900. The motion to dismiss the suit was therefore properly denied. Judgment for the plaintiffs.