This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
- Limitations and laches. In some states, the statute requires a suit to establish dower rights to be brought within a certain number of years after the husband's death.42 Whether, in the absence of such a statute expressly applicable to dower, the general statute of limitations will apply, the cases are not in unison.43 But though there be no statute of limitations applicable, the widow may, in failing to assert her claim, be guilty of such delay that a court of equity will refuse to give her relief.44
Compare Brown v. Morisey, 126 N. C. 772. 36 S. E. 284; Whitaker v. Greer, 129 Mass. 417; Strawn v. Strawn's Heirs, 50 111. 256.
Under the statute of Merton damages could be recovered against the heir only from the time of demand, provided he chose to plead that he had always been ready to assign dower. Co. Litt. 32b.
As against the alienee of the heir, likewise, damages are to be estimated from the time of the husband's death, unless the statute provides otherwise. 1 Roper, Husb. & Wife, 440; Seaton v. Jamison, 7 Watts (Pa.) 533; Hitchcock v. Harrington, 6 Johns. (N. Y.) 290, 5 Am. Dec. 229. Contra, Newbold v. Ridgeway, 1 Har. (Del.) 55.
39. See 1 Stimson's Am. St. Law, Sec. 3278; Martin v. Martin, 14 N. J. Law, 129; Rannels v. Washington University, 96 Mo. 226 9 S. W. 569; Price v. Price, 54 Hun (N Y.) 349; Munger v. Perkins, 62 Wis. 499, 22 N. W. 511.
40. 4 Kent, Comm. 70; Wood v. Morgan, 56 Ala. 397; Henderson v. Chairas, 35 Fla. 423, 17 So. 574; Anstell v. Swann, 74 Ga. 27?; Chase's Case, 1 Bland (Md.) 206, 17 Am. Dec. 2?7; Turner v. Morri , 27 Miss. 733; Shields v. Hunt, 39 N. J. Eq. 485; Johnson v. Thomas, 2 Paige (N. Y.) 377; Campbell v. Murphy, 55 N. C. 357; Keith v. Trapier, 1 Bailey Eq. (S. C.) 63; Clift v. Clift, 87 Tenn. 17, 9 S. W. 360.
41. Beavers v. Smith, 11 Ala. 32; Roan v. Holmes, 32 Fla. 295, 21 L. R. A. 180. 13 So. 339; Sellman v. Bowen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524; Price v. Hobbs, 47 Md. 359; Chiswell v. Morris, 14 N. J. Eq. 105. Contra, Kendall v. Honey, 5 T. B. Mon. (Ky.) 282; Johnson v. Thomas, 2 Paige (N. Y.) 377.
42. 1 Stimson's Am. St. Law, Sec. 3271. See O'Gara v. Neylon, 161 Mass. 140, 36 N. E. 743; Belfast Inv. Co. v. Curry, 264 Mo. 483, 175 S. W. 201.
The fact that the husband has, for the statutory period of limitations, failed to sue to recover land of which he was once seised during coverture, but which has passed into the adverse possession of another, does not affect the right of the widow to claim dower, she not being bound by his default in this regard.45 Were this not the case, the wife might by reason of the lapse of the statutory period, lose her dower in land conveyed by the husband without her joinder, although unable, during such period, as having a mere possibility or expectancy, to assert any claim of dower.
- Abatement of right of action. Since dower is an estate only for the life of the widow, a suit therefor, so far as concerns the assignment of dower, necessarily abates on her death.46 And as there can be no
43. That the general statutes are applicable, see Livingston v. Cochran, 33 Ark. 294; Steele v. Gellatly, 41 111. 39; Kinsolving v. Pier e, 18 B. Mon. (Ky.) 782; Durham v. Angier, 20 Me. 242; Long v. Kansas City Stock-Yards Co., 107 Mo. 298, 28 Am. St. Rep. 413; Conover v. Wright, 6 N. J. Eq. 613, 47 Am. Dec. 213; Care v. Keller, 77 Pa. St. 487; Lide v. Reynolds, 1 Brev. (S. C.) 76. That the general statutes are inapplicable, see Barksdale v. Garrett. 64 Ala. 280, 38 Am. Rep. 6; Miller v. Pence, 132 111. 151; Burt v. C. W. Cook Sheep Co., 10 Mont. 571; Barnard v. Edwards, 4 N. H. 107, 17 Am. Dec. 403; Simonton v. Houston, 78 N. C. 408; Jones v. Powell, 6 Johns. Ch. (N. Y.) 194.
44. Barksdale v. Garrett, 64 Ala. 2S0, 38 Am. St. Rep. 6; Dan-ley v. Danley, 22 Ark. 263; Gilbert v. Reynolds, 51 111. 513; Ralls v. Hughes, 1 Dana (Ky.) 407; Steiger v. Hillen, 5 Gill & J. (Md.) 121; Wilson v. Willis, 131 Md. 47, 101 Atl. 694.
45. Miller v. Pence, 132 111. 149, 23 N. E. 1030; Lucas v. Whitacre, 121 Iowa, 251, 96 N. W. 776; Williams v. Williams, 89 Ky. 381, 6 L. R. A. 637, 12 S W. 760; Durham v. Angier, 20 Me. 242; Moore v. Frost, 3 N. H. 126; Winters v. De Turk, 123 Pa. St. 359, 7 L. R. A. 658, 19 Atl. 354.
46. Rowe v. Johnson, 19 Me. 146; Atkins v. Yeomans, 6 Mete. (Mass.) 438; Tuck v. Fitts, 18 N. H. 171; Parks v. McClellan, 44 N.
[Sec. 234 recovery of damages at law unless the judgment likewise awards seisin of dower lands, the widow's death defeats such recovery, in the absence of a statutory provision to the contrary;47 but it does not prevent recovery of the rents and profits in equity, provided suit for dower was bought during her life.48
- Judgment or decree. A judgment for the person demanding dower is either for dower alone, or for dower with damages.49 Upon a judgment for the widow, a writ or order is issued directing the sheriff or commissioners to set out her dower, and without this the widow cannot, except by the intervention of a statute, enter on the land.50
Assignment of dower in accordance with the judgment or decree is generally by the sheriff or commissioners, the practice in this regard varying in the different states, but the action of such officials being usually subject to the approval of the court.51 Such assignment must be by metes and bounds, unless this is impracticable.52
J. Law, 552; Miller's Adm'r v. Woodman, 14 Ohio, 518. Compare Robinson v. Godvers, 138 N. Y. 425, 34 N. E. 209.
47. Roan v. Holmes, 32 Fla. 295, 21 L. R. A. 180, 13 So. 339; Turney v. Smith, 14 111. 242; Rowe v. Johnson, 19 Me. 146; Atkins v. Yoemans, 6 Mete. (Mass.) 438; Tuck v. Fitts, 18 N. H. 171. But her death does not have this effect if after judgment, though the case is appealed. Tibbetts v. Langley Mfg. Co., 12 S. C. 465.
48. Pollitt v. Kerr, 49 N. J. Eq. 66; Johnson v. Thomas, 2 Paige (N. Y.) 377; Steiger's Adm'r v. Hillen, 5 Gill & J.
(Md.) 121. In Paul's Ex'rs v. Paul, 36 Pa. St. 270, it was in effect held that her representatives could recover rents and profits, though she did not actually sue for dower during her life, provided she demanded it.
49. Waters v. Gooch, 6 J. J. Marsh. (Ky.) 586; Shirtz v. Shirtz, 5 Watts (Pa.) 255.
50. Co. Litt. 34b; 2 Scribner, Dower (2d Ed.) 105, 176; Hil-dreth v. Thompson, 16 Mass. 191.
51. See 1 Stimson's Am. St. Law, Sec. 3275; 2 Scribner, Dowar, 141. 170; 7 Enc. PI. & Pr. 170, 185, 206.
52. 2 Scribner, Dower, 82, 582; See ante Sec. 233, note 76.
Sec. 235] Estates Arising From Marriage.