
    SUSAN WRIGHT v. ELIAS W. CONOVER.
    The statutes of New Jersey, limiting actions for land, do not apply to dower.
    Susan Wright, widow of Barzillai Wright, late of Trenton, deceased, exhibited her bill on the 9th of July, 1846, against Elias W. Conover, stating that the said Barzillai was, in his lifetime, and during the time he was married to the complainant, seized in fee or in tail of divers freehold estates, situated in the county of Mercer, and that he died on or about March 1st, 1838, leaving the complainant, his widow, him surviving, whereby she became entitled .to her dower in the said freehold premises. That in the lifetime of the said Barzillai, a part of the freehold estates of which he was seized was levied upon by the sheriff of Hunter-don, by virtue of divers executions in his hands against the said Barzillai, and that, on or about November 1st, 1820, the said sheriff sold at public sale a part of the freehold estate of the said Barzillai, consisting of about fifty-five acres, situated in the township of Lawrence, in the county of Mercer, which said part was then and there bought by one Mahlon Milner, and that Milner, afterwards, on or about November 20th, 1820, received a deed therefor from the said sheriff, and entered into the possession thereof. That the title to the said premises has since passed by various conveyances to Elias W. Conover, who now holds the same in fee simple, as the complainant is informed and believes, subject to the right of dower of the complainant therein. That the said tract of land is now in the actual occupancy and possession of one Aaron Tindall, as a tenant, as the complainant is informed and believes, of the said Conover. That the title deeds and evidences and writings relative to the said premises and estate have come into the hands and possession of the said Elias W. Conover. That on or about March 1st, 1846, the complainant caused a written notice to be served on the said Conover to set off or cause to be set off and assigned to the complainant, and let her into the possession and enjoyment of one-third part of the said freehold estate, as and for her dower aforesaid, bat that he refuses or declines so to do, and refuses to produce the title deeds, evidences and writings, or any of them, relative to the said freehold estate; wherefore the complainant, is unable to proceed at law to establish her said demand.
    The bill prays that Conover may answer, &c., and discover and set forth a full and true-description of such freehold estate, with all the circumstances and particulars thereof or relative thereto; and that an account may be taken of the rents and profits of the said freehold estate, which have accrued since the said demand of dower; and that one-third part thereof may be paid to her; and that one-third part of such freehold estate ¡nay he assigned and set off to her for her dower, or other widow’s estate; and that she may be let into the immediate possession and enjoyment thereof, and decreed to hold the same for her life; and that Conover may be decreed to produce all title deeds, evidences and writings relative to the said freehold estate, in order to effectuate the purposes aforesaid.
    To this bill the defendant has pleaded in bar, that the said Barzillai Wright died more than twenty years before the filing of the complainant’s bill, or the serving this defendant with process to appear and answer the same; and that if the complainant ever had any right or title to dower or thirds of and in the said premises, or ever had any cause of action against him, for or concerning any of the matters in the bill mentioned, which he doth in no sort admit, the said right or title, and the said cause of action, did accrue more than twenty years before the filing of the complainant’s bill, or the serving this defendant with process to appear and answer the same; and, therefore, he doth plead the act entitled, “ An act for the limitation of actions,” passed February 7th, 1799, and prays the benefit of the said statute for the limitation of actions.
    A replication was put in to this plea, but afterwards it was agreed between the solicitors, by writing, filed with the clerk, that Barzillai Wright died July 17th, 1823; and that the truth of the plea was, therefore, admitted by the complainant’s solicitor; that the replication be wilhdrawn, without costs, and that the cause proceed to hearing on the bill and plea ; and that if, upon the hearing, the plea be allowed, it be considered as proved, and a final decree made thereon.
    
      C. S. Green, in support of the plea.
    He cited 1 Harrison’s N. J. Rep. 107; 1 Constitutional Rep. of S. C. 112; 3 Dessau. 555.
    
      W. Halsted, contra.
    
    He cited Park. on Dower 311 — 12; 3 Kent’s Com. 70, notes; 1 Swift 85; 4 N. Hamp. Rep. 109; 2 Gill. and John. 468 ; 8 Johns. Rep. 103; 1 Dev. and Bat. 213; 10 Yerger 339; Co. Lit. 115, a; 7 Metcalf’s Rep. —; 9 Ves. 222; 2 Ves., Jr., 122; 2 Bro. Ch. Rep. 620; 1 Cruise’s Dig. 159; Co. Lit. 36, a; 7 Johns. Rep. 247 ; 4 Mass. Rep. 388 ; 9 Ib. 13; 16 Ib. 293; 19 Johns. Rep. 197; 20 Ib. 411; 2 Show. 198; Bull. N. P. 117; Angell on Lim. 381, 379, 404, 415, 452; 2 Allison 72, 74; Gilbert on Tenures 26; Watkins on Descent 100; 2 P. Wms. 703-4; Cro. Jac. 111.
   The Chancellor.

I am of opinion that the claim for dower is not within the spirit of the statute of limitations, nor within its policy, or the evil intended to be remedied by it, and that the legislature never intended to include dower within its provisions, or supposed it was so included.

Dower has a limitation in the nature of things. It is the use of a third part of the lands during the life of the widow only. In a large proportion, perhaps a majority, of the cases, death puts an end to the enjoyment, and to the claim of dower, within'twenty years from the death of the husband. There is no consideration of public policy requiring any other limitation. It is a claim of á peculiar nature, entirely different from claims for debt and from asserted titles to land. The amount of a debt is yearly increasing, and there is a policy in limiting a time within which it should be presumed paid. If one has title to land which another is holding adversely to him, there should be a limitation of time within which he should bring his action for it. The land may become more valuable by improvements put upon it by the person in possession ; and the taking it from him after the lapse of years may inflict a heavily increased loss. But the value- of the right of dower to the widow, and the burden of it to the owner of the land, is becoming less and less every year of her life. The alienee of the husband can put what improvements he pleases on the land: the widow gets dower only according to the value of the land at the time of the alienation.

A purchaser from the husband knows he buys subject to the wife’s inchoate right of* dower, and the widow can recover damages — that is, the value of the dower — only from the time she demands her dower. If she fails to demand her dower for twenty years, the purchaser has been relieved of the burden during that time Does that furnish any reason why he should be relieved from it for the remnant of her life ?

Children, where the father died seized, may, in consideration of the mother’s right of dower, and by arrangement with her, have supported her for twenty years, and may then fail to support her. Is she barred of her right to have her dower set off to her ?

At law, if a dowress dies before her right is established, her personal representatives have no remedy for the mesne profits. The rule is the same in chancery, as against a purchaser from the husband.

Neither the title of the heir-at-law, nor that of the alienee of the husband, is adverse to the title under which the widow claims. They all claim under the title of the husband. The estate of the widow is a continuation of that of her husband, and, upon assignment, she is in by relation, from her husband’s death. 4 Kent’s Com. 62.

The right to dower is a mere right, which can be neither aliened nor sold on execution. The law casts the freehold on the heir, and the widow has no estate in the land until her dower is assigned. 4 Paige 448; 17 John. Rep. 168, 9; 20 Ib. 411.

She has no estate or right of entry in the whole, and none in any particular part until her dower is assigned by metes and bounds, and, when that is done, the estate does not pass by the assignment, but she is in, in intendment of law, of the seizin of her husband. 4 Kent’s Com. 68.

It is said that dower is within the letter of our statute of limitations.

If it were within the letter, yet if it be not withiu the spirit of the statute, it should not be subject to it.

But is it within the letter of our act? Sections 9 and 10 of our act for the limitation of actions, provide that no person having any right or title of entry into any lands, shall make entry therein but within twenty years next after such right or title— L e., right or title of entry — shall accrue, and that every action for lands, real, possessory, or mixed, shall be brought within twenty years next after the right or title thereto — i. e., the right or title of entry — or cause of such action, shall accrue.'

The two sections together, amount to no more than this, that no action for lands founded on a right or title of entry, shall be brought after twenty years, &c. The widow has no right or title of entry into any lands until after the dower is assigned.

The right is a mere inchoate, contingent charge, and it remains contingent after the husband’s death, at least as against a purchaser from the husband. She cannot bring ejectment for it — ejectment is a mixed action for lands, and satisfies that word in our statute — and if she dies before she can compel an assignment, the holder of the lands is relieved, and her personal representatives cannot recover the mesne profits from the husband’s alienee; and, during her life, if she makes no demand of her dower from the husband’s alienee, she cannot recover the value thereof.

The statute of 21 Jac. 1, which enacts that “no person shall make entry upon any lands but within twenty years next after his right or title shall first accrue,” and the statute of New York, which enacts that no action for the recovery of any lands shall be maintained unless the plaintiff, his ancestor, &c., was seized or possessed thereof within twenty years, are as broad in their effect as our statute, and yet are held not to include dower; and so are the statutes of several other states, which are held not to include dower.

Dower is not included because the widow has no right or title of entry until her dower is assigned by metes and bounds.

By a late statute in New York, dower has been subjected to limitation. How is it done? It is by requiring dower to be demanded'within twenty years from the death of the husband. So by a late statute in England, 3 and 4 William IV., ch. 27, dower has been limited. It is done by providing that no suit for dower shall be brought within twenty years from the death of the husband. This shows that dower is not within statutes limiting actions for lands founded on right of entry or title, and in which the doctrine of adverse possession is involved.

If our legislature shall be moved to enact such a limitation of the suit or demand for dower, they will have an opportunity of deciding whether dower is within the policy of statutes of limitation and whether there is any necessity or propriety of fixing a limitation.

Dower is highly favored. It has been well said that dower is not only a legal right, but a moral right to be provided for and have a maintenance and sustenance out of the husband’s estate. That the widow is in the care of the law, and a favorite of the law. 1 Story’s Eq., § 629.

Our legislature have provided that where the husband did not die seized, as where he aliened in his lifetime, which is the case here, she may sue for and recover her dower, with damages, that is to say, the value of her dower, from the time she demands her dower. There is no limitation as to the time of the demand. She may demand it at any time during her life. This bill goes for the value of the dower since the demand of dower, and for a third of the land to be now set off, and the plea is to the whole bill. The demand of dower was not made until March, 1846. Ho action for the value of the dower accrued until then, and then only for the value after that time. By what rule can time, elapsed before an .action accrues, be a bar to it? And if after demand she is entitled to the value of the dower from that time, which is equivalent to the dower itself, why is she not entitled to the dower itself from that time ? Can she be confined to an action for the damages or value?

This shows the incongruity which would arise from construing our statutes limiting actions for lands to apply to dower.

Plea overruled.

Reversed, 2 Hal. Ch. 613.  