Guthrie v. Heirs of Owen

• Decision Date: 31 December 1837
• Citation: 18 Tenn. 339
• Parties: GUTHRIE AND WIFE v. THE HEIRS OF JAMES OWEN, Deceased.
• Court: Tennessee Supreme Court

18 Tenn. 339

GUTHRIE AND WIFE

v.THE HEIRS OF JAMES OWEN, Deceased.

Supreme Court of Tennessee.

December Term, 1837.

The complainant, Delilah Guthrie, was, previous to the year 1816, married to a man by the name of Beasly; Beasly died in the latter part of that year, seized and possessed of the tract of land out of which she now claims dower. James Owen administered upon Beasly's estate, and a judgment to the amount of $71 was obtained against him, as administrator of Beasly, in the county court of Davidson county; the plea of fully administered was, however, found in his favor. A scire facias issued on this judgment against the complainant Delilah, as widow, and the children and heirs of Beasly, to show cause why the land descended to them should not be sold to pay said judgment; judgment was obtained upon the scire facias, and the tract of land was sold by virtue of it in the year 1818. James Owen purchased the land, and obtained a sheriff's deed for it in 1819, which was duly proved and registered, and possession was immediately taken by him of the land, and he has since held it, claiming it as his own. The complainant afterwards married one Tandy Key; they could not agree, and parted in 1822. Key, however, conveyed to James Owen, as trustee, all his interest of every kind and description in both the real and personal estate, which, as husband of complainant Delilah, he by law was entitled to.

Complainant Delilah again married complainant Guthrie, in 1826, and in 1833, fourteen years after possession was taken by James Owen, this bill was filed against him. He stated in his answer that he purchased, as he believed, the entire interest, and was not aware at the time that the widow was, as against creditors of her husband, entitled to her dower; and he pleaded and relied upon the 2d section of the act of limitations of 1819, ch. 28, as a bar to her right.

Pending the suit James Owen died, and the cause was revived against his heirs and devisees.

The chancellor decreed that the complainants were entitled to dower, from which decree an appeal was taken to this court.

W. A. Cook and W. Thompson, for complainants.

Geo. S. Yerger, for defendants.

REESE, J., delivered the opinion of the court.

The principal question in this case is whether a widow to whom dower in the lands of her husband has not been assigned by the heir, or by those claiming under him, shall be barred by the possession of the heir, or of those who come in under him, if for seven years after the death of the husband she omit to sue for her dower. It is insisted that she is so barred by the operation of the 2d section of the act of 1819, ch. 28. A widow, in England, is not barred of her dower by the statute 32 Henry VIII., ch. 2, because those who are barred by that statute must count either on their own seizin, or that of an ancestor, and the widow, before assignment, has no seizin in the lands of which she is dowable, nor does she count on the seizin of any ancestor. She is not barred by the act passed for the limitation of actions (21 James I., 1 Ch. 16), for that act barred the right of entry to those who for twenty years after the accrual of such right omit to enter or bring their suits. But the widow, before assignment of her dower, has no right of entry upon the premises of which she is dowable, and, therefore, her right of entry not existing, and that statute operating only upon such right, her title is unaffected by it.

But it is said that the statute of fines and proclamations (1 Rich. III., ch. 7), or, rather, the statute which reënacts that (4 Henry VII., ch. 24), will bar the title to dower. This position, though in early times contradicted by Plowden, and, as...