
    Cowan vs. Lindsay.
    (1.) Power. (2.) Evidence. (3.) Statute of Limitations.
    
    1. One entitled to dower inlands adversely occupied may sue therefor witli-out demand previously made, tiut is not entitled to damages for the withholding of the possession before suit commenced.
    2. After seven years have elapsed without intelligence of one who has absented himself from his family, the presumption of life ceases; and if no other evidence is introduced on that point, the court should proceed on the presumption of his death, without submitting the question to the iury.
    
      3. Possession under a sheriff’s deed purporting to convey merely the interest which the judgment debtor had on a certain day, is not adverse to the dower right of one who was wife of such debtor before that day; and the statute of limitations does not run against her in such a case.
    APPEAL from tbe Circuit Court for Winnebago County.
    This is an action to recover a dower interest in certain real estate. No formal demand that such dower be assigned was made before the action was commenced. The plaintiff claims as the widow of one Frederick Preston. The evidence is that she intermarried with Preston, October 9th, 1847, at Delavan, in this state, and resided with him at Oshkosh until the April following, when Preston took her to the residence of her father in Walworth county, and left her there under the pretence that he was going to Milwaukee to buy a stock of goods. She never saw him or received any communication from him after that time. The plaintiff’s father received a letter from Preston written about two weeks after he left, dated at Iowa City, stating that he was on the way "to Mexico, and enclosing certain promissory notes owned by him, to be collected and the proceeds to be applied to the support of the plaintiff. It also appears that there was a rumor a year or two after Preston left, that he went from Wisconsin to Indiana, where he married another woman and lived with her a few months, when he left her and was never again heard of, except that there was a rumor that he died in the Auburn state prison in 1850 or 1851. But these were mere rumors, not shown to rest upon any tangible foundation. Preston was probably between forty and forty-five years of age when he married the plaintiff. This action was commenced December 29th, 1870.
    The defendant claims the land in question by virtue of a sheriff’s deed thereof, executed pursuant to a sale upon an execution against Preston. Such execution was issued upon a judgment duly recovered in the circuit court for Winnebago county by the defendant against Preston, April lB.th, 1849. The sheriff’s deed bears date October 2d,'1851, and the defendant bas been in tbe actual possession of tbe land described in it, claiming to bold tbe whole thereof by virtue of such deed, exclusive of any other right, ever since tbe date of tbe deed.
    Tbe sheriff’s deed is not in tbe bill of exceptions, but tbe statements contained in tbe bill, and tbe answer of tbe defendant are to tbe effect that tbe sheriff sold on tbe execution, to tbe defendant, “all tbe title which tbe said Frederick Preston bad in said premises on tbe 13th day of April, 1849, which then was in fee simple,” that tbe usual certificate of sale was given, and that tbe sheriff’s deed purports on its face to have been executed in pursuance of such sale and certificate, and is in tbe usual form.
    Tbe court was requested by tbe defendant to submit tbe question of fact to tbe jury as to whether Preston was dead or alive. This request was denied. Tbe court also refused to give tbe following instruction: “If you find that for all tbe time since tbe year 1857, tbe defendant has been in possession of this land claiming title to tbe same in fee, exclusive of any other right, founding such claim upon tbe sheriff’s deed introduced in evidence in this case, and that Frederick Preston died before 1857, then your verdict should be for tbe defendant.”
    It should be stated that tbe defendant set up in bis answer tbe statute of limitations as a defense, and that be proved an actual possession thereof since before 1857, of tbe character described in sec. 7, cb. 138, R. S. (Tayl. Sts., 1623, § 7.)
    Tbe court instructed tbe jury that tbe plaintiff was entitled to recover, and she bad a verdict, upon which judgment was afterwards duly entered, for tbe recovery of her dower interest in tbe lands in question. Tbe defendant appeals.
    
      Moses Hooper, for appellant
    
      S. U Pinney, of counsel for respondent.
   LyON, J.

We think that tbe bringing of tbe action is a sufficient demand of her dower by tbe plaintiff, and that tbe right to maintain tbe action does not depend upon a previous demand therefor. The only effect of the want of such previous demand is to relieve the defendant from the liability to pay damages for withholding such dower interest, up to the time when the action was commenced. Tayl. Sts., 1161, § 25.

It is undisputed that the plaintiff was lawfully married to Preston, that Preston was seized of the lands in question, in fee simple, during the coverture, and that the plaintiff has never released her dower interest therein. If, therefore, Preston died before this action was brought, the plaintiff is entitled to recover such dower interest unless she is barred by the statute of limitations.

Does the evidence demonstrate that Preston is' dead, so clearly or conclusively that the court was justified in tailing that question from the jury ? This is the first question to be determined.

The-rule of law applicable to this question, and by which it must be decided, is thus stated by Professor Greenleaf in his treatise on the law of evidence, in vol. 1, § 41: “ Where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.” Although there are some dicta, and, perhaps, some adjudications to the contrary to be found in the boots, yet, the rule as above stated is too firmly settled to be now disturbed. Many of the cases which hold this rule are cited in the notes of the above section in 1 Grreenl. Ev.

In this case the evidence is conclusive that Preston had been absent from his home or place of residence more than twenty-one years before the action was commenced, and that there had been no intelligence respecting him for about twenty years. This was prima facie evidence that he was dead, and cast the burden of proof upon the defendant to show that he was living. The defendant failed to introduce any testimony tending to prove that fact. Hence, it became a verity in tbe case that Preston was dead, and tbe court properly so beld. Had there been any testimony tending to sbow Preston living within tbe seven years next before tbe action was commenced, the question as to whether be was living or dead would have been a proper one for tbe jury, but in tbe absence of such testimony there was nothing for tbe jury to pass upon.

Is the action barred by the statute of limitations? This question must be answered in the negative. Tbe learned counsel for the defendant claims that because the defendant has had the requisite possession of the lands described in the complaint for more than ten years since the death of Preston, or since the time when it is to be presumed that be was dead, claiming title thereto exclusive of any other right, by virtue of the sheriff’s deed, such possession is adverse to the plaintiff, and her action is barred by the statute. Tayl. Sts., 1622-3, §§ 6 and 10. It was beld in the recent case of McEvoy v. Lloyd, 29 Wis., that the statute could not be successfully invoked to protect the person in possession, unless the premises claimed were included in the written instrument or judgment upon which the occupant founds his claim. That case is decisive of this question. Tbe sheriff’s deed only purports to convey the interest in the premises which Preston, the judgment debtor, had on a certain day. It does not include the plaintiff’s dower interest, and hence cannot be made the hasis of an adverse bolding of her dower interest in the premises, so as to bar her right of action to recover the same after the lapse of ten years, by virtue of the statute above mentioned.

These views render it unnecessary to consider whether tbe statutes of limitation would have run against tbe plaintiff’s claim for dower bad tbe conveyance under which tbe defendant claims, by its terms, included such dower interest. Tbe questions which we have considered and determined are controlling ones in tbe case, and we deem it quite unnecessary to pass upon some points of minor importance which were discussed some-wltat in the argument, any further than to say that we find nothing in the case which will justify this court in disturbing the judgment of the circuit court.

By the Court. — Judgment affirmed  