Thornburn v. Doscher

• Decision Date: 21 November 1887
• Citation: 32 F. 810
• Parties: THORNBURN v. DOSCHER and another.
• Court: U.S. District Court — District of Oregon

32 F. 810

THORNBURN v. DOSCHER and another.

United States Circuit Court, D. Oregon.

November 21, 1887

Syllabus by the Court

In an action to recover the possession of real property, the defense of ownership by the defendant or another must be specially pleaded.

A woman who is not a resident of the state is not entitled to dower in any lands therein of which her husband did not die seized.

In estimating the value of a widow's dower in land aliened by the husband in his life-time, she ought to have the benefit of the increase in value between the date of such alienation and the death of the husband, not arising from improvements made or placed thereon.

John W Whalley and James K. Kelly, for plaintiff.

Seneca Smith, for defendants.

DEADY J.

This action is brought by the plaintiff, a citizen of Arkansas against the defendants, citizens of Oregon, to recover dower in a tract of land included in the William Blackistone donation, lying on the west bank of the Wallamet river, just north of Portland, and valued at $50,000.

It is alleged in the complaint that on December 24, 1865, and prior thereto, Thomas Thornburn was seized of an estate of inheritance in the premises, and that at and during such time the plaintiff was the lawful wife of said Thornburn, and so lived with him until his death, at Prescott, Arkansas, on October 20, 1886; that the plaintiff's right to dower in said premises has not been aliened, and that she is entitled to the undivided one-third thereof during her natural life, the present value of which is $16,000.

The answer of the defendant, besides sundry denials, contains four defenses, called therein 'further and separate answers.'

The plaintiff demurs to the first, third, and fourth of these defenses, because the facts stated therein do not constitute a defense, and moves to make the second one more definite and certain.

The first defense consists of an allegation that the defendant Anna Doscher is the owner in fee-simple of the premises, and that her co-defendant is her husband. At common law this defense could have been given in evidence under the general issue of 'not guilty.' But the Code of Civil Procedure, Sec. 316, provides that 'in an action to recover the possession of real property, the defendant shall not be allowed to give in evidence any estate in himself or another in the property * * * unless the same be pleaded in his answer. ' That Anna Doscher has an estate in fee in the premises is a defense to this action, and the demurrer thereto is not well taken.

The second defense is that Thomas Thornburn purchased the premises at a sale on an execution against the property of William Blackistone and John C. Doscher, and received from the sheriff a deed therefor, in trust for the use and benefit of Anna Doscher, and thereafter, in pursuance of said trust conveyed his interest in the premises 'through' Joseph N. Dolph, to said John C. Doscher. Without stopping to consider the legality of this defense, it is enough to say that the facts and circumstances constituting it are stated sufficiently definite and certain.

The third defense is that on December 24, 1865, Thomas Thornburn conveyed his interest in the donation of William Blackistone to Joseph N. Dolph, and never thereafter owned or was seized of any part thereof; and that the plaintiff has never been a resident of this state.

The fourth defense is that at the time of the sale to Dolph, as in the third defense mentioned, the premises were not worth over $200.

By the law of this state, since May 1, 1854, a widow is entitled to dower in 'all the lands whereof her husband was seized or an estate of inheritance at any time during marriage.' 2 Or.Laws, § 2954. But if the husband aliens such lands, and they 'shall have been enhanced in value after the alienation,' the same 'shall be estimated in setting forth the widow's dower according to their value at the time they were so aliened. ' Id. Sec. 2960. 'Any woman residing out of the state shall be entitled to dower of the lands of her deceased husband lying in this state, of which her husband died seized, and the same may be assigned to her or recovered by her, as if she and her deceased husband had been residents within the state at the time of his death. ' Id. sec. 2974.

The third defense is based on section 2974. The object of this section is not to give a non-resident widow the right to dower. That was already done by section 2954, which gives the right generally, and without qualification as to alienation by the husband or the...