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Embree v. Ellis

2 Johns. 119 Court N.Y. Sup. Ct. English

Delivered by Thompson, J.

Contents

Majority

p. 118
Embree, Widow, against Ellis.

Headnote

This was an action to recover, dower, in lands, in the county of Westchester. The cause was tried before Mr. Justice Livingston, at the circuit in Westchester, the 23d May, 1805. The demandant’s count was in the usual ■form. The defendant pleaded that the husband of the demandant was never seized of such an estate, as he could endow the demandant of, on the day of their marriage, nor at any time since. To this plea, there was a •a replication of seisin in the husband, &c.
M having been in possession of land for ten years, conveyed il in fee toEr who continued in possession twelve years, when the laud ■was sold under a fieri facias against the property of E, and purchased by M. in an action of dower brought by the wife of
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33. this «"as held prima facie evidence of seisin in the husband,so as to entitle the . wife tothe dower. Where the defendant acknowledged that he got his title from one who claimed to hold aj> a devisee under the will of the. grantor to E, this was held to be a recognition of the title under which the demandant’s husbandclaimed. The demandant in dower is not entitled to damages unless the husband died seised.
From the evidence produced at the trial, on the part of the demandant, the following facts appeared. One Gerardus Wilisie possessed the premises about fifty years ago. He entered under Lewis Morris, and held possession by lease, .until his death in 1763. A short time af-1 ter, the widow of Wiltsie delivered up the lease to Lewis Morris the younger ; but she continued in possession, and paid rent to him until 1774, when he conveyed the premises in question to Samuel 'Embree, the husband of the demandant. The deed was dated the 1st day of October, 1774, and purported to be a conveyance in fee, and contained the usual covenants. Embree entered upon the premises, and continued in possession, until 1784, when he went to Nova Scotia, and left his wife and family in possession. A judgment was obtained in the supreme court, in 1786, by Lewis Morris, the younger,’ against Samuel Embree, on which a fieri facias issued, and the premises in question were sold by the sheriff, and Morris became the purchaser under the sheriff, who conveyed the premises to him by a deed, dated the 11th December, 1786. Under this deed, Lewis Morris, the younger, became again possessed of the premises, and so continued until his decease. After his death, his son, # , William morris, entered and continued in possession for several years ; and after him Gouverneur Morris entered, and has continued in possession to this day. Ellis, the defendant-, is his tenant. Lewis Morris, the younger, by his last will and testament, devised part of his estate to his son Lewis, and the residue to his other sons equally ; and it was contended by the demandant’s counsel, that William Morris, entered under that will. The demand-ant further proved, that Gouverneur Morris ackowledged, that he had got the premises from William Morris, having given him in exchange a farm in New-Jersey. The death of the husband of the demandant, and the annual value of-the premises to 200 dollars, were also proved.
On the part of the defendant, it was proved, that the
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premises in question were always reputed, and taken tobe • » . . * _ ,, _ 4 within the manor of Mornsama. That Lewis Morns, the elder, died possessed of the manor, and of the premises, as part of it. By his last will, dated in November, 1760, he devised apart of the manor, including the premises in question, to his wife for life, and the remainder to his son, Staats L. Morris, in fee, provided he outlived his mother, and paid the executors 700Z. The widow died in 1788, and Staats L. Morris, survived her and paid the 700Z. to the executors. In 1785, Staats L. Morris came to this state from England, where he resided, and took possession of the manor house, at Morrisania. In 1787, he executed a deed to Gouverneur Morris, of the lands so devised to him; but it appearing that Lewis Morris, the younger, was in possession at the time the deed was executed, the counsel for the demandant objected to the reading of this deed as evidence, and the same was overruled by the judge.
The judge charged the jury, that the. acknowledgment af Gouverneur Morris, that he got the place of William Morris, was conclusive against the defendant; that though no possession could operate against Staats L. Morris, the remainder-man, until the expiration of the particular estate of the widow; yet after so long a possession, the jury ought to presume a grant to Lewis Morris, the younger; that if the jury should be of opinion, that the seisin of the husband of the demandant was fully proved, that she was then entitled to one third of the annual value of the premises, from the commencement of the suit. The jury found a verdict for the demandant, for 52 dollars damages.
A-motion was now made on the part of the defendant, to set aside the verdict, and for a new trial.
JD. B. Ogden, for the defendant.
1. Has the defendant proved such a seisin ill her husband, as would entitle her to dower? To entitle a wife to dower in the lands of her husband, it is essential that the husband should have been seised of an estate of inheritance in such land.[3] A mere
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possession of tho husband is not sufficient, unless it be such as to amount to an estate of inheritance. Embree never had a legal estate of inheritance in the premises ; and had the devisees of Lewis Morris, the elder, brought an ejectment against him, they would have recovered the possession. If Stoats L. Morris could have recovered this property, as being seised in foe, then Embree had no right; for two persons cannot be seised in fee, of the same premises at the same time. But it may be said, that Embree had acquired a sufficient title by possession. The statute of limitations gives no right or freehold of inheritance to the person who has been in possession of lands for twenty-five years ; it merely deprives the owner, who has been so long out of the possession, of his action to recover it,. But Embree was not in such continued possession for more than twenty-three years; for the statute of limitations could not begin to run against Stoats L. Morris, the remainder-man, until the particular estate ceased by the death of the widow, which happened in 1785. No right, therefore, was required by Embree, by the operation of the statute.
The jury were charged to presume a grant to Lewis Morris, the younger. Grants are presumed in favour of the person in possession; but here the presumption is urged for the purpose of turning a party out of his possession. Again, a presumption is to be relied on only until the contrary be proved ; and the evidence offered in the present case, is sufficient to repel every presumption of a grant. But from whom is the grant to be presumed ? From Lewis Morris, the elder ? It is proved that he was dead, and that he died seised of the premises in question. From Sarah, the widow ? But she had only an estate for life. Staats L. Morris, the remainder-man in fee, was the only person capable j>f malting such grant ;[3] and it is not presumable, that he had executed a grant, since he conveyed the premises, in 1787, to Gem
p. 122
verneur Morris. Indeed, no valid deed could have been made by him, since he was not in the actual possession. Lewis Morris, the younger, having conveyed the property wrongfully, though he afterwards acquired it under the sheriff’s sale, he cannot now avail himself of the possession of his grantee under that deed, to support his own title.
2. There is no evidence that Gouverneur Morris derived his title under the will of Lstvis Morris, the younger. His acknowledgment that he got the premises from Wil- ■ Ham Morris, does not prove that fact; nor is there evidence how, or under whom William Morris held.
3. The judge was incorrect in directing the jury to find damages. At common law the wife was not entitled to damages; they were given to her by the statute of Merton, in case only of the husband’s dying seised.[3] Here Embree did not die seised of the premises.
Benson and Sampson, contra.
It is true that there must be an estate of inheritance in the husband ; that is, such an estate, as on the death of the tenant, will descend to his heirs. Here, on the death of the tenant, Embree, his heirs would have held the premises. It is not necessary that the [*] husband should be seised of an estate of inheritance in fee simple. The seisin, that is, a holding as of right against ail the world, was in Embree. Though he went away in 1784, yet the seisin or possession continued in him, as he left his wife and family in the occupation of the premises. The statute of limitations in regard to real estates, has all the effect of conferring a title on the tenant, since it devests the owner who has remained out of the possession. The distinction between the giving a' right, and the taking away a remedy, applies only to personal property. Nothing passed by the deed from Staats L. Morris to Gouverneur Morris, for the grantor was out of possession, and there was a tenant holding adversely to him. Gouverneur 31oms, having acquired his title by an exchange with William Morris,
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whicli operates as a warranty, he is estopped by his own * . . „ , act, from setting up any title adverse to that or Lmorce, under whom he must be considered as holding, since William Morris claimed to hold under the will of Lewis the younger, who had conveyed the premises to the demandant’s husband. By his acknowledgment, therefore, that he got the land from William Morris, he clearly admits the title as derived by him from the husband of the demandant.
Ogden, in reply.
The principle that the statute of limitations merely suspends a right, and does not transfer it to another, applies to real as well as personal estate. For after an adverse possession of twenty-five years, a bare acknowledgment of the title of the real owner, will prevent the operation of the statute, which would not be the case, if the continued possession for that period gave a complete title.

delivered the opinion of the court. The principle question in this case is, whether a sufficient seisin in the demandant’s husband has been shown, to entitle her to dower. Lewis Morris, the son, had been possessed of the premises in question, by receiving the rents and profits thereof for ten years; he then conveyed them in foe to the demandant’s husband, who continued in possession for ten or twelve years, until they were sold under an execution against him, and purchased by Lewis Morris, the son. These facts were clearly sufficient,prima facie, to entitle the demandant to a recovery. Nothing, we think, was shown on the part of the defendant, to defeat her right. The circumstances submitted to the jury, from which they might presume a deed from Lewis Morris, the father, to Lewis Morris, the son, were strong ; yet if the merits of the demandant’s claim rested alone on this, I should entertain some doubts. But the acknowldgment of Gouverneur Morris amounted to a full recognition by him of the title under which the demand-ant claims.- William Morris, from whom he acknowledges

p. 124
lie got the place in exchange for one in New-Jersey, claimed to hold it as a devisee under the will of Lewis Morris, the son, who was the grantor in the deed to the demand-ant’s husband. We think, therefore, that the demand-ant is entitled to her dower, but not to damages. In this respect, the direction of the judge and the verdict of the jury were incorrect. At common law, no damages were recoverable in dower. They are given by statute, and the statute extends only to cases where the husband dies sei-sed. (Coke Litt. 32. b. Dyer, 284. and cases there cited.)

The opinion of the court therefore is, that the demand-ant is entitled to judgment, on her remitting the damages found by the jury, otherwise a new trial must be awarded.

Judgment for the demandant.