¶1The opinion of the Court was drawn up by
¶2— The demandant at the death of her father, Thomas Stephens, in the year 1800, became entitled to one fifth part of his estate. The possession of her brother Charles, after the father’s death, does not appear to have been adverse to her or to the other heirs at law. As one of them he had a right to enter, and he soon after purchased of Henry Melius, the husband of the demandant, “ his right to the estate, and took a deed of it of him, in which his wife did not join.” Charles Stephens conveyed to Benjamin Riggs, in 1804, who, in 1827, conveyed to the tenant and another. The estate has been occupied under these conveyances ever since the execution of the deed by the husband of the demandant. She was married to Henry Melius before the death of her father, and continued under coverture until the year 1832. Since the death of her husband, she has caused an entry to be made upon the premises demanded. It is insisted, that her rights are barred by the statute of limitations. The statute, c. 62, § 3, provided, that no person, unless by judgment of law, should make entry into' lands but within twenty years next after the right or title to>do so first descended or accrued. And it allowed a feme covert ten years after the expiration of the twenty years. When did the right of the demandant to make entry upon these premises first accrue 1 Her husband *205was entiiled to the usufruct during life and could convey the the same. The entry of his grantee, Charles Stephens, was rightful, and he could legally convey to Riggs, who was entitled to possess and occupy the estate conveyed to him. The attempt of Charles Stephens to convey the whole fee did not deprive his grantee of the right to hold so much of if as he might legally convey. The demandant could not lawfully eater or interrupt that possession during the life of her husband. And she has entered within twenty years after her first right of entry accrued, and is entitled to recover. And such was the decision in the case of Bruce v. Wood, 1 Met. 542.
¶3If she and her husband had been disseised during the coverture, they would have had a right to enter immediately upon the disseisor and from that time the statute would have commenced running against the husband ; and against the wife also, as decided in the case of Melvin v. The Proprietors of Locks and Canals on Merrimack river, 16 Pick. 161. In that case it is said, “ it is true, that if Kittridge [the disseisor] had held under the husband, the wife would have had no right to enter.”
¶4The division of the estate among the heirs, commenced by virtue of proceedings in the Court of Probate, does not appear to have been completed and accepted in that court, so as to become binding upon the heirs as a partition according to the statute. In the case of Hathaway v. Clark, 5 Pick. 490, the Court said, that “ as the records apparently are entire and no loss of any of the papers in the probate office is suggested, we cannot, even after the lapse of more than thirty years, presume that any decree passed, or that any notice was given, which does not appear.” There is no proof in this case of any loss of papers or records. Those who assented to it in writing and their grantees by the continued occupation accordingly may be bound by it. Riggs professes to sign for the husband of the demandant, but there is no reason to conclude that he had any other authority, than what lie had acquired by the conveyances of his interest. And there is no assent to it by any one entitled to represent the rights of the demandant or to bind *206her. No one can have acquired a title as against her by disseisin, and there is no legal division. She is therefore entitled to recover one undivided fifth part of the premises demanded.