
    Jackson, ex dem. Bunt and others, against Ransom.
    NEWYORK,
    Oct. 1813.
    the relative to ti-in Onondaga county, (sess. 20. c. 51.) as to the time of filing a dissent to the award of commissioners, &c. cannot be set up in an action against such of the lessors in ejectment as were feme coverts at the time the award was made ; and bringing the action during the coverture is no waiver of the saving clause in the statute.
    But the filing a dissent being by the act a condition precedent to a right of recovery, an action; cannot be maintained before a dissent has been filed ; but the wife by herself, or by her husband ip. his name, may file her dissent, and bring her action with her husband, and recover during cover* ture $ or she may. -within 3 yerre after the death of husband, file her dissent asid bring an action*
    THIS was an action of ejectment brought to recover lot No. 84. in the township of Camillus. The cause was tried at the Onondaga circuit, in Jims, Í313.
    
      The plaintiff read in evidence an exemplification of á patent} dated the 8th July, 1790, for the lot in question, to Lodowick Bunt, a soldier in the late war.
    It was proved that Lodowick Bunt died in Blarch, 1785, without issue, leaving his father, Matthias Bunt, who died about two years afterwards, leaving three sons and four daughters, lessors of the plaintiff, his heirs at law. The daughters were all married more than 15 years ago, and are now living, and their husbands are also lessors of the plaintiff.
    The defendant gave in evidence the award of the Onondaga' commissioners, dated the 20th August, 1800,-by which the lot. In question was awarded to Elias Kane. It did not appear that any dissent had been filed by the femes coverts.
    
    The judge charged the jury that the award of the commissioners was a bar to the plaintiff’s recovery of any part of the premises in question; and the jury accordingly found a verdict for the defendant. A motion was made to set aside the verdict, and for a new trial.
    
      Gold, for the plaintiff.
    The proviso in the 8th section of the act relative, to titles to lands in Onondaga county, (sess. 20. c. 51.) declares the act should not be construed " to the prejudice of any person, under the age of 21 years, or feme covert, ¿¡re. if such infant, feme covert, #c. shall, within three years next after coming of age, or discovert, Sec. make their dissent and bring their suit,” See.
    In the statute of 4 Hen. Vil. c. 24. relative to fines, is a similar proviso relative to infants, that they may make their entry in 5 years after coming of full age; and it has been held, under that proviso, that tile infant might, if he pleased, enter, or have his action, before he arrived at full age, and avoid the fine. So in Chandler v. Villette,
       under a similar clause in the statute of limitations ^’le I* c" I®’ ^ was keld ^at an infant might bring an action of assumpsit, at any time within age, though the 6 years had. elapsed, without waiving the benefit of the saving clause.
    It may, perhaps, be said that the husband having a right to the land during life or coverture, might have filed a dissent and brought an action of ejectment, without joining the wife. True, it is said in some of the books, that the husband may alone make a lease, or bring ejectment; and that the wiie may or may not be Joined, in order to try the title to her lands ; but regularly, the wife ought to be joined, Under our laws a feme, covert may alienate her lands for her own support; but if the defence now set up is to prevail, she would be wholly prevented from exercising this right over her estate; and so far, at least, will her right be prejudiced.
    
      Cady, contra.
    The counsel for the plaintiff has argued as if 1 _ „ the jeme coven was the principal person interested m the action; but she is not a necessary party to the suit, and it is the right of the baron, or husband, which is tried. It is true, there is some old rule to be found requiring the wife to be joined; but that, like many other rules of law, has been changed. The husband may lease Ms wife’s land, and is, therefore, competent to demise so as to bring an ejectment. If the name of the wife, then, is struck out as unnecessary, all the difficulty suggested is removed. The words of the 3d section of the act are general. It declares that the award of the commissioners shall, after two years from the making thereof, be “ binding and conclusive against all persons, except such as, conceiving themselves aggrieved, shall within two years file their dissent, and give notice thereof,” See.
    This is an attempt to bring the husband, who has an absolute control of the land during life, within the proviso. The wife, during the coverture, has no rights which can be prejudiced. They are suspended. It is said that a feme covert may assert her right during coverture, from analogy to. the case of an infant, who, it is said, may bring his action before he comes of age. But there is no analogy in the two cases. Her estate belongs to the husband during life or coverture, not to the wife, who has no estate during the life of her husband. But in the case of infants and persons non compos, they have their estates during infancy and insanity, and may prosecute by their guardians.
    There are cases in which it is said, that the husband has not only an absolute control over the wife’s estate, and may alienate it during his life ; but that the wife may, byhis acts, absolutely lose her estate. As if a feme copyholder marries, and the husband does not pay the rent, or commits waste, it is a forfeiture of the estate which will bind the wife after his death.  And in some cases the laches of the husband may disinherit the wife forever. 
    
    It cannot be said that the wife, during the coverture, is prejudiced. -
    
      
      Gold, in reply,
    observed, that considering the tribunal erected by the statute to decide on these disputed titles, it was fortunate that the proviso was inserted; and it ought to be liberally construed. But on the construction contended for by the defendant’s counsel, an estate of inheritance of a feme covert would be changed from a fee-simp!e™ to a conditional fee; or be made to depend on the contingency of her surviving her husband, there being no heirs mentioned in the proviso. Nemo est hceres viventis; and if she dies before her husband, no person could claim it, as no dissent had been entered by the husband, or by any person in her behalf. Persons in reversion and remainder, however remote, are bound. If, then, her estate in fee, subject to the life estate of her husband, can be lost, by his neglect, on the contingency of her dying first, she must be considered as prejudiced. But she has, he contended, not only until her discoverture to assert her rights, but her rights shall not, under the provision of the statute, be prejudiced in the mean time.
    
      
       2 Saund. 121. b. n. Plowd. 366. a. 1 Lev. 215. 2 Inst. 519.
    
    
      
       2 Inst. 519.
    
    
      
      
         Runn. on Eject. 95. 226. Chitty's Pl. 20. Cro. Jac. 399.
    
    
      
      
        Bac. Abr. Baron and Feme, (11.) 4 Vin. Abr. 77 Baron and Feme, pl. 15.
    
    
      
      
        Cro. Eliz. 149. Cro. Car. 7.
      
    
    
      
      
         Co. Litt. 246.
      
    
   Per Curiam.

If a party whose disability is saved by any statute of limitations, chooses to bring a suit pending the disability, instead of waiting for the period allowed by law after disability removed, he does not thereby waive the benefit of the saving clause in the statute. Thus it was decided in Chandler v. Villette, (2 Saund. 120.) that if an infant brought an action of assumpsit during his infancy, but after six years from the time the cause of action arose, and the defendant pleaded the statute of limitations, it would be a good replication, that when the cause of action arose, and when the suit was brought, the plaintiff was, and still is, an infant. The plaintiff may sue at any time within age, although the six years are elapsed. Upon the principle of that decision, the limitation in the# act relative to the military bounty lands, as to the time of bringing the action, cannot be set up against such of the lessors of the plaintiff as ar e femes coverts, and were such when the award was made; their reply would be the same as in the other case, that they were, and still are,/ernes coverts; and the statute provides (sess. 20 c. 51.) “ that nothing in the act contained, should extend or be construed to the prejudice of any person • under the age of twenty-one years, or feme covert, See. ; if such person shall, within three years after coming to the age of twenty-one years, becoming discovert, Sec. make their dissent, and bring . their suit, and prosecute the same to effect as aforesaid.”

But the difficulty in the way of the recovery is, that here no dissent has been filed, either by the femes coverts or by their husbands.

The filing of the dissent, within the period of limitation, seems to be requisite, by the act, to entitle the party to recover. It was so understood by the court, in the case of Jackson, ex dem. Cornelius, v. M‘Kee. (8 Johns. Rep. 429.) The party against whom the award was made, was, by the terms of the act, to file his dissent and bring his suit within the period prescribed. The filing of the dissent is a condition precedent to the right of recovery. It was a necessary act, because the statute required it; and if a feme covert will bring the ejectment during her disability, she must comply with the condition upon which the action was granted; she must previously put her dissent upon record. This she may still do and recommence her suit. The plaintiff ought, therefore, to have been nonsuited at the trial, and the award was not, in any other sense, a bar to the action. The omission of the husband to file a dissent within the two years, was not a default affecting the wife, so as to bar her right of action, either during the coverture or subsequent to it. The default of the husband cannot work any prejudice to the wife’s interest 5 for the act declares, that nothing in it should be construed to the prejudice of persons under disability. But upon the case as stated, the plaintiff was not entitled to recover, and the wife is necessarily turned round to a new action; and to entitle her to sustain it, she must, either by herself, or by her husband in her name and behalf, previously cause her dissent to the award to be duly entered.

The motion on the part of the plaintiff to set aside the verdict is denied.

Motion denied.  