
    MARY BERRIEN v. ELIAS CONOVER.
    In Dower.
    The statute of limitations applies to actions of Dower.
    This was an action of dower unde nihil habet.
    
    Tiie question came before the Court, upon a demurrer to the second of the following pleas.
    Mary Berrien v. Elias Conover.
    Yew Jersey Supreme Court. In Dower,
    For her reasonable dower of one dwelling house, one barn, one cow house, one stable, one garden, one orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land and forty acres of woodland, situate in the township of Franklin, in the county of Somerset.
    To the Count in dower, filed in this cause, on the part of the plaintiff; the defendant, by James S. Green, Esq., his attorney, appeared and pleaded, first, that the said Mary ought not to have her dower of &c. as the reasonable dower of the said Mary, of the endowment of John Berrien, heretofore her husband, because he says, that the said John Berrien, heretofore her husband, was not, either on the day he married the said Mary Berrien, or ever after, seized of such an estate of and in the said premises, with the appurtenances aforesaid, whereof &c. that he could endow the said Mary Berrien, thereof, and of this, he puts himself upon the country; &e.
    And for further plea in this behalf, the said Elias Conover by leave of the Court, here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says, that the said Mary Berrien ought not to have or maintain her aforesaid action thereof against him, because he says, that the right and title of the said Mary Berrien, if any, to the said dwelling house, barn, cow house, stable, garden, orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land, forty acres of woodland, with the appurtenances, and her cause of action, if any, did not accrue within twenty years, next before the commencement and institution of this action against him, the said Elias Conover, in this behalf, in manner and form, as the said Mary Berrien has counted against him, and this he is ready to verify, wherefore he prays judgment, if the said Mary Berrien ought to have or maintain her aforesaid action thereof, against him.
    And the said Mary, as to the plea of the said Elias, by him secondly above pleaded, in bar, says, that that plea and the matter in the same contained, are not sufficient in law, to bar her, the said Mary, from having her dower of the said dwelling house, barn, cow house, stable, garden, orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land, forty acres of woodland with the appurtenances. And that she hath no necessity, neither is bound by the law of the land, to answer to the said plea, in manner and form aforesaid, above pleaded. And this she, the said Mary, is ready to verify. Wherefore, for want of a sufficient answer in this behalf, the said Mary prays judgment, and her dower of the said dwelling house, barn, cow house, stable, garden, orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land, forty acres of woodland with the appurtenances, to be adjudged to her, &c.
    To this demurrer, the defendant has joined in demurrer, and the question is, whether the second plea of the defendant, is good or bad.
   The opinion of the Court, was delivered by

Rybksoy, J.

This cause comes before the Court, on a demurrer to a plea of the statute of limitations. By the statute, Rev. L. 411 See. 10 it is enacted, that every real, possessory, ancestral, mixed, or other action, for any lands, tenements, or hereditaments, shall be brought or instituted within twenty years next after the right or title thereto, or cause of such action shall accrue, and not after.” This statute is pleaded in bar of the action, and the demurrer brings in question the sufficiency of the bar. The language is too plain and explicit, as it appears to me, to admit of an argument, or serious doubt. It not only includes mixed actions, of which dower is one, but all othet' actions for the recovery of lands, tenements, or hereditaments.

That no precedent of such plea, is to be found in English books, presents an argument of no force, for the plain reason, that no such statute exists in Great Britain. The English statutes on a kindred subject, may be found in 3d Cruises Digest, Tit. 31, Ch. 2 commencing in page 538. See also, 4 Kent’s Com. 67 — 70. But even in England, such a bar has been more recently proposed. But whether the proposition has ever become a law, I am unable to say. In Sew York and South Carolina, it appears, time forms a bar to the widow’s claim of dower. Thus it appears, we are not alone in thinking the widow’s claim should fail of a remedy, after a reasonable period hath intervened.

The counsel who argued this cause for the demandant, suggested, that there was a privity between the widow and the heir, sufficient to prevent any adverse possession being set up against her. But it is altogether a mistake. The possession of the widow, is the possession of the heir. She holds of him, in contemplation of law. But his possession is not hers. 1 Cruise’s Dig. 156. There is no analogy — as was'supposed, in the relations subsisting between the heir and the widow, on the one side, and two joint-tenants, or tenants in common on the other. But if true, that the possession of the heir, were to be considered in any manner, the possession of the widow; she should have replied the fact, and shown that by reason of her constructive possession, she had no cause of action, till she elected so to make it. By the demurrer, she admits the allegation of the plea, that she did not institute this action, as soon, by twenty years, as she might have done. The legislature have therefore said, it shall not now, be instituted, at all. Any other declaration of the law, must pro tanto, repeal, by construction, an unambiguous clause in the statute. For this, I am not prepared. Statutes of repose, are not to be lightly disposed of.

Judgment must therefore be rendered for the tenant, and the demurrer, over-ruled.

Hornblower, C. J. and Ford, J. concurred.

Demurrer over-ruled, and

Judgment j or the tenant.  