Proctor v. Bigelow

• Decision Date: 29 January 1878
• Citation: 38 Mich. 282
• Court: Michigan Supreme Court
• Parties: Samuel Proctor v. Nancy Bigelow. William H. Scott v. Nancy Bigelow

38 Mich. 282

Samuel Proctor v. Nancy Bigelow. William H. Scott v. Nancy Bigelow

Supreme Court of Michigan

January 29, 1878

Submitted January 17, 1878

Error to Wayne.

Ejectment. Defendant brings error.

Judgment reversed, and a new judgment rendered in plaintiff's favor with costs of both courts.

Prentis & Fox for plaintiffs in error.

Pendleton & Radford for defendant in error. In civil cases, except actions for seduction, marriage is provable by reputation declarations and conduct of the parties, 2 Greenl. Ev § 462; Northfield v. Vershire, 33 Vt. 110; 1 Greenl. Ev., § 104 a; Evans v. Morgan, 2 Cr & J., 453; Johnson v. Lawson, 2 Bingham 86; Donnelly v. Donnelly, 8 B. Mon., 113. Statutes of limitation do not apply to dower, May v. Rumney, 1 Mich. 1; Wells v. Beall, 2 Gill & J., 468; Barnard v. Edwards, 4 N. H., 109; Robie v. Flanders, 33 N. H., 524; Tooke v. Hardeman, 7 Ga. 20; Spencer v. Weston's Heirs, 1 Dev. & Bat., 213; Guthrie v. Owen, 10 Yerg. 339; Parker v. Obear, 7 Metc. 27; Wakeman v. Roache, Dudley (Ga.), 123; Chew v. Farmers' Bank, 9 Gill 361; 4 Kent's Com. [12th ed.], 70 n. d.

OPINION

Campbell, C. J.

Nancy Bigelow sued for dower in lands aliened by her husband in 1838. He died in 1851. These suits were brought in 1876.

The two principal questions presented are 1, whether her marriage was proven by legal evidence; and 2, whether dower is governed by the statutes of limitation.

The marriage was proved by her son's testimony, showing that she and his father lived together and brought up a large family, treated each other on all occasions as husband and wife, were so reputed in the family and by others, addressed each other as such, and jointly signed papers in that relation.

We know of no authority which requires any better proof of marriage, unless in criminal prosecutions and cases of seduction. There is no rule of law making marriage records the best evidence in any case, and even where they exist some parol evidence is usually necessary to identify the parties, in case of any controversy. In most cases where the right to property is to be made out by proof of a marriage, the witnesses who were present are not living or attainable. One or both of the married persons must die before any inheritance or dower can exist. It would be impossible in a majority of such cases to prove a marriage by any better testimony than conduct and reputation. The general presumption in favor of legality has led to more liberal rules instead of stricter ones in modern times, as more just and reasonable. 1 Starkie Ev., 45; Hutchins v. Kimmell, 31 Mich. 126; 2 Greenleaf's Ev., § 462; 3 Edwards' Edition of Phillip's Ev., 599 and cases.

The question whether the statute of limitations applies to rights of dower is supposed to be decided in the negative by the case of May v. Rumney, 1 Mich. 1.

In that case the facts showed that James May, the husband of the demandant, died in January, 1829, having aliened the land in dispute in 1807. On the 5th of November, 1829, a law was passed providing a short period of limitations of ten years for all real and possessory actions where the right of action had then accrued; and it was held Mrs. May's right did not come within the statute.

At the time of Judge May's death there had been no new remedy for the recovery of dower adopted, and it was left to the common-law remedies. The opinion in May v. Rumney discusses these fully, and points out that the remedy by writ of dower was not a possessory action, but only determined the right, which, when determined, could afterwards be enforced by ejectment. Of course, under these circumstances it would, if the views of the court were correct, preclude the operation of the short law of 1829, and no other statute was in question under the issue. The first statute passed providing a speedier remedy for dower was "An act for the speedy assignment of dower, and for the preventing of strip and waste by tenants therein," approved October 29, 1829. This act was passed six days before the short statute of limitations. It provided for proceedings by writ of dower, but also gave a writ of seizin, which rendered a supplemental ejectment unnecessary. But this statute required a demand of one month before any action could be brought, and thus rendered it impossible for Mrs. May to sue before the 5th of November.

The Revised Statutes of 1838 seem to have made provision for two remedies. One was the writ of dower, which might be brought after one month and within one year from demand, under which she could recover possession and damages for detention. Revised Stat. of...