
    
      E. R. Wilson et ux. et al. vs. H. McLenaghan.
    
    1. Where the husband of the dowress died in 1823, and the executor of the testator, immediately upon his death, took possession of the real estate, and held until 1827, when the land was sold by the sheriff, by virtue-of an execution obtained against the executor, and was purchased by H., and held continuously by him, (including the years from the death of the testator to the sheriff’s sale,) for more than twenty years ; it was held to be a good bar of dower, under the statute' of' limitations.
    2. Where one occupying land, leaves it for a short time, “ animo revertandi,” his pos. session continues during such occasional absence; andif a tenant quits the premises, the landlord is to be regarded as still in posscssion,‘if'he takes possession, either in “ pro. pria persona,” or otherwise, within a reasonable-time'. ‘ Possession is matter of fact, and therefore of evidence.
    3. In the Court of Equity, the assignee of a right of dower may state the assignment and sue in his own name, as assignee; but the right to be perfected, is still the as. signor’s right; and being a legal and not an equitable one, is subject to all the incidents which would at law attach to it; and among other things to the legal rule for applying the statute. The case is as though the dowress herself wore the complainant in the bill.
    4. The statute of limitations shall not, (by Statute 1824, ch. 6. sec. 5,) hereafter be construed to defeat the right in the lifetime of the ancestor, before the accrual of the right of the minor.
    
      Heard before Dunkin, Chancellor.
    Marion,
    
      January Term, 1840.
    Lewis Harrell, jr., who died in 1823, was possessed of the lands hereinafter mentioned, and some other real estate, and several negroes. He left a widow, Milissa Harrell, and two children, who are the complainants in this suit. On the 9th of May, 1827, the sheriff of Marion district levied on the land in dispute, as the property of Lewis Harrell, jr., by virtue of an execution against William Lat-ta, executor of Lewis Harrell, jr... The land was sold on the 2d of July, 1827, and purchased by Richard Howard, under whom the defendant claims title.
    The bill is filed for dower and arrears of dower, in the premises last mentioned. The right of the complainants is founded on a deed from their mother, Milissa Harrell, dated 15th February, 1826, by which, in consideration of $2,000, secured to be paid to her by William Latta, executor of Lewis Harrell, she bargains, sells and releases in fee, to Sarah Ann E. Harrell and Lems A. Harrell, (the complainants,) all that piece or tract of land, containing 2500 acres, and with a general covenant of warranty. Mrs. Harrell is still alive. The complainants claim as grantees or assignees or purchasers from Mrs. Harrell, under thi» deed.
    On the death of Lewis Harrell, in 1823, his real estate vested in his widow and children, according to the provisions of the statute of 1791. His widow was at liberty to renounce her claims under the statute and demand her dower, but she must necessarily elect. If her dower is set off to, and accepted by her, she could not afterwards resort to her rights under the statute. So if she took her thirds, she could not claim dower. The executor was in possession of the real estate of the testator, for two or three years after his death. The complainants’s witness, (Dove,) states, that Mrs. Harrell was held to bail by Latta, ex’or. of Harrell, in 1826, for some negroes of Harrell’s estate, which it was supposed she had carried off; and that he refused to release her until she executed the deed of that date, and this deed purports to pass a fee simple interest. Three years had elapsed since the death of her husband, and no claim of dower had been preferred under the Act of 1791. She had an absolute estate in one third of the realty: she executes a deed, purporting to pass an absolute interest; but not purporting to pass, or assign, or release, to the claimants, any claim of dower. Under these circumstances, would hot the Court be warranted in presuming, that within a reasonable time after her husband’s death, she had elected to take under the statute ? Can the Court presume that this deed is evidence of her election to claim dower, and that she thereby assigned to the complainants her right of dower'? (2d Story Ecp 357-359.) If any subsequent events should yet render it expedient for the widow to claim her thirds, under the statute, is this deed any proof that she has elected to resort to her common law right, and has thereby waived her claim under the statute?
    But whatever may be the rights of the complainants, under the deed of Mrs. Harrell, it appears to the Court that they have adequate remedies in the Court of law, which is also the appropriate tribunal for the determination of the issues tendered by the pleadings. It is ordered and decreed that the bill be dismissed.
    From this decree, the complainants appeal, and move to reverse the decree of Chancellor Dunkin, on the following grounds:
    
      1. That it was clearly proven that Melissa Harrell was entitled to dower in the premises mentioned in the hill.
    2. That the said Melissa Harrell had aliened and transferred her right of dower, in the said premises, in a legal and sufficient form.
   Curia, per Johnston, Chancellor.

The Court deems it unnecessary to examine the grounds upon which the Chancellor has put the decree, (with respect to which there might be a diversity of opinion among us,) conceiving that the statute of limitations, which was pleaded and relied on upon the trial, is sufficient, of itself, to defeat the bill. By the evidence, it appears that the husband of the dowress died in 1823 ; that his executor, thereupon, took possession, and held till 1827, when the land was sold by the sheriff to Howard; that Howard, or his tenants, had continued possession from his purchase till December, 1830, when the defendant came in, either by purchase from Howard, or in virtue of his wife’s inheritance from Howard, (the evidence is not explicit on this point,) and held until the filing of the bill. In stating that Howard, or his tenants, held continued possession from the time of his purchase until December, 1830, I am not unmindful of the evidence that Inglesby, one of his tenants, yielded up his possession to Howard in December, 1829, and that Howard, himself did not actually occupy the premises until the following March. But even if no other tenant had been put in for the intermediate time, it is not conceived that Howard’s possession would have been broken. Where the occupant of land leaves it for a time, animo revertandi, his possession continues during such occasional absence; and so, I apprehend, if a tenant quits the premises, the landlord is to be regarded as still in possession, if by taking possession within a reasonable time, or putting in another tenant as soon as one can be procured, he gives evidence that he does not intend to abandon the land. Here the tenant went out when the crop was gathered, and the landlord went in at that season of the next year when planting operations usually begin. Possession is matter of fact, and therefore of evidence; and here was no greater evidence of abandoning possession, than would exist where a planter withdraws his hands from one plantation to another, during the winter, and returns them in the spring; a thing that often occurs, without the slightest suspicion that the possession has been relinquished. But, in fact, it appears by the evidence that, although Ingleshy did quit in December, Collins entered in January, and held for Howard until March, when he took possession in person. If we are at liberty to join the possessions of the executor of Howard, and of the defendant, which were all in the same right and. continuous, and regard the bill in the same light as if it had been brought by the dowress herself, her right is certainly barred by the statute of limitations.

Are we at liberty to unite the possessions 'I If the defendant succeeded to Howard by inheritance, the possessions of these two may, according to Williams vs. McAlily, (1 Chev. Rep. 200,) be joined together, even if Howard’s possession was a mere trespass, and he had no title; neither of which is true. These two possessions make up a period of more than 20 years before bill filed, and therefore constitute a bar.

But if the defendant came in as purchaser from Howard, there would seem to be some difficulty in annexing his possession to that of his grantee. It appears to have been held at law, in the recent case of King vs. Smith, (Rice’s Rep. 10,) that a defendant cannot avail himself of two or more incomplete statutary possessions ; and that he is not aided by the fact, that the trespassers have successively conveyed to each other. The ground of decision seems to have been, that a trespasser, who has not yet acquired title by his possession, has no title to convey; and that, as his trespass is not the subject of a legal assignment, his grantee takes nothing by his deed; and, therefore, from the time of his entry, stands as a mere trespasser on his own account. We are not to question this decision. But it is conceived that the principle of the decision is not applicable to a case of dower like the present. It is conceded, because it has been so decided, that trespasses cannot be united for the purpose of making out a title. But here the object of coupling the possessions is not to invest the defendant with a title. The necessary concession of the dowress is, that her’s is the title of her husband. Neither is his possession, nor that of Howard, nor of Harrell’s executor, to be regarded in the light of trespasses. There was nothing tortious in them. They were all'lawful occupations, under one and the same title, the perfectness of which the dowress cannot question.; and being justified by that title, there is no reason why Vtlie benefits of the possession should not accompany the title as it passed down to the defendant. This view authorizes the joinder, not only of Howard’s, but of the executor’s possession, to the defendant’s, and gives him an uninterrupted possession from 1823. The identity of title'.in the occupants gives unity to all the possessions under;it,' and the case stands as if one person had held for the-whole time. During the whole time given to the dowress for asserting her right, there was constantly in possession'á succession of persons, not independent of each other, but united by a perfect title, against whom she might have made her claim. Her right was a chose, and not an outstanding independent title, and was so connected with the title of her husband, that she was not at liberty to regard as strangers to each other, and as mere trespassers, those who held successively under that title; and not having asserted, her right against them during the time given her, having full opportunity to do so, she must be barred. It may be objected that the dow-ress was not barred when she conveyed; and the alienees being infants, one of them bom in 1816, and the other in 1823, are shielded from the operation of the statute. The right of dower assigned her was-a mere chose, not assignable at law; and upon such an assignment, the suit at law must be brought in the name of the dowress. The Court could not take notice of the assignment, nor, of course, that it was made to infants; but must apply the statute precisely as if the dowress was the real, as well as the nominal, claimant. In this Court, the assignee may state the assignment and sue in his own name, as assignee. But the right to be perfected is still the assignor’s right, and being a legal and not an equitable one, is subject, of course, to all the incidents which would at law attach to it; and among other things to the legal rule for applying the statute. The case is then as if the dowress were herself the plaintiff in this suit. But if this'were otherwise, it is not perceived that the result could be altered. The possession of the executor of Harrell gave currency to the statute before the dowress conveyed to the infant plaintiffs, in 1826. Independently of the Act of 1824, there seems to he no doubt that when the statute begins to run, it will not be arrested by a supervening disability. Indeed, it was the fact that this doctrine was settled, which gave rise to the Act referred to. The question then is, how far has that Act altered the pre-existing law ? It declares, (Stat. 1824, chap, 6, sec. 5,) that “ the statute of limitations shall not hereafter be construed to defeat the rights of minors, where the statute has not barred the right in the life-time of the ancestor, before the accrual of the right of the minor.” From the phraseology here employed, the rights intended to be protected are, obviously, rights involving the relation of ancestor and descendant, which have terminated in the one by the cessation of his life, and have passed from him, or accrued to the other. They include rights inherited. They may, perhaps, (though that is questionable,) by an enlarged construction, be extended to testamentary rights. But how can this enactment be made to reach a right like dower, which ceases with the “ life-time” of the “ ancestor,” and cannot accrue to the minor descendant, on the anees ’ tor’s death 1 The Legislature may well have intended to secure infants in those interests which have accrued to them in consequence of the death of their parents; where the act of God has at once deprived the parent of the means of vindicating his rights, and transmitted them to his helpless and unprotected children. Such a case might call for legislative compassion. But it would be altogether ■unwarrantable to suppose that the guardians of the public interests intended to put it in the power of any one, by the mere contrivance of making a deed or assignment to infants, to avert the operation of the “statute of repose,” and capriciously, and without necessity, entail upon his opponent a responsibility, the end of twhich no one can foresee.

Dargan for the motion,

Blakeney, contra.

It is ordered that the appeal be dismissed.

J. JOHNSTON.

We concur.

David Johnson, Wm. Harper. Benjamin F. Dtjnkin.  