
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1813.
    Mary A. Ramsay v. Abraham G. Dozier.
    The statute of limitations runs against dower;
    Motion for a new trial. Action to recover dower in Abbeville district, tried before Smith, J., 1811.
    Defendant pleaded the statute of limitations. Marriage and sei-zin were admitted. The demandant admitted that the defendant had been in the peaceable possession of the land in question, under a purchase made before the death of Judge Ramsay, demandant’s husband, until the summons in dower was sued out, being upwards of five years. The Circuit Court held that the act of limitations was not pleadable in bar to a claim of dower. (Quere. The plea should háve been' demurred to, if this objection was meant to be taken.) Verdict for the plaintiff.
    Argued 24th of April, 1813,
    by Creswell, in support of the motion, and by Goodwin, contra.
    
    Absent, Judge Grimke.'
    For the defendant, it was insisted that the A. A. 1712, P. L. 101, is express, that any right or title to lands, tenements, &c., which shall descend or come to any person, shall be prosecuted within five years after such right or title shall accrue, else such right shall be barred, except as to persons under disabilities, &c. In this case the right to dower accrued upon the death of the demandant’s husband, five years and upwards anterior to the action commenced. The limitation act is pleadable to a claim of dower, by the English law. Bac. Abr. title Dower. Letter D. and letter F.
    For the demandant, it was argued that the limitation act could not be construed so as to relate to a claim of dower, which is not a claim founded on a paper title, or a descent, but arises out of the husband’s estate, as a temporary interest or provision for the widow, &c.
   Nott, J.

The question is, whether the statute of limitations will bar dower. The words of our act are, “ If any person to whom any right or title to lands, tenements or hereditaments shall descend or come, do not prosecute the same within five years after such right or title accrued, then he, she or they, shall be forever barred to recover the same.” These words embrace a right to dower, as well as any other right to lands or hereditaments. Mrs. Ramsay’s right accrued at her husband’s death, and the statute then began to run. It is argued that she is a joint tenant with the defendant, but this is not correct; to constitute a joint tenancy, there must be an unity of interest, title, time and possession, all of which are wanting here. In the case of 'Davidson v. Roach, decided in this court, it was determined that a widow could not enter on the land, until her dower was assigned ; but this could not be, if she is to be considered a joint tenant.

Brevard, J.

It is true, dower is favored in law, and the act of limitations being in restraint of the common law, is to be construed strictly : but it is equally true, that the act of limitations, in this State, plainly and certainly limits the right of action to recover the^ possession of lands, to five years after the time when the right of the party accrued, descended, or came ; and declares that all claim to lands shall be by action, or suit at law, in the Court of Common Pleas. In the case of Elizabeth Lide v. Edward Reynolds, decided in Columbia, in 1802, it was determined, that the statute of limitations may be a bar to dower. The late Judge Wiids, then at (he bar, was retained for one of the parties, and took considerable pains to investigate the subject: the result of his researches was a settled opinion, that the plea was certainly good. Except Plow. 873, the English authorities are all in support of the position. 2 Co. 93. 10 Co. 49, 99. 3 Inst. 216. Hol. 265. See, particularly, Dyer, 224, a. Dampert and uxor v. Wright. Dyer refers to Hil. 4 Hen. 8, and says, such bar was pleaded, and held for a good plea. In Connecticut, however, it seems it has been otherwise adjudged. 1 Swift’s Sys. 256.

CoicocK and Bat, Js., concurred. Smith, J., dissented.  