6

husband or his alienee or heir, will bar her by the force of the statute of non-claims, unless she bring her action within five years after the accruing of her title, and the removal of her disabilities, if any.1 In New Hampshire,2 in Georgia,3 in North Carolina, and in Tennessee, the writ is not within the statute of limitations; and in Maryland,7 it has been held, that the statute of limitations is no bar in equity to the claim of dower. The principle of the doctrine is stated clearly by the court in the case in New Hampshire. The view taken by the court was, that the statute applied only to actions, entries, and claims, founded upon a previous seisin or possession of the lands demanded, from which seisin or possession the time of limitation may be dated; and that dower cannot have a limitation dated from the seisin of the husband; and that a limitation cannot be dated from the seisin or possession of the widow, because she cannot have either until dower has been assigned to her. This doctrine was recognized and approved by the Supreme Court of Massachusetts, in a case wherein it was decided, that a writ of dower was not barred by the revised statutes of that State; and the court say, that the limitation being thus dated from the seisin, it would be absurd to extend it to actions in which seisin, not being issuable, can never become the subject of evidence on trial.9 By the modern English statute of limitations of 3

1 Park on Dower, 311, 4 Kent's Com. 69. "A woman brought a writ of dower of the seisin of her husband sixty-one years past, the action lyeth, because that is not of her owne seisin, nor of none of her ancestors, nor predecessors, neither is it an action possessorie, and it is not prohibited by the statute." Brook's Reading upon the Stat. 32 Hen. VIII. cap. 2.

2 Barnard v. Edwards, 4 N. Hamp. R. 107.

8 Dud. R. 123.

Spencer v. Weston, 1 Dev. & Bat. (N. C.), R. 213.

5 Guthrie v. Owen, 10 Yerg. (Tenn.), R. 339.

[So in Michigan. May v. Rumney, 1 Mann. (Mich.), 1. And in Georgia. Chap

man v. Schroeder, 10 Geo. 321.]

7 Wells v. Beall, 2 G. & Johns. (Md.), R. 468.

8 Barnard v. Edwards, 4 N. Hamp. R. 107; and see Moore v. Frost, 3 id. 126. 9 Parker v. Obear, 7 Met. (Mass.), R. 24. Dower is maintainable in Pennsylvania, for the wife's third in land, held by a person claiming by title adverse to his heirs, but supposed to have been the estate of the husband. Galbraith v. Green, 13 S. & Rawle, R. 85. See also, case of Dille Vaughs' estate, 4 Whart. R. 177. So in Maine, an adverse possession of the premises in which dower is claimed, for more than twenty years during the life of the husband, it was held, will not bar the rights of the widow. Durham v. Angier, 2 App. (Me.), R. 242. An ejectment will not lie for dower before assignment. Steph. N. P. 1391; Keb. R. 181.

and 4 Will. IV. c. 27, no suit for dower shall be brought, unless within twenty years after the death of the husband; and that an account of the rents and profits of the dowable lands shall be limited to six years.1 In New York, the writ of dower is abolished, and the action of ejectment substituted.2 In New Jersey, an action of dower is barred after twenty years, and in Ohio, after twenty-one years. The limitations to actions of ejectment for dower, created by the revised statutes of New York, requiring a woman to demand her dower within twenty years after the death of the husband, does not apply where the husband died previously to those statutes going into effect.5 The course of decisions in South Carolina, has been to date the running of the statute, not from the accrual of the right, but from the accrual of the right of action for its assertion, so that the statute does not begin to run until there is a possession in some one adverse to the claimant of dower.6 In North Carolina, the claim which a widow has for dower in the lands of which her husband died seised, not being before assignment, "a right or title" to the land is not barred by the Act of 1715.7 In Maryland, a widow cannot recover damages against the alienee of her husband from his death, but only from the time of demand and refusal to pay her for, or assign her dower; the feoffee is not in default until that time. This rule prevails at law and in equity.8

1 See Appendix, p. xvi.

24 Kent's Com. 70, (note).

8 Berrion v. Conover, 1 Harr. (N. J.), R. 107; [Conover v. Wright, 2 Halst. 613].

4 Tuttle v. Wilson, 10 Ohio R. 24.

5 Sayre v. Wisner, 8 Wend. (N. Y.), R. 661.

6 Richard v. Talbird, Rice (S. C.), Eq. R. 158.

7 Rev. Stat. c. 65, s. 1; Spencer v. Weston, 1 Dev. & Bat. (N. C.), R. 213.

s Steiger's Adm'r v. Hillen, 5 G. & Johns. (Md.), R. 121. [But though the statute does not apply to the wife's remedy by action for her dower, it seems that lapse of time will bar an action for an account. Kiddall v. Trimble, 1 Md. Ch. Dec. 143. In Mississippi, the action of dower is barred by the statute. Torrey v. Minor, 1 S. & M. (Miss.), Ch. 489. So in South Carolina. Caston v. Caston, 1 Rich. (S. C.), Eq. 1.]

31

CHAPTER XXX.

OF THE ACTION OF EJECTMENT AND THE RIGHT OF ENTRY.

§ 368. THE history of the action of ejectment is in a degree illustrative of the times through which it has descended, and demonstrative of the truth, that, in a progressive state of society, municipal law will infallibly, though almost silently and imperceptibly, shape itself to the ends of justice. In the earlier periods of the English law, the right to the possession of, or property in, lands, was determined by some kind of real action suited to the circumstances of the case; but, for a long time, a tenant for years had no means of recovering possession if ousted of his term, a lease for a term of years being only regarded as a contract or covenant, upon which, if ejected by a stranger, he could recover only damages, and, if by his lessor, his term and damages, by a writ of covenant.1 An alteration in the law took place in the reign of Edward IV., and the termer was allowed to recover both his term and damages; and, at length, in the reign of Elizabeth, the ejectione firma became the established form of action for the trial of titles to land. In this action, there was no fiction; the plaintiff was a real person, to whom a lease was actually sealed by the claimant upon the land; and so also was the defendant, who entered and ousted the plaintiff. This gave rise to abuse, to prevent which, a rule of court was made, prohibiting the plaintiff in ejectment from proceeding against the defendant, without previously giving notice to the person actually in the possession of the lands, who then had liberty from the court to defend the action, on an undertaking to indemnify the defendant, in whose name the action proceeded. When this rule was made is not certain. A still further improved mode of proceeding was introduced, as is said, by Rolle, Ch. J., who presided in the higher law court during the Protectorate: the plaintiff and de

1 3 Bla. Com. 158, 200.

fendant were no longer real persons, but the tenant in possession of the land was allowed to become defendant, on entering into a rule to confess the lease to the fictitious claimant, his entry into the land, and his ouster by the fictitious defendant, or, as he was called, the "casual ejector;" and the subsequent proceedings were then carried on in the name of the real tenant. The action, according to Lord Mansfield, is the creature of Westminster Hall, introduced within time of memory, and moulded gradually into a course of practice by rules of the courts.2 It is a real remedy in respect to the land, and personal in respect of the damages and costs. Hence it is called a mixed action, in which a lessee for years, when ousted, can recover his term, as also his damages. It is also a possessory action, and only maintainable where the lessor of the plaintiff may enter.3 The action of ejectment is the action by far the most in use in this country, and even in those States, as the reports show, wherein real actions still remain in force as the heritage of the old English Common Law. some of the States, it is said, it is retained with its fictions, and in others without. In Pennsylvania, South Carolina, Missouri, Arkansas, its fictions form no part of the practice," and so in Rhode Island. It has been stated, that, in all the States, the proceedings in the ac

In

1 Rosc. on Real Actions, and Runn. on Eject.; Robinson v. Campbell, 3 Wheat. (U. S.), R. 212. In the colony of Massachusetts, before judicial proceedings had assumed a regular and systematic form, the fictitious action of ejectment had become established in the English courts; but the fictions were intelligible only to lawyers, and were not of a nature to be approved by the Massachusetts puritans. Stearns, in his "Real Actions," says: "We should hardly expect them to resort to the indirect method of making a lease of their lands, in order to try the title. And, as to confessing a lease, an entry, and an ouster, which had never had any existence in fact, they seem as we should naturally expect to have regarded it as a violation of truth, and therefore wholly inadmissible. It is doubtless to these circumstances that there are only two cases to be found upon the records of our courts, of the fictitious action of ejectment upon the English model." Stearns, supra, 396 (note).

2 Per Lord Mansfield, in Fairclaim v. Shamtitle, 3 Burr. R. 1292.

8 Bac. Abr. Eject. A. 2; 2 Steph. N. P. 1374. In ejectment, under stat. of 1 Geo. IV. c. 87, s. 2, the landlord can recover the mesne profits of the premises, from the expiration of the tenant's interest, down to the time of the verdict, or some other prior day, to be specially mentioned therein. But trespass must be resorted to for the subsequent profits. Bac. Abr. Eject. (A.), 2.

4 A number of cases for the recovery of land in Maryland are reported in the 4th volume of Har. & McHen. R., before the revolution, which are all actions of eject

ment.

5 4 Kent's Com. 71 (note).

tion are accommodated to circumstances, and to the views entertained in each as to convenience.1

§ 369. Although the action is not, eo nomine, included in the act of limitations, yet, inasmuch if it be enacted that none shall make an entry but within a certain declared period of time after the right or title shall first descend or accrue, and inasmuch as that right is taken away by the lapse of the prescribed period, the consequence is, that no action of ejectment (the privilege of bringing which is wholly dependent on the right of entry) can be sustained. Indeed, the right of entry and the right to maintain ejectment are so much alike, in legal sense, that one may be used in that sense for the other. This has long so been held under the statute of James, and may be regarded as the settled construction in this country.2 Therefore, to determine whether or not the party is barred of his right to maintain an action of ejectment, it is requisite to determine when his right of entry accrued.

§ 370. It has been commonly said, that a possession for sixty years creates a complete title against anybody; and, indeed, it is so laid down by Blackstone.3 The annotator to that author (Christian) points out wherein it is not universally true; for an uninterrupted possession for sixty years will not create a title, where the claimant or demandant had no right to enter within that time. An estate for life or years may continue for upwards of sixty years, and yet the reversioner may prosecute his right of entry by an ejectment. As the remedy only, and not the right, is barred by the statute, it is possible that an estate may be enjoyed adversely for even centuries, and may

1 Stearns' Real Act. 57:

2 Henderson v. Griffin, 5 Peters (U. S.), R. 158. And see also Bradstreet v. Huntingdon, id. 40; Miller v. McIntyre, 6 id. 61. [In Tennessee, a title is not barred by a mere failure to sue during the time limited; but there must have been an adverse possession. Neddy v. State, 8 Yerg. (Tenn.), 249; Smith v. McCall, 2 Humph. (Tenn.), 163. A sheriff's deed of land sold on execution relates back to the date of the levy and invests the purchaser with the right of entry from the time of the sale. He acquires by his purchase not merely an equity, but an inchoate legal title; and the statute of limitations begins to run against his right of entry from the time of the sale and not from the date of the deed. Chalfin v. Malone, 9 B. Mon. (Ky.), 596. The doctrine of entry by relation applies only to the case of disseisor and disseisee. Litchfield v. Ready, 1 Eng. L. & Eq. 460.]

8 3 Bl. Com. 196.