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May . Rumney et al.

⚫tiff his widow surviving him, and that her dower in the premises had not been made assigned or recovered. The defendants were in possession as tenants to John Garland, who, at the time the suit was commenced, was seized in fee of the estate conveyed by James May to Mc Niel; and McNiel and those claiming under him had been in the peaceable and undisturbed possession of the premises from the 17th June, 1807, down to the commencement of the present action. plaintiff moved for judgment on the special verdict, and the question was reserved by the circuit court for the opinion of this court.

The

Davidson, for plaintiff.

Douglass & Walker, for defendants.

By the Court, WING J.

The first question presented by the special verdict is, whether the plaintiff was, on the decease of her husband, entitled to dower in a lot of land of which her husband was seized during the coverture, but of which he was not seized at the time of his death.

It is admitted by the parties that this question is to be determined by the Ordinance of 1787, which contains the only express provision in relation to dower that has any bearing on this point.

The second section of the first article of the ordinance provides, "That the estates both of resident and non resident proprietors in the said territory dying intestate, shall descend [here follows the course of descents], saving in all cases to the widow of the intestate, her third part of the real estate for life, and one third part of the personal estate; and this law relative to descents and dower shall remain in full force until altered by the legislature of the district."

It is insisted by defendants' counsel, that as the provision for dower is connected with the provision directing one third of the personal estate to be assigned to the widow, it is manifest the framers of the ordinance intended that they should both be placed upon the same footing. And as both were innovations upon the common law, the provision to be made for the widow, out of the personal estate, was intended as a compensation to the widow for her loss of dower in lands of which the husband had been seized during the coverture, but which he had alienated; thus limiting her claim to dower, to lands of whichthe husband died seized.

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May e. Rumney et al.

The previous part of the section is employed in regulating the descent of estates, and a different rule was established from any that had prevailed in any part of the country over which the ordinance was designed to be operative. Had the common law rule in relation to descents been adopted, this saving clause in relation to dower would not have been necessary; but as if to avoid misconstruction, and to prevent the new rule from operating injuriously to the interests of the widow, a saving clause was introduced, recognizing some existing right. If the words used had been saving to the widow one third, instead of her one third part of the real estate for life, the defendant might have insisted with more reason that it was intended to provide a new rule of dower; but the right of the widow being mentioned in a saving clause, and the terms used being her third part, there is an obvious recognition of some ascertained existing right, protected and defined by some previous law, and which it was intended to affirm and continue in all its force and extent. This construction is strengthened by the fact, that in the other part of the sentence, relating to the personal estate, the word her is dropped. Then to what law in force in this country was reference made in this part of the ordinance? It appears to me most manifest that the reference could have been to no other than the common law, for the terms used are common law terms, having a well known meaning. The word dower used in the concluding part of the sentence is a common law term, and it is there used to designate the widow's third part of the real estate before mentioned.

It is matter of history, that for a long period previous to 1783, Great Britain held dominion over the district of country embracing much of what has been known and designated as the north-western territory. Previous to that period, and as far back as 1763, (when it was ceded by France to Great Britain as a conquered province) this portion of territory continued in the exclusive possession and occupancy of Great Britain, formed a part of her colonial possessions, was a part of the province of Upper Canada, and continued to be governed by her

laws.

That the common law of England was in force in Upper Canada with such modifications as may have been made by the local legislature of the province, can hardly be doubted. It was the basis of their rights, and formed the rule of decision in civil and criminal cases. This being a matter of history, will be noticed by courts.

May v. Rumney et al.

In 1783, the territory was ceded by Great Britain to the United States, but its actual possession was not relinquished to the United States until July, 1796, at which period we find the common law in force here, as it was generally in the United States. In 1787, the ordiance was adopted by the congress of the United States. It was designed for the whole north-western territory, including Ohio, Indiana and Illinois, as well as the country now embraced within the limits of this state. The instant the United States took possession, the ordinance became operative, and laid down the principles which constituted the groundwork of the future government. And the law of dower referred to and affirmed in this instrument continued, for many years after Ohio, Indiana and Illinois were erected into separate states, to be the only law on this subject in those states respectively.

It was never questioned, so far as I can learn, in either of these states, that the widow was by the ordinance entitled to dower in lands as at common law, until the case of Betts v. Wise, reported in 11th Ohio Rep. 219, in 1842, which arose under this clause of the ordinance, and in which it was insisted, for the defendant, that the widow's dower was limited to one third part of the real estate of which her husband died seized. Chief Justice Lane delivered the opinion of the court, and after stating the common law, remarks: "Such is the common law of dower, an institution existing wherever the common law obtains a rule which each people has the right to change, but a conception which none could shake off without substituting some other provision in its stead. It was to a people under the dominion of this idea that the ordinance was addressed, and far from assuming to prescribe a different rule or confer a new right, it does no more than recognize an existing institution, and takes care that it receives no preju dice by the operation of the law of descents. We can regard it as no less than an authoritative acknowledgment of the estate in dower at the common law, to which law we must refer to learn the signification of the term, and the extent of the dowress' interest." The judge adds: "Since the organization of the territory, a wife was dowable of all lands within it of which her husband was seized at any time during the coverture." This opinion of Judge Lane appears to be quite conclusive upon this subject.

In addition to this judicial construction of the ordinance, we find

May v. Rumney et al.

provisions in the Woodward and Cass codes of laws, adopted in the territory of Michigan soon after the organization of the territory, and in subsequent codes, requiring the wife to unite with the husband in the sale of real estate, and declaring the manner in which she should be barred of her dower, which shows the construction put upon the ordinance by our earliest law makers. See Woodward Code, 1805, pp. 53, 81; Laws 1820, pp. 30, 158; Laws 1827, pp. 65, 259; Laws 1833, pp. 264, 332. Thus we have a legislative and judicial construction of this clause in the ordinance which seems to establish its true meaning to be, (as at common law), that the wife is entitled to be endowed for her natural life of the third part of the lands whereof her husband was seized, either in law or in deed, at any time during the coverture. 4 Kent's Com. 35; Park on Dower 5.

So highly (says Judge Kent) was the law of dower esteemed, and so anxious were our forefathers to secure its undisputed establishment, that in its modern sense and enlarged extent, as applying to all lands of which the husband was seized during the coverture, it was incorporated amongst the provisions of Magna Charta, and it has continued in the English law to the preseut time; and with some modifications it has been everywhere adopted as part of the municipal jurisprudence of the United States. 4 Kent's Com. 36.

To the consummation of the title to dower three things are requísite, viz.; marriage, seizin of the husband, and his death. 4 Kent's Com, 36. The concurrence of the two former circumstances is properly the groundwork of the title, of which the death of the husband is the consummation, 4 Kent's Com. 36; Park on Dower 7. From the period when the husband dies, the incipient title which existed in the wife during the coverture becomes consummated and perfected, and her right of action to obtain the fruits of that title commences, Park on Dower, 247.

At common law it was competent for the heir to assign the widow's dower on the death of the husband, but if it was not assigned she had certain remedies. She had no right of entry until the dower was assigned to her, and she could not maintain a possessory action. The legal remedy to enforce an assignment of dower was by writ of dower, unde nihil habet, or writ of right of dower, brought against the tenant of the freehold, upon which, if she obtained judgment, dower was as

May 2. Rumney et al.

signed. She might then proceed to recover possession by ejectment. Park on Dower, 283.

No demand of dower was necessary; the right of action was perfect without it; and the widow, by failing to make demand, lost her portion of the profits of the estate previous to the demand. Park on Dower, 288; 7 Cowen 288; 6 John. Rep. 295. Thus stood the rights and remedies of the widow, in reference to dower, at the common law.

By an act of the governor and judges of the territory of Michigan, passed February 26, 1821, (Laws 1833, p. 387, § 40) all the common law remedies for the recovery of dower were abolished. It is insisted by defendants that this statute gives the writ of right instead thereof. By an act of the legislative council, (Laws 1833, p. 332, §1) it was provided, "that if the heir or other person having the next immediate estate of inheritance, should not within one mouth set out to the widow of the deceased her dower, &c., then such widow might sue for and recover the same by writ of dower brought against the tenant." The remedy provided by this act is substantially the same as the common law remedy by writ of dower, which was in the nature of a real action. The form given in the statutes seems designed to embrace a declaration in substance, as at common law. The difference is, the declaration or complaint is contained in the writ, and the common law proceeding is in other respects somewhat simplified. This act, and the act of February, 1821, continued in force until repealed by the Revised Statutes of 1838.

Defendants' counsel insist that this action is barred by the statute of limitations of November 5, 1829, (Laws 1833, p. 408) the first section of which provides, "that no writ of right or other real action, no action of ejectment or other possessory action, of whatsoever name or nature, shall hereafter be sued, prosecuted or maintained for the recovery of any lands, tenements or hereditaments, if the cause of action has now accrued, unless the same be brought within ten years after the passing of this act, any law, usage, or custom to the contrary notwithstanding."

This statute seems to be broad enough to cover all possible remedies for the recovery of an interest in lands, and yet it does not in terms enumerate the action of dower provided by the acts to which I have referred. It becomes necessary, therefore, to determine whether thə nature of the widow's right, and the remedy provided for the recovery

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