4 ing. It is sufficient if it is shown that the prior occupant transferred his possession to him, even though by parol. So, too, the possession of a prior occupant may be passed by operation of law, as of an execution debtor to a purchaser of the land on execution sale,2 and of an intestate to that of an administrator, and of an assignee in bankruptcy to that of a purchaser from him, and of a tenant under the ancestor to that of the heirs," and in all cases where the interest of the occupant passes by contract or by operation of law. But such possession of a previous occupant cannot be tacked to that of a subsequent one, where there is no privity. Thus, it is held that the possession of the husband cannot be tacked to that of the widow, unless the husband claimed the land to belong to his wife. But in those States where the 1 Weber v. Anderson, 73 Ill. 439. In Smith v. Chapin, 31 Conn. 530, evidence that certain land which the plaintiff's grantor held adversely was omitted by mistake from the conveyance, was held admissible to show the relation of the possession taken to that relinquished, and to enable the defendant to tack his possession to that of his predecessor. "No privity of estate was shown," said BUTLER, J.; "and if that was necessary, the evidence was improperly admitted. But it was not necessary. It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years, whether by one or more persons. This was settled in Fanning v. Willcox, 3 Day (Conn.), 258. Doubtless, the pos sessions must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them; but such continuity and connection may be effected by any convey ance, agreement, or understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of possession in fact. Such an agreement to sell and transfer as was set up in this case was sufficient." See Jackson v. Moore, 13 Johns. (N. Y.) 513; Cunningham v. Patton, 6 Penn. St. 355; Valentine v. Cooley, Meigs (Tenn.), 613. The privity requisite to be established may be by will, Haynes v. Boardman, 119 Mass. 414; or by descent, Currier v. Gale, 9 Allen (Mass.), 522; or it may be continued by an administrator, Peele v. Cheever, 8 Allen (Mass.), 89. Where the holder of color of title held possession and paid taxes on the land for four years, and then gave a contract to sell the land to another, who went into possession and paid taxes for five years more, held, that the payment of the last five years' taxes was a payment under the title of the holder of the color of title, and inured to establish the bar. Kruse v. Wilson, 79 Ill. 233. 2 Schutz v. Fitzwalter, ante. In order that the possession of successive occupants may be held as continuously adverse so as to inure to the benefit of the last occupant, there must be a privity between them, either by contract or by operation of law. Shaw v. Nicholay, 30 Mo. 99. 8 Moffit v. McDonald, ante. 4 Cleaveland Ins. Co. v. Head, ante. 6 Williams v. McAliley, Cheves (S. C.), 200. If a parent place a son in possession of land under a verbal gift, and the possession is held by the son adversely to the father and all other persons, the death of the father will not arrest the running of the statute. By the descent cast the heirs are placed exactly in the shoes of their ancestor. And the statute having commenced running against him in his lifetime, it continues to run without intermission against his heirs. Its operation can, in such case, be arrested only by a suit at law or in equity, effectually prosecuted. Haynes v. Jones, 2 Head (Tenn.), 372. Pederick v. Searle, ante. 2 S. & R. (Penn.) 240. 7 Sawyer v. Kendall, 10 Cush. (Mass.) 241. 8 Holton v. Whitney, 30 Vt. 405. But it is held that the husband may tack the 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. 320. 3 Johnston v. Nash, 15 Tex. 419. possession of his wife to his own. Steel 229; Andrews v. Mulford, 1 Hayw. (N. C.) v. Johnson, 4 Allen (Mass.), 425; Smith v. Garza, 15 Tex. 150. The possession of a son-in-law may be tacked to that of his father-in-law, where he occupied for him. St. Louis v. Gorman, 29 Mo. 193. 1 King v. Smith, 1 Rice (S. C.), 10. 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.) VOL. II.-15 CHAPTER XXI. DOWER. SEC. 273. Not within the Statute, unless made so expressly. 8 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.' 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; 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; 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, 5 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, 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.1 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, and the same rule also prevails in Missouri.5 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.9 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.10 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." In Alabama, the statute applies to a suit or proceedings for dower, whether the application is made by the widow or by an heir.12 In Massachusetts, dower is now within the statute.18 In Maryland, where until quite recently the statute was almost identical with the statute of James, dower was held not to be within the 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. 3 Robie v. Flanders, 33 N. H. 524. Spencer v. Weston, 1 D. & B. (N. C.) L. 213. or a right of action for possession, which depends for its existence on the assignment of dower, and having no right of action or of entry until dower is assigned, her rights are not within the bar of the statute." 6 Case v. Keller, 77 Penn. St. 487. Westfall v. Westfall, 16 Hun (N. Y.), 541. 8 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. 5 Johns v. Fenton, 88 Mo. 64; Littleton v. Paterson, 32 Mo. 337. In this case DRYDEN, J., said: "The right limited is a present existing right of action or of entry, and none the less so because the right of one in whom the right is vested is under 9 Wilson v. McLenoghan, 1 McMull. some disability to sue. But the wife's (S. C.) 35; Ramsay v. Dozier, 3 Brev. right to dower is not of this source. She (S. C.) 246. But see Mitchell v. Payas, 1 is not laboring under the disability con- N. & McCord (S. C.), 85, contra. templated under the saving clause of the 10 Proctor v. Bigelow, 38 Mich. 282. statute to enforce the existing right of ac- 11 Livingston v. Cochran, 33 Arkansas, tion, as would be the case if during cover- 294. ture she was disseised of the estate that had descended to her, but she is without such right as is actionable. By the death of her husband her right of action becomes complete. This right, however, is merely a chose in action, and not a right of entry, 12 Farmer v. Ray, 42 Ala. 125. 18 Gen. Stats. c. 90, § 6. The case of Parker v. Obear, 7 Met. (Mass.) 24, was decided in 1848, before this statute was adopted. 1 statute; 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 Watts v. Beall, 2 G. & J. (Md.) 468; Kiddall v. Trimble, 1 Md. Ch. 143; Sellman v. Bowen, 8 G. & J. (Md.) 50. |