DOWER — JUDGMENT.

[Montgomery Circuit Court,

June Term, 1889.]

Shauck, Shearer and Stewart, JJ.

#### AUGUST J. SCHIML, ADM’R OF WENZ, v. MICHAEL SCHIML AND ANNA SCHIML.

1. Decree in Partition Fixing Widow’s Dower is a Judgment.

An. order of a court of this state fixing the annual value of a widow’s dower, and directing the sale of real estate subject thereto, is a judgment within the meaning of sec. 5810, Rev. Stat.

i. Statutes of Limitation do not Apply.

The rendition of such judgment is not the “accruing” of a cause of action within sec. 4979, Rev. Stat., and the statute of limitations does not apply to an action founded on such judgment.

Error to the Court of Common Pleas of Montgomery county.

*407The petition in the original action avers, in substance,-that on September 1, 1858, John Schiml and the said Michael Schiml were owners in common, in equal shares, of two lots in the city of Dayton; and that on September 5, 1858, said John Schiml died intestate, seized in fee-simple of the undivided one-hali of said realty, leaving said August J. Schiml his sole heir, and said Theresa Schiml his widow. That said widow married one Jacob Wenz, from whom she was subsequently divorced.

It is further alleged that on March 20. 1869, said Michael filed his petition in the superior court of Montgomery county, against said August J. Schiml and Theresa Wenz, for , a partition of said realty, and for the assignment of dower to the said Theresa as widow of John Schiml, deceased; that on May 7, 1869, said court finding that said Michael and August J. Schiml were respectively seized of an undivided one-half of said realty, and that said Theresa was entitled, to dower in the share of said August, ordered partition of said premises to be made, and that the dower of said Theresa be assigned by metes and bounds, if practicable; otherwise as of the rents and profits; that such proceedings were had that said dower was estimated at $81 per year during the natural life of said Theresa, and assigned accordingly, all of which was duly confirmed. That in pursuance of an order in that behalf, said premises were sold and confirmed to said Michael Schiml, subject to the dower estate of $81 per year of said Theresa; and that said Michael has ever since owned said realty. It is further alleged that said Theresa, on June 18, 188é, died intestate, and on March 27, 1888, said plaintiff was duly appointed and qualified as administrator of her estate.

That said*'dower has never been paid, and that no execution was awarded in said partition suit in case of failure to pay said dower, but the same was left a charge and lien upon said realty, and the owner a trustee for its payment.

The prayer is that said Michael Schiml be adjudged and decreed to pay said sum of $1,235, being the aggregate of said annual installments, with interest from the dates when said installments respectively became due; and that in default of such payment, said real estate be sold as upon execution — one-half thereof free of, and the other half subject to, the contingent right of dower of said Anna Schiml, wife of said Michael; and that plaintiff be paid the amount so to be .adjudged in his favor, with interest and costs, and for other relief.

The first defense of the amended answer, denies that said defendants, or either of them, is, or ever was, a trustee in respect to said dower charge; and as to $1,053 of the sum claimed, with interest on the respective installments making up said amount, avers that the cause of action in respect thereof did not accrue within six years next before the commencement of said action, and that the same, for that reason, is barred by the statute of limitations in such case made and provided.

A general demurrer to this defense was sustained; and this is the only error insisted on.

There was a finding for the plaintiff for the full amount claimed, with interest, and an order directing the sale of said premises', as prayed for, in default of payment of the amount so found due.

Corwin & Corwin, for plaintiff in error.

Gunckel & Rowe, for defendant'in error.

Shearer, J'.

The solution of the- question presented' by the record, requires the determination of the character of the final action of the superior court in the partition case.

It is true that that court rendered no judgment *in personam*against Michael .Schiml. It did, however, order the premises sold “subject to the dower estate *408of $81.00 per year of Theresa Wenz.” They were so sold, 'and the -sale confirmed to‘said Michael Sc'himl. This action co'nstitüted a judgment, because it was a “final determination of the rights ■ of 'the parties,” sec. 5310, Rev. Stat. Nothing further remained to be done except the enforcement of such rights.

If the case of Yearly v. Long, 40 O. S., *27,*were applicable, we should be cohstrained to hold that, as soon as Michael purchased 'the property, an implied obligation arose upon his part .to pay the dower charge. But that case is to be distinguished from this in that there the obligation arose from a mere legal implication; while‘here‘the lien sought to be enforced was created by judgment.

Miller v. Peters, *25*O. S., 270, decides that, in an action for partition no execution can issue against the parties to such action for 'the collection of a dower charge, but that’the proper remedy of the doweress-is by ac-tion'to enforce the lien upon the real estate charged. Just such relief’is sought by'the defendant in error — the enforcement of hér lien by action.

This being so, what provision of the statute of limitations, if any, is applicable?

Civil actions can only be brought within the period prescribed “after the cause of action accrues.” In'Other words, the cause of action must “accrue” before the statute of limitations will begin to run.

In Tyler’s Ex. v. Winslow, 15 O. S., 364, it was held that although a judgment of a court of this state is a good ground of action, its rendition is not the “accruing” of a cause of action within the meaning of the statute of limitations.

It seems, therefore, that the right of the defendant in error to enforce her lien is not affected by the statute of limitations.

The contention that the purchaser at partition sale is a trustee, to the extent of the widow’s claim for dower, for th.e payment-of the charge in that behalf upoq the lands, and that such trust is within sec. 4974, Rev. Stat., is not law in Ohio.

The decree in the court beloW is not, as we construe it, a judgment *in pertoriam;*but as some doubt in this regard;hás"been expressed, an-order will be made modifying said decree so as to 'require the sale of said premises within a day to be named unless the plaintiff in error, before that time, shall pay the amount found to be due; and the judgment so modified will be affirmed, with costs, but' without penalty.