McKay v. Freeman

Dower — Assignment oe, not Necessary to Right oe Action. — A widow entitled to dower which has not been assigned to her, may maintain an action at law against the grantee of her husband who denies her right to recover the same. d em — Complaint, when Sueeicient. — In such action it is not necessary that the complaint in addition to the allegation that defendant wrongfully withholds the possession shall allege that he denies plaintiff’s right. This may be shown in evidence. Idem — Donation Act — Right oe Widow under, where Donee-Died before Final Proof.. — A donation claimant under the fourth section of the donation law, complied with the conditions of the act so as to entitle him to a patent. He thereafter conveyed the tract. His wife did not join in the conveyance. He died before the issue of the donation certificate or patent: Held, that his widow was entitled to dower in the tract.

Appeal from Washington County. This is an action to recover an estate of dower. Plaintiff is the widow of Charles McKay, deceased, who died intestate on or about the twenty-eighth day of May, 1878. McKay took six hundred and forty acres of land under the donation act, one half to himself and the other to his wife the plaintiff. The required residence and cultivation was completed on the twenty-seventh of September, 1854;. but the final proofs were not made until subsequent to his-death. On the thirtieth of April, 1865, McKay, for a valuable consideration, sold and conveyed two hundred acres of that portion of the donation subsequently allotted to his heirs to the appellant. His wife, the respondent, did not join in the conveyance. In llpril, 1875, upon final proofs being made, a patent certificate was issued allotting the east half of the section to the respondent, and the west half, of which the land conveyed was a part, to the heirs at law of Charles McKay. The respondent brought an action of ejectment to recover the possession of an undivided one-third of the two hundred acres sold by McKay in April, 1865, alleging that she is seised of an estate in dower for her own life therein. She alleges that the appellant wrongfully withholds and has so withheld the possession of the premises from her for two years prior to the commencement of the action, to her damage, etc., and that she has demanded the' possession from him. The demand for possession is admitted. The ease was tried by the court, without a jury, upon facts stipulated between the parties and upon the allegations and proofs. The court, among other findings of facts and conclusions of law, found that respondent demanded her dower on the thirteenth day of May, 1875, and “ that the rental value of said code of civil procedure allows him ten per centum of the land, from May 13, 1875, to the date of the judgment, to wit, October, 1876, is three dollars per acre; that the respondent is entitled to recover dower or an interest and possession in the two hundred acre tract described in stipulated fact No. 6, equal to thirty-eight and one tenth (38 1-10) acres or any quantity to be admeasured and set out to her, to hold in severalty during her natural life, and that the plaintiff is entitled to recover of and from the defendant the sum of one hundred and fourteen dollars and thirty cents damages for withholding her said dower since demand thereof.” These findings and conclusions of law are assigned as error. The statute requires (Civ. Code, sec. 313) that the plaintiff have a legal estate in the property and a present right of possession. Until assignment dower is not a legal estate and does not give a right of possession. (1 Wash, on Beal Prop., 284, 288; Tyler on Infancy and Coverture, 581; 4 Mass. 387; 9 Id. 12; 16 Id. 193; 2 N. T. 254; 8 Id. 113; 4 Kent, 63; 7 John. 247; 20 Id. 411; 19 Id. 167.) Before assignment, a widow cannot maintain ejectment for dower. (1 Wash, on Beal Prop., 287; 4 Kent, 64; 15 John. 319; 5 Id. 80; 45 Bart. 265; Adams on Ejectment, 66.) Unless, therefore, the statutes clearly confer this remedy, plaintiff cannot maintain this action. (5 Or. 266.) If plaintiff can maintain this action, she must show a denial of right. (Civ. Code, sec. 324.) This cannot be shown unless averred. (4 Or. 11.) Plaintiff does not aver by what right she is entitled to dower. If entitled at all, it is not in her own right, but through the right of her husband, and right to continuance of his estate. (1 Wash, on Beal Prop., 179.) Her marriage and the seisin and death of her husband should have been alleged. An examination of whether the facts proved warrant the judgment of the court, involves the question whether a widow is entitled to dower in her husband’s half of his donation claim when he has died, after completing the required residence and cultivation, but before making proof thereof and receiving patent. The reason of the law giving dower, as given- by Blackstone (2 Black. Com. 130), is “for the sustenance of the wife, and-the nurture and education of the younger children.” (1 Wash, on Beal Prop. 170.) The reason of the law for giving dower is not applicable to the donation law. Much more ample means for the support of the widow have been provided. One-half of the entire claim is there given to her in her own right. Of the other half; the entire interest of the husband who dies before patent issues, is disposed of by that act. Nothing is left to which dower can attach. As we have seen, dower is a continuance of the husband’s interest and estate. That interest is all disposed of. (1 Wash, on Beal Prop. 179.) A donation claimant may sell or devise his half of his claim after completion of his residence. If he does neither, and dies before patent issues, the land must descend as pointed out by that act. (5 Or. 204; 1 Saw. 253; 2 Id. 273; 3 Id. 419; 1 Deady, 358; 13 Wall. 428 ; 4 Or. 155.) In that act there is no provision for dower. To entitle the widow to dower in any land, the husband must have been seised, during marriage, of an estate of inheritance— an estate that would pass to his heirs as such. (Civ. Code, Mis. Laws, chap. 17, sec. 1; 4 Kent 37; 1 Wash, on Real Prop. 179; 2 Or. 30.) But where the donation claimant dies before patent issues, the land does not descend to his heirs, as such, but to the persons designated in the act, excluding some of the heirs, such as grandchildren. (1 Deady, 358; 13 Wall. 428.) In the second of Oregon 32, 33, this court held that dower did not attach to a donation claim until the conditions of the act had been complied with. Residence, cultivation and proof thereof are conditions necessary to be complied with before a donation claim ceases to be “ an estate upon condition,” “abase or conditional fee.” (1 Deady 113; 5 Or. 202.) Respondent, if at all, can only'recover damages from the time of demand. (Mis. Laws, chap. 17, sec. 25.) The complaint shows no time of demand. - The findings of the court are equivalent to the special verdict of a jury, and will not be disturbed unless manifestly contrary to the evidence. (Moore v. Murdoch, 26 Oal. 525.) There being no bill of exceptions in the case, the evidence upon which the court below acted is not before this court. This court will presume that there was evidence to sustain the finding, unless the contrary affirmatively appears from the record. (Fulton v. Ear hart, 4 Or. 61; Nelson v. Lemmon, 10 Oal. 49.) A widow is entitled to dower “of one third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred -thereof.” (Mis. Laws, chap. 17, sec. 1.) The land in controversy being a “donation claim,” the title vested in fee-simple in the donors from the date of their settlement, or at least from the date of the act, subject to be defeated by non-compliance with tbe conditions subsequent in the donation act expressed. (Civ. Code, sec. 329; Dolph v. Barney, 5 Or. 201; Lee v. Summers, 2 Or. 266; Chapman v. School District No. 1, 1 Deady, 113; Lamb v. Davenport, 1 Saw. 632; Fremont v. United States, 17 How. 559.) There is no pretense in this case that the conditions of the grant were not subsequently complied with. But it was contended in the court below that as Charles McKay, the husband of plaintiff, died May 28, 1873, and the donation claim did not issue until April 16, 1875, by reason whereof plaintiff would have taken a child’s portion of the husband’s half of the claim, under the provisions of sections 4 and 7 of the donation law, if the husband had not alienated the land in his life-time, therefore she is not entitled to dower in the land. There is no reason why a widow may not accept the beneficence of the general government, and also assert her otherwise undisputed right under the laws of the state. As the residence and cultivation required by law were completed long prior to the alienation of the land, the husband had a fee-simple title to it, when it was sold, and the wife not having joined in or acknowledged the deed, is not barred of her dower therein.