The opinion
Decided April 20, 1909.
On Petition for Rehearing.
[ 101 Pac. 212 .]
MR. Justice Slater
delivered the opinion of the court.
7. It is now urged by plaintiifs that, because the deed from Mrs. Neal to Henrichs might operate to transfer to the latter her unassigned right of dower, and the right to have it assigned in his name, and because he might have availed himself of that right at any time before the death of the widow, which occurred in July, 1900, he for that reason possessed ah equitable defense to any action of ejectment that might have been brought against him by the heirs, and by means of that- defense he could have successfully maintained his possession to the extent of one-third of the land, and hence the right of action in the heirs would be of no avail to them, and the statute would not begin to run as to such one-third until the date of the death of Mrs. Neal. But before assignment of dower there is no right to an undivided one-third, or to any particular part.
8. We held in the main opinion that the deed vested in Henrichs no right in the land, or to the possession of any part thereof, although it may have been sufficient to transfer to him her unassigned right of dower, and from this we drew the conclusion that in taking possession of the land Henrichs would not thereby become a tenant in common with the heirs, so as to prevent the statute from running for that reason.
But Henrichs entered under a deed purporting on its face to convey the whole title to him, and warranting *438 and covenanting that the grantor had a good right and lawful authority to sell the land, and forever warranting the title so intended to be conveyed against all lawful claims of all persons, and by reason thereof he claimed the fee-simple title to all of the land, coupled with the right of possession, adversely to the heirs, upon whom the title and right of possession had been cast by the law. This amounted to a disseisin in fact, whereby the heirs were divested of their seisin, and of all right in relation thereto, except their right of entry and of property, or of action for its recovery. 2 Wood, Lim. 618. At all times since then the heirs have had a right of action, not only to recover that possession, but to establish their title; and it is immaterial what. Henrichs may have been able to accomplish in a court of equity upon a claim he has never asserted, has not pleaded, and never relied upon.
The motion is therefore denied.
Reversed: Rehearing Denied.