wife, by statute, is made an heir of her husband, the rule would be different, as in those cases she would hold in the double capacity of heir and widow. The possession of a son may be tacked to that of his father.1 But in all cases the several occupancies must be so connected that they can be referred to the original entry, and the continuity of the possession must be unbroken; as, if there has been such a lapse in possession as to raise a presumption of abandonment, the constructive seisin of the owner of the legal title will apply and the possession must begin de novo; and whether there has been such a lapse or not is a question for the jury, in view of all the circumstances. So, too, the successive occupants must claim through their predecessors; and if they claim independently the continuity is broken, and each must stand upon his own possession.* SEC. 272. Effect of bringing Ejectment. Although the adverse possession of a defendant in ejectment cannot, during the pendency of the suit, ripen into an absolute title under the operation of the statute of limitations, yet the effect of the statute is neutralized only in respect to the particular suit and the plaintiff therein. And after the termination of that suit, the statutory limitation having meanwhile expired, no subsequent action can be brought, either at law or in equity, to question that title or possession; and if the plaintiff fails therein, the period during which the action was pending is not deducted from the period requisite to gain a title by possession. 5 possession of his wife to his own. Steel 1 King v. Smith, 1 Rice (S. C.), 10. 229; Andrews v. Mulford, 1 Hayw. (N. C.) 320. 8 Johnston v. Nash, 15 Tex. 419. Menkens v. Blumenthal, 27 Mo. 198; Taylor v. Burnside, 1 Gratt. (Va.) 165; Wickliffe v. Ensor, 9 B. Mon. (Ky.) 253; Doe v. Eslava, 11 Ala. 1028. 37. 5 Hopkins v. Callaway, 7 Coldw. (Tenn.) CHAPTER XXI. DOWER. SEC. 273. Not within the Statute, unless made so expressly. SEC. 273. Not within the Statute, unless made so expressly. Except where specially so provided, a widow's right to dower is not barred by the statutes of limitations in the several States.1 The writ of dower unde nihil habet is a real action, which lies for the recovery of dower where none has been assigned. So, too, courts of equity have concurrent jurisdiction with courts of law, and can both assign dower to the widow and assess and award damages;3 and in some of the States courts of probate are by statute invested with this power, and this statutory, has taken the place of the commonlaw remedy. The writ of dower was not within either the statute of Henry VIII. or James I., and the only method of avoiding it was by a fine levied by the husband, or his alienee or heir, which, under the statute of non-claims, barred the wife unless she brought her action within five years after her title accrued, and the removal of her disabilities, if any. It will not be profitable to review the office, purposes, and nature of writs of dower, as that is not germane to our subject, and also because they have been so generally superseded by statutory and equitable remedies, that they are not generally resorted to in practice. In many of the States, a widow's claim to dower is expressly brought within either the general statute of limitations, or a special limitation is imposed by the statute providing for dower. This is the case in Georgia, where the widow's application is limited to seven years after the husband's death; 5 but prior to the act of 1839 her right was not within the statute, and was not barred by the mere lapse of time." In Iowa, by statute, the right of dower is not destroyed, but the remedy for its admeasurement in the county court is barred in ten years; but it is held that courts of equity may assign it after that time. In Indiana, 1 Barnard v. Edward, 4 N. H. 107; Bordly v. Clayton, 5 Harr. (Del.) 154; May v. Rumney, 1 Mich. 1; Mitchell v. Payas, 1 N. & McCord (S. C.), 85; Wakeman v. Roach, Dudley (Ga.), 123; Parker v. O'Bear, 7 Met. (Mass.) 24; Owen v. Campbell, 32 Ala. 521; Looke v. Hardeman, 7 Ga. 20. 2 Booth on Real Actions, 166; and according to this author there is still another writ, called the writ of right of dower, 4 Park on Dower, 311. 5 Locke v. Hardeman, 7 Ga. 20. 6 Chapman v. Schroeder, 10 Ga. 321. 7 Starry v. Starry, 21 Iowa, 254. the widow's right of dower is barred in twenty years after her disabilities, if any, are removed. Such, also, is the provision in Ohio, except that the limitation is twenty-one years.2 In New Hampshire, the period of limitation is twenty years, and the statute attaches from the time when the widow's right to a writ of dower accrues after demand, and not from the time of her husband's death. In North Carolina, it is held that the statute does not apply until dower is assigned. In Pennsylvania, the statute runs against a claim for dower, by action of dower, unde nihil habet." In New York, a claim for dower is barred absolutely in twenty years." In New Jersey, actions for dower are held to be within the statute. So in South Carolina. In Michigan, it is held that as dower, like other landed interests, can be reached only by the statutory action of ejectment, it is barred by the statutory limitation upon that action. In Arkansas, it is held that the statute does not run against a widow's claim for dower while the heirs of her husband are in possession of his lands, but that the rule is otherwise where a purchaser is in possession. 10 In Alabama, the statute applies to a suit or proceedings for dower, whether the application is made by the widow or by an heir." In Massachusetts, dower is now within the statute.12 In Maryland, where until quite recently the statute was almost identical with the statute of James, dower was held not to be within the statute; 18 but it is within the present statute. In England, under the statute 3 & 4 Wm. IV. c. 27, no suit for dower can be maintained unless brought within twenty years after the death of the husband, and no action for an account of the rents and profits of the dowable land after six years. 1 Harding v. Third, &c. Church, 20 Ind. 71. 2 In Tuttle v. Wilson, 10 Ohio, 24, it was held that by the lapse of twenty-one years the right of dower was not only barred at law, but also in equity. 8 Robie v. Flanders, 33 N. H. 524. Spencer v. Weston, 1 D. & B. (N. C.) L. 213. 5 Case v. Keller, 77 Penn. St. 487. 541. 7 Berrian v. Conover, 16 N. J. L. 107; Conover v. Wright, 6 N. J. Eq. 613, reversing the same case, id. 482, in which it was held that the statute did not apply to dower. 8 Wilson v. McLenoghan, 1 McMull. (S. C.) 35; Ramsay v. Dozier, 3 Brev. (S. C.) 246. But see Mitchell v. Payas, 1 N. & McCord (S. C.), 85, contra. Proctor v. Bigelow, 38 Mich. 282. 10 Livingston v. Cochran, 33 Ark. 294. 11 Farmer v. Ray, 42 Ala. 125. 12 Gen. Stats. c. 90, § 6. The case of Parker v. Obear, 7 Met. (Mass.) "24, was decided in 1848, before this statute was adopted. 13 Watts v. Beall, 2 G. & J. (Md.) 468; Kiddall v. Trimble, 1 Md. Ch. 143; Sellman v. Bowen, 8 G. & J. (Md.) 50. CHAPTER XXII. EFFECT OF FRAUD. SEC. 276. Instances in which the Statute will not run until Fraud discovered. SEC. 274. Statutory Provisions as to. SEC. 274. Statutory Provisions as to. In many of the States it is now expressly provided that, where the cause of action is fraudulently concealed, or where it arises from fraud, the statute shall not begin to run except from the time of its discovery, as in Maine, Massachusetts, Connecticut, Alabama, Georgia, Indiana, Illinois, Mississippi, Maryland, Michigan, and New Mexico. In New Mexico, however, the saving is restricted to cases where the cause of action originated in or arises out of a trust. In Iowa, Colorado, Florida, Kentucky, North Carolina, South Carolina, Wisconsin, Kansas, Missouri, Minnesota, New York, Ohio, Nebraska, Nevada, California, Arizona, Dakota, Utah, Idaho, Montana, New Mexico, and Wyoming, provision is made that in bills or actions for relief on the ground of fraud, the cause of action shall not be deemed to have accrued until the discovery of the fraud. In the first eleven States named, the questions growing out of the fraudulent concealment of the cause of action are set at rest by the statute. But in the last-named States and Territories, inasmuch as the statute makes express provision for a saving only in cases where a court of equity, or courts of law clothed with equitable powers, can give relief, and only in favor of bills and actions for such relief, it would seem to follow, under the well-settled rules for the construction of statutes, that the fraudulent concealment of the cause of action, or the non-discovery of the fraud for which an action would lie, affords no excuse for the delay of the plaintiff in an action at law in bringing his action, and that he can only obtain relief through the interposition of a court of equity, or the equitable powers of courts of law, in such cases as come within the scope of equitable relief. In Vermont, Rhode Island, New Hampshire, Louisiana, New Jersey, Arkansas, Delaware, Pennsylvania, Texas, and Tennessee, no statutory provision upon this subject exists. In Virginia and West Virginia, the statute provides that if a person shall, &c., "or by any other indirect means obstruct the prosecution of such right," &c. And it is held that, when the facts upon which the action is founded are exclusively within the knowledge of the defendant, and he fraudulently concealed them, he thereby obstructs the prosecution of the right within the meaning of the statute.' But in 1 Vanbibber v. Bierne, 6 W. Va. 168. Missouri, under a somewhat similar statute, it was held that the statute did not apply to concealment or improper acts by other persons than the debtor.1 In some of the other States in which no statutory provision exists upon this subject, it has been held that in the case of fraud, and the wilful suppression of the truth, the statute does not begin to run at law until its discovery. But the statute is put in motion as soon as the fraud is discovered, although its full extent or all the facts are not known.3 In Massachusetts, before the present statutory exception existed, the fraudulent concealment of a cause of action was held to be a good replication to a plea of the statute. In Maine, also, this rule was adopted. The doctrine of these cases was predicated upon a dictum of LORD MANSFIELD, in an English case; but this dictum seems never to have been followed in the English cases in actions at law, nor do the American cases before cited seem to have been generally followed in this country. The courts of New York repudiated this doctrine at an early day, so far as it made fraud a replication to the statute in courts of law; and such also was the case in Kentucky, Mississippi,10 Virginia," Tennessee, 12 North Carolina, 13 and South Carolina.14 In England, this question is decisively put at rest by a provision of the statute,15 to the 1 Wells v. Halpin, 59 Mo. 92. 6 2 Pennock v. Freeman, 1 Watts (Penn.), 401; Jones v. Conway, 4 Yeates (Penn.), 109; Rush v. Barr, 1 Watts (Penn.), 110; Morgan v. Tener, 83 Penn. St. 305; Wickersham v. Lee, 83 id. 416. 3 Ferris v. Henderson, 12 Penn. St. 49; where a clerk made a fraudulent entry Bricker v. Lightner, 40 id. 199. 4 Massachusetts Turnpike Co. v. Field, 3 Mass. 201; Farnam v. Brooks, 9 Pick. (Mass.) 212; Wells v. Fish, 3 Pick. (Mass.) 74; Homer v. Fish, 1 id. 435. See also Douglass v. Elkins, 28 N. H. 26; Way v. Cutting, 20 id. 187; Campbell v. Vining, 23 Ill. 525; Hugh v. Jones, 35 Ga. 40. 5 Cole v. McGlothry, 9 Me. 131; McKown v. Whittemore, 31 id. 448. 6 Bree v. Holbreck, Doug. 654. See also Brown v. Howard, 3 B. & B. 73. 7 Brooksbank v. Smith, 2 Y. & C. 58; Imperial Gas Light Co. v. London Gas Co., 10 Exch. 39. See, in this country, Pyle v. Beckwith, 1 J. J. Mar. (Ky.) 445; Wilson v. Ivey, 32 Miss. 233; Callis v. Waddy, 2 Munf. (Va.) 511; Rice v. White, 4 Leigh (Va.), 474; Cox v. Cox, 6 Rich. (S. C.) Eq. 155; York v. Bright, 4 Humph. (Tenn.) 312; Hamilton v. Smith, 3 Murph. (N. C.) 115. 8 Troupe v. Smith, 20 Johns. (N. Y.) upon his employer's books, it was held that the statute ran from the date of entry. 10 In Wilson v. Ivey, 32 Miss. 233, the court held that, in case of fraud, the statute begins to run from the time of its commission, and not from the time the injury arising from it is established. 11 In Rice v. White, 4 Leigh (Va.), 474, an action for deceit was held to arise from the time of its commission. Callis v. Waddy, 2 Munf. (Va.) 511. 12 York v. Bright, 4 Humph. (Tenn.) 312. See also, to same effect, Smith v. Bishop, 9 Vt. 110; Fee v. Fee, 10 Ohio, 469. 18 Hamilton v. Smith, 3 Murph. (N. C.) 115. 14 In Miles v. Barry, 1 Hill (S. C.), 296, the maker of a note secretly and fraudulently obtained possession of it, and kept it until the statute had run upon it. The court held that the fraud of the maker did not save the statute. 15 See Appendix, 3 & 4 Wm. IV. § 26. |