Burt v. C. W. Cook Sheep Co.

10 Mont. 571

• Court: Montana Supreme Court
• Decided: June 15, 1891
• Status: Published

Opinion

Harwood, J.

The sole question brought to this court for determination by this appeal is, what effect has the general Statute of Limitations of this State upon the right of a widow to maintain the action provided by the dower act for the assignment of dower?

It appears from the record in this case that plaintiff filed her complaint, setting forth, in effect, that plaintiff intermarried with Henry S. Crittenden, September 13, 1874, and lived with her said husband from that date continuously in Montana until his death, which occurred in the month of October, 1878; that during said coverture, her said husband was seised in fee of certain real estate described and situate in Meagher County. that about the month of November, 1877, the said Crittenden sold and conveyed said land, without the plaintiff’s consent and without her joining in such conveyance, and that plaintiff has never relinquished her dower right in said land; that defendants are now in possession of said land, and claim to own the samé.

The court below sustained defendants’ demurrer to the complaint, on the ground that it appeared from the facts stated that the Statute of Limitations barred plaintiff’s right to maintain her suit for the assignment of dower. Plaintiff appealed, and the same point has been argued with great ability and research before this court.

There is considerable variation in the decisions of courts of last resort upon this question, not only as to the conclusions reached, but also as to the reasons assigned therefor. It would be an unnecessary task, here to set forth a review of all the decisions which we have examined upon this question, because that work has been thoroughly done by able writers. (2 Scribner on Dower, 523-543; 4 Kent Com. [13th ed.] 70, and notes; Washburn on Beal Property, 276-278; Angelí on Limitations, § 367; Wood on Limitation of Actions, 584, 585; Tiedeman on Beal Property, § 131.)

In setting forth the reasons upon which we arrive at the conelusions herein announced, we shall bring to attention such cases as illustrate the different views heretofore held by the courts, and the different statutes upon which the same were founded. These, together with the dicta of able writers, shell as cited supra, and the collation of authorities by them cited, which we have to a large extent examined, have given us much aid in determining the question before us.

The prototype of the Statutes of Limitations, enacted in the various States of the American Union, is undoubtedly the early English statutes on the same subject. (Angelí on Limitations, ch. 2; Wood on Limitation of Actions, ch. 1.) We observe, as bearing upon the question before us, that it is agreed by the writers, that it has been uniformly held by the English courts, .¡that the general Statutes of Limitations of England did not ¡apply to writs for assignment of dower; but in later times .•special statutes have been passed limiting the period for the ¡.assertion of that right. (See authorities cited supra.)

In -the United States, as before observed, and as will be seen ??oy an examination, the holding is not uniform. But the terms of the Statutes of Limitation vary greatly in different States, . as will be seen by comparison (Angelí on Limitations, and Wood on Limitation of Actions, Appendix); and it is therefore not at all strange that while in some cases the action or ¡suit for the assignment of dower is held to be within the statute, by reason of its terms, in other cases and under statutes ¡..of different terms the contrary is held.

In the case of Jones v. Powell, 6 Johns. Ch. 194, decided in 1822, Chancellor Kent uses language tending strongly to indimate that he held the opinion that the general Statute of Limitation, in force in New York at that time, according to its terms, would bar an action for the assignment of dower. However, the decision was not controlled by the general statute commented on, because the dower act there provided that “a widow shall be at liberty at any time during her life to make a demand for her dower.” In view of that provision the chancellor observes that the court “may therefore put out of the consideration of this case the effect of any legal limitation to the action of dower.” The comments of the chancellor in that case, .although upon statutes which did not control his decision, carry much weight in view of his eminent abilities, and are justly relied on by counsel for respondent. One provision of the statute commented on is quoted in the opinion as follows: “No person shall make any entry into lands, but within twenty-one years next after his right of action accrued.” This limitation, it was thought, would bar the possessory action of the" widow for dower. Notwithstanding the views of the chancellor expressed in that case, we observe that when he afterward wrote the fourth volume of his commentaries, in treating of the subject of the limitation of the action of dower, he cites other cases where the question had come under consideration in the United States, but makes no mention of the case of Jones v. Powell, supra, nor does he express the views therein set down. Evidently that case was regarded as containing only a passing comment on a statute which did not control the decision. The author says: “ In the English law, the wife’s remedy by action for her dower is not within the ordinary Statutes of Limitations, for the widow has no seisin; but a fine levied by the husband, or his alienee or heir, will bar her, by force of the statute of non-claims, unless she brings her action within five years after her title accrues, and her disabilities, if any, be removed. In South Carolina, it was held in Ramsay v. Dozier, 3 Brev. 246, and again in Boyle v. Rowand, 3 Desaus. Eq. 555, that time was a bar to dower, as well as to other claims. But in the English law there is no bar; and in New Hampshire, Massachusetts, and Georgia, it has been adjudged that the writ of dower was not within the Statutes of Limitations. As to the account against the heir for the mesne profits, the widow is entitled to the same from the time her title accrues; and unless some special cause be shown, courts of equity carry the account back to the death of the husband. The New York Bevised Statutes have given a precise period of limitation, and require dower to be demanded within twenty-one years from the time of the death of the husband, or from the termination of the disabilities therein mentioned.”

The Revised Statutes of New York, “giving a precise period of limitation” to the action for dower mentioned in the text quoted, was passed after the decision of the case of Jones v. Powell. After the decision of that case, the question of the effect of the general Statute of Limitations upon the widow’s right of action for assignment of dower arose in certain cases, which he mentions, and were determined upon the consideration of the general statutes; notably the cases of Barnard v. Edwards, 4 N. H. 107; 17 Am. Dec. 403; and Parker v. Obear, 7 Met. 24; wherein it was held that general statutes, very much like that of New York when the case of Jones v. Powell was decided, do not apply to the dower right. We shall have occasion to refer to these cases further along in this opinion.

In 1847 the Supreme Court of Michigan, in an elaborate opinion (May v. Rumney, 1 Mich. 1), reviewing the American and English authorities, arrived at the same conclusion expressed in the Massachusetts and New Hampshire cases, supra. So in Missouri in 1862, under a statute substantially like the present statute of Montana, it was held that the general Statute of Limitation did not bar the dower right. (Littleton v. Patterson, 32 Mo. 357.)

In Michigan the question came before the Supreme Court again in 1878 (Proctor v. Bigelow, 38 Mich. 282); and it was-held that the statute as it then stood barred the widow’s action for dower. Some changes it appears had been made in the-statute since the case of May v. Rumney was decided, relating to the action for dower, which are reviewed by Chief Justice Campbell in the opinion, and the conclusion announced was placed upon the ground that the action for the assignment of dower, being by statute made an action of ejectment, was within the general terms of the Statute of Limitation, which was quoted in the opinion as follows: “No person shall commence an action for the recovery of any lands, nor make any entry thereupon, unless within twenty years after the right to-make such entry or bring such action first accrued.”

The statute just quoted from the Michigan decision, and the statute of Montana quoted above, furnish an illustration of two quite common forms of statutes on the subject before us. The Michigan statute, and others of that form, provides the limitation, from the time the right to make the entry or bring the action “first accrued”; while the statute of Montana and others of like terms provide that the action is barred, “unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question ” within the time prescribed. Now, as applicable to the right of dower, the two forms of statute are vastly different. Dower is a life estate, in the widow, cast by law, in conjunction with certain conditions, which together operate to initiate and consummate the right of dower. The wife has no possession or seisin, nor has •she a right thereto, until the estate is consummated and assigned. It cannot in the nature of this particular estate be logically maintained that the widow has any ancestor, predecessor, or grantor of the dower right, in the sense in which those terms are used in section 29 of our Code of Civil Procedure. Mr. Angelí, in his work on Limitations, says: “Dower is not within the Statute of Limitation of Henry, or of James; but a fine levied by the husband, or his alienee or heir, will bar her by force of the statute of non-claims, unless she bring her ¡action within five years after the accruing of her title, and the removal of her disabilities, if any. In New Hampshire, in Georgia, in North Carolina, and in Tennessee, the writ is not within the Statute of Limitations, and in Maryland it has been held that the Statute of Limitations is no bar in equity to the •claim of dower. The principle of the doctrine is stated clearly by the court in the case in New Hampshire. (Barnard v. Edwards, supra.) The view taken by the court was that the statute applied only to actions, entries, and claims, founded upon a previous seisin or possession of the lands demanded, from which ¡seisin or possession the time of limitation may be dated; and that dower cannot have a limitation dated from the seisin of the husband, and that a limitation cannot be dated from the seisin •or possession of the widow, because she cannot have either until dower has been assigned to her. This doctrine was recognized and approved by the Supreme Court of Massachusetts in a case (Parker v. Obear, supra), wherein it was decided that a writ of dower was not barred by the Revised Statutes of that State; and the court say that the limitation being thus dated from the seisin, it would be absurd to extend it to actions in which seisin not being issuable, can never become the subject of evidence on the trial.” (Angelí on Limitations, § 367.)

In a note to the above text appears a quotation from Brook’s Reading upon the statute 32 Hen. VIII., chapter 2, as follows i “ A woman brought a writ of dower, of the seisin of her husband sixty-one years past, the action lieth, because that is not of her own seisin, nor of none of her ancestors nor predecessors, neither is it an action possessory, and it is not prohibited by the statute.”

The first section of the dower act of this State provides that “a widow shall be endowed of the third part of all lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.” Now, if it be held that when she petitions under that act for the assignment of the estate, of which the law endows her, she must show that she, or her predecessor or grantor, was seised or possessed of the estate claimed within five years, we are constrained to ask, how will she do this? To whom will she point as predecessor or grantor of the estate with which the law declares she “shall be endowed?” It cannot be said that her husband was her grantor or predecessor. He neither grants to her, nor can he grant away from her, that dower estate. It is true the husband is the person through or under whom the wife, by virtue of law, claims her dower; but our Statute of Limitation does not contain the terms “through or under whom” the plaintiff claims, as often appears in statutes. If it should be held that the husband is the grantor or predecessor of the wife’s dower estate, then the wife would be compelled to show that he was seised or possessed within five years, or her dower would be lost; and in such case he could convey the seisin and possession, and remain out five years, and if he lived that length of time, the dower would be lost by force of the Statutes of Limitations before it was consummated; notwithstanding the statute declares she shall be endowed of one third of the lands whereof her husband was seised “ at any time during the marriage, unless relinquished in legal form.” If it is held that the husband’s ancestor, grantor, or predecessor is also the grantor or predecessor of the wife’s dower estate, then the very seisin of the husband for five years prior to the consummation of the dower estate would bar her dower, because she would have to point to her husband’s ancestor, grantor, or predecessor as her predecessor, and, of course, they would under that state of facts have been out of possession and seisin for the period of five years. These deductions we think would certainly result from holding that the widow must bring her action for the assignment of dower within the provisions of section 29 of the Code. Upon reason and authority, and the unquestioned meaning of the terms used in-that section, we think it was never intended to apply as a bar or limitation to the widow’s suit for the assignment of dower.

In our investigation of this subject, we have nowhere found any authority questioning the force of the reasoning set forth in the New Hampshire and Massachusetts cases cited supra» In the well sustained opinions, where it has been held, as in Michigan (Proctor v. Bigelow, supra), that the general Statute of Limitation barred the action for assignment of dower, the statute provided that the action must be commenced within the stated period “ after the right to make such entry or bring such action first accruedor as in Ohio (Tuttle v. Wilson, 10 Ohio, 25), where the statute on which the decision was founded provides: “That no person or persons shall hereafter sue, have, or maintain any writ of ejectment, or other action for the recovery of the possession, title, or claim of, to, or for any land, tenement, or other hereditament, but within twenty-one years next after the right of such action or suits shall have accrued.” As-remarked by the court in that case: “ It will be seen that it is not only the action of ejectment which is barred by this statute,, but every other action for the recovery of the possession, title, or claim to any land.” It is readily seen that such statutes, or-statutes of other terms of like import, may fairly be construed to apply as a bar to the action for dower.

It is contended by counsel for respondent that if section 29 is inapplicable to the action for assignment of dower, section 47 of the Code would apply and bar the action in three years from the time the right accrued.

Title 3 of the Compiled Statutes is devoted to the subject of limitation of actions. Chapter 2 of this title prescribes limitations of actions concerning real property. Chapter 3 of said title appears to be intended to apply only to actions concerning other rights of action than those relating to real property; for the first section of chapter 3 provides for “ actions other than those for the recovery of real property as follows,” etc. Section 47 of the same chapter provides as follows: “An action for relief not hereinbefore provided for must be commenced within three years after the cause of action shall have accrued.”

We do not think this section was intended by the legislature to apply to actions concerning real property. In the case of Robinson v. Ware, 94 Mo. 678, wherein the Supreme Court of Missouri completely reverses the construction of the statute as held in Littleton v. Patterson, supra, the court considers the bearing of a clause in the Missouri statute like section 47 of our Code, which the court termed a “catch-all clause.” In one part of the opinion it is said: “We believe such an action (action for dower) would have been held to be barred in the case of Littleton v. Patterson, either by the first section of the Act of 1847, or this general clause of the Act of 1849, had the court been called upon to consider the statute as a whole; but the cause there appears to have accrued before the adoption of the act of 1849. Which of the sections would have been applied is not material at this time in this case.” Farther along in the opinion referring to the “ catch-all clause ” it is said the same reads: “Civil actions, e other than for the recovery of real property/ can only be commenced within the time prescribed in sections which follow. The words just quoted exclude actions for the recovery of real estate, and hence the general clause of section 3229 cannot be held to apply to an action for dower.” Under such contradictory views, we cannot see why the court, in Littleton v. Patterson, would have held the case barred “by the general clause in the act of 1849,” namely, the “ catch-all clause.”

It appears that the only use made of that clause by the court, in the case of Robinson v. Ware, supra, was to draw therefrom what the court deemed an indication of “legislative policy” to place a limitation on all actions; and hence that the same section, which had in Littleton v. Patterson been held not to apply to dower, should be held to apply as a bar thereto. Was not the silence of successive legislatures for twenty-six years, and the failure to give the courts a statute which would clearly place a different limitation on the action for dower, a tacit approval of the construction given in Littleton v. Patterson? Is not that kind of indication of “legislative policy” far more direct and satisfactory than anything suggested in Robinson v. Ware, supra?

There is a limitation on dower, that is, the natural limitation on the life estate. It may be that the legislature is satisfied with that limitation, and it may in its wisdom fix a different limitation thereon. But at present we find no statute barring the right of the widow to prosecute her action for the assignment of dower.

It is contended by counsel for respondent that every civil action is limited to a certain period by our statute, either by a specific provision, or by the general terms of section 47. We do not think that proposition will hold in all cases. For instance, it could be argued with as much force that the action for divorce, on the ground of desertion, or habitual drunkenness, or conviction of an infamous crime, is in all its attributes as much a civil action as is the suit under the statute for assignment of dower.

Both actions are given by statute, and the procedure of the Civil Code is made applicable, except as otherwise provided in the respective acts.. The action for divorce is not specified in the general Statutes of Limitation; and if barred it would be by the sweeping terms of section 47. But we do not think it is generally held by the bench, or profession, that an action for divorce on the ground that one spouse had been convicted of an infamous crime would be barred by section 47, if the complaining spouse should forbear, for three and a half years for instance after the conviction, to proceed for divorce. Although it could not be said that the right to the relief prayed for did not accrue at the time of conviction.

Of course the court of chancery may refuse to entertain a .stale complaint for divorce, for some causes, but that bar is not placed on the general Statute of Limitation.

It is ordered that the judgment of the trial court be reversed at costs of respondent, and remanded for further proceedings.

Blake, C. J., and De Witt, J., concur.