Brown v. Morisey

.Douglas, L,

dissenting. 1 can not assent to either of the propositions that what would bar the husband if living would also bar the wife, or that one whose only title is the statute of limitations based upon a naked trespass, is in any better position than the heir or an innocent purchaser for value rightfully in possession ah initio. It is conceded that no ordinary statute of limitation ever runs against the right of dower, and that if the defendant held directly or indirectly under the heirs of Brown, the admitted owner, his title would be subject to the widow’s right of dower. But it is said that he has a clear title because he holds under no one, and adversely to all the world by mere occupancy. Why should he be thus preferred? Lord Coke says: “There be three things highly favored in law — ! life, liberty and dower;” and this is still the spirit of our laws. Under our present law, the husband could not defeat the wife’s right of dower, either by direct conveyance or by permitting adverse possession. Under the old law the plaintiff was entitled to dower because her husband died seized of the land. At that time, the defendant had no title, and she would have been entitled to dower as against him. If no statute of limitation runs against that right, what has she done to forfeit it ? Nothing that I can see. The view of the Court would, in my opinion, offer too great an opportunity as well as incentive to fraud. I know nothing of the facts except as they appear in the record; but suppose the defendant had *301entered rightfully under a deed from tbe beirs, how easy it would be for him simply to hold back his unrecorded deed which may for so many years have been his only muniment of title, but which would now operate as an incumbrance.

Statutes of limitation relating to land were formerly statutes of presumption; that is, they presumed a deed. But from whom was the deed presumed unless from him who held the title ? I do not mean to oppose all statutes of limitations or to denounce those who take advantage of them, oftentimes as the only means of defending substantial rights after the necessary evidence has been lost through lapse of time; but he who defends a title, and much less he who acquires a title, through such statutes, can stand in no better position than one whose title has never been questioned.

Giving them,-then, their fullest legitimate scope, I do not think we should encourage fraud by permitting a mere dis-seizor, who, if he had entered by right, would have no de-fence, to oppose the just claims of the widow with the naked shield of his own wrong.