
    Hogle, Widow, &c. against Stewart.
    T*e a®j;]!™ilin0f bringing claims andprosecutions against forfeited theSQth ¿March, 1' 52.) does not bartheclaims of the -widows of persons attainted, for their dower in the estates forfeited and sold by the commissioners offorfeiiuies.
    THIS was an action of dower, brought by the demand-ant to recover her right of dower, as the widow of John . . ¡¡ogle, in 110 acres of land, situate in the town of Cambridge, in the county of Washington. The writ was returnable in November term, 1808.
    The demandant was married to John Hogle, some time before the commencement of the late war between this country and Great Britain. John Hogle was seised . . . , of the premises in question, during the coverture, and he . . . „ . . . , died seised and in possession or the premises m the year -^77, an¿ Elizabth Hogle has continued a widow ever since. John Hogle was duly attainted, for adhering to the enemies of this state, in the late war. On the 20th of February, in the year 1781, the commissioners O; forfeitures for the western district, sold the premises of •which dower is demanded, for the consideration of 330/. to Nathaniel Henry, on the conviction of John Hogle. Henry conveyed to the tenant, who has held the same ever since, under that title.
    A case containing the above facts was submitted to the court without argument; and it was agreed that if the court should be of opinion that the demandant is entitled to recover, then judgment should be entered that she recover her dower. If not, then judgment of nonsuit was to be rendered.
   Van Ness, J.

delivered the opinion of the court. The forfeiture of the husband’s estate, by his attainder, did not affect the wife’s right of dower. (Palmer v. Horton, 1 Johns. Cas. 27.) The estate that was sold by the commissioners of forfeitures, was the estate of the husband only; the wife’s right of dower remained as perfect as if no forfeiture had ever been incurred.

The question then arises, whether the statute of the 29th March, 1797,limitingclaimsandprosecutions against forfeited estates, applies to a case of dower. I think it clearly does not. It is true that the state is bound to defend the purchasers of forfeited estates, against all claims whatsoever. The deeds given by the commissioners of forfeitures, were for an absolute estate; but as it was known that the attainder did not impair the widow’s right of dower, the state intended to indemnify the purchaser against such right, whenever it should be made and enforced. The words of the 1st section of the statute are, “ that no persons, &,c. who now have, or shall, or may hereafter have, any estate, right, title, claim, or demand, to an)7 lands, &c. supposed to have been forfeited, &c. and which have been heretofore granted or conveyed to any person, &c. shall, after the expiration of five years from and after the passing of this act, &c. prosecute, sue, or maintain any action or suit at law for the recovery thereof, against the right and title so grant ed, "by the people of this state as above said.” The second, section is, “ that if any person, &c. shall, &c. after the period of five years, sue or prosecute any suit, &c. for any of the said lands, &c. so as aforesaid granted, &c. such person, &c. shall from thenceforth be utterly barred for ever of all and every such suit, &c. against the right or title so granted or conveyed by the people of this state as aforesaid.” Although the provisions of this act are loaded with a great number of words, yet none of them reach this case. The words that no person who at the time of passing the act had any estate, &c. in any lands forfeited and conveyed by the commissioners, shall, after the expiration of five years from the passing of this act, prosecute, &c. might, perhaps, embrace this case, were they not qualified and restrained by what follows. I think there is some doubt, however, even upon this part of the act, because the estate spoken of is the estate in lands forfeited and conveyed., whereas, the widow’s estate never was forfeited and conveyed. But however this may be, it is, I think, demonstrable, that when the remaining part of the same section is taken in connection with the part just adverted to, that the widow’s right is completely excluded : No action shall be prosecuted or maintained, after the expiration of five years against the right and title granted by the commissioners. The right of dower is neither adverse to the estate forfeited, nor is it “ against the right and titlé>'> granted by the state, but is in concurrence with both. The seisin of the purchaser from the state is derived from the husband, and is a continuation of that seisin upon which the claim of dower is founded. If this construction of the first section of the act be correct, it is obvious that the second section creates no bar to this suit.

This construction of the act is fortified by a recurrence to the mischief which it was intended to remedy, as disclosed by the preamble, which recites, that “ whereas the $ille deeds and other documents relative to forfeited estates, were generally carried away by the former proprietors, whose conduct caused their forfeiture, and. the title of the state, as resulting from such forfeitures, is therefore peculiarly liable to be obscured or defeated; therefore it is enacted.” This case does not fall within any of the reasons enumerated in the preamble. Indeed, when all the statutes on the subject are carefully examined, it is clear the legislature never intended to apply' the short and rigorous limitation of the statute of the 29th March, before noticed, to any cases except those in which claims were made against the right which had been acquired by the state, in consequence of the attainder of persons adhering to the enemies of the country. The statute was passed in reference to such claims only, and never was intended to extend so far as to bar a claim or interest which never had been either forfeited or sold.

There ought, therefore, to be judgment for the demandant.

Spencer, J.

I cannot concur in the opinion just given. The act of the 28th of March, 1797, in my opinion, is a bar to the demandant’s recovery. The preamble to that act cannot control the operation of the strong and ex-, press language of the enacting clause. The cases are numerous, clear and decided, in support of this principle; and, without quoting, I refer to Lord Hardwicke's opinion in Basset v. Basset, (3 Atk. 203.) The King v. Athos, (8 Mod. 144.) Mr. Justice Buller's opinion, (4 Term Rep. 793.) and to Lord Mansfield's opinion in Patterson v. Banks, (Cowp. 543.)

The enacting words are full and explicit; “ no person ■who then had, or might thereafter have, any estate, title, claim or demand in or to any lands f &c. supposed to have been forfeited for any attainder or conviction during the late war, and which had theretofore been granted by the commissioners of forfeitures, &c. shall, after the expiration of five years from the passing the act, ike. have, prosecute, or maintain any action or suit at law, for' the recovery thereof against the right granted by the people of this state f &c.

Does the act include the demand of dower, and is it a suit for the recovery of lands forfeited by attainder, against the right granted by the state ? It cannot require any argument to show that the present suit is a claim or demand in or to the lands, which have been granted by the state; for, on a recovery, the demandant has her writ of seisin, and must be put in possession of one third of them. That it is a suit for the recovery of lands, against the right granted by the people, will be manifest, by adverting to the acts of the 22d of October, 1799, 1 Green. 26.) and of the 12th of May, 1784, (1 Green. 127.) By these acts, the conveyances given by the commissioners are declared to operate as warranties from the people to the purchasers, against all claims, titles, and encumbrances whatever. The case then stands thus : the people, by their commissioners, have sold the land whereof dower is sought, in allodium, and they have warranted it against all claims, titles, and encumbrances. If the demandant has judgment, this warranty is broken, and the state is bound to an indemnity. This suit then is directly adverse to the right granted by the people; because they have undertaken to grant these lands as absolutely their own, and against every claim and encumbrance; and this brings the case precisely within the letter and spirit of the act. It is in vain to say, that the widow’s dower is not a claim adverse to the title acquired by the state. Is it adverse to the right granted by the state ? That is the,real question.

I cannot perceive, neither, why we should do away the obvious meaning of the legislature, which was to establish a short statute of limitation, in favour of a claim so stale as is the present. The act is a constitutional one. The demandant has slept on her rights until they are forfeited and gone, and I am not disposed to help her by overruling an act of the legislature.

Judgment for the demandant.  