Munroe v. Wilson

• Decision Date: 31 July 1896
• Citation: 68 N.H. 580,41 A. 240
• Parties: MUNROE v. WILSON et al.
• Court: New Hampshire Supreme Court

41 A. 240

68 N.H. 580

MUNROE

v. WILSON et al.

Supreme Court of New Hampshire. Cheshire.

July 31, 1896.

Exceptions from Cheshire county.

Writ of entry by Lewis C. Munroe against Albert F. Wilson and others. Facts found by a referee, and judgment ordered for defendants, subject to plaintiff's exception. Exceptions overruled.

Silas Hardy and Eleazer L. Waterman, for plaintiff.

Batchelder & Faulkner and Amos J. Blake, for defendants.

CHASE, J. Lewis Munroe, at the time of his death, July 26, 1841, was the owner of the premises in dispute, subject to a mortgage given by him to Abel Angier, April 6, 1840, and was in possession. He died intestate, and left a widow, Ann, and three minor children, Julia, Adna L., and Charles R. The only interest the widow bad in the premises was a right of dower. The homestead right was not created until 10 years later (Laws 1851, c. 1089), and the right to waive dower and take a portion of the estate in fee in such a case not until 1872 (Laws 1872, c. 41; Laws 1830, p. 351). It does not appear that the widow's dower was ever assigned to her. One of the children (Julia) died under age and unmarried. Upon her death her interest in the real estate, derived by descent from her father, descended to her brothers in equal shares, to the exclusion of her mother. Laws 1830, p. 351; Rev. St. c. 166, § 2; Pub. St c. 196, § 2; Crowell v. Clough, 23 N. H. 208. It thus appears that Charles R., upon the death of his father, became seised of one undivided third part of the premises, subject to the Angier mortgage and his mother's right of dower (Laws 1830, p. 351), and upon the death of his sister he became seised of an additional undivided sixth part; making his whole interest at his decease one undivided half. The plaintiff is his only child, and claims his half by descent. Angier conveyed the premises to Melvin Wilson by a quitclaim deed dated November 3, 1847, and recorded March 31, 1848. Wilson had previously (June 19, 1845) married Ann, the widow of Lewis Munroe, and was in possession of the premises when they were conveyed to him, and continued in possession until his death, April 7, 1893, a period of more than 45 years. After Munroe's death, his widow, with their children, occupied the premises until her marriage with Wilson, and after that they resided there with Wilson; she until her death, July 17, 1875, and the children until they became of age. The plaintiff was born upon the premises, August 23, 1862, and lived there until his marriage, in 1888. with the exception of two years. After his mother's death, in 1864, he was a member of Wilson's family. The defendants claim under Wilson.

It is understood from the referee's report that after Wilson received the deed from Angier his possession was held under it, and was open, visible, exclusive, notorious, and adverse to all conflicting rights. The mortgage of the premises by him and his wife March 30, 1848,—only about three months after the date of the deed,—and the conveyances, by him of portions of the premises in 1850, 1868, 1878, 1885, 1889, and 1891, do not admit of any other conclusion. They were unequivocal acts, hostile to the title of the heirs. The facts differ materially from those in Livingston v. Pendergast 34 N. H. 544, and leave no ground for a presumption, as in that case, that his possession was held by virtue of his wife's right of dower and the children's Inherited interests. Such being the character of his possession, it disseised the heirs, and entitled them to bring an action to recover possession. Their mother's right of dower did not postpone nor interfere with their right of action. It was a mere right to have dower set off to her. If the heirs, within one month after a demand, did not set out and assign a just third of the premises to her as dower, she could recover the same, together with damages for their neglect, in an action begun by a writ of dower. Laws 1830, p. 538. Before an actual set-off, she was not seised of any estate in the premises, and was not entitled to...