ÆäÀÌÁö À̹ÌÁö
PDF
ePub

to be limited to the case of trusts in which the husband took a beneficial interest. It could not be applied to trust estates in which the husband was seised in fee of the dry technical title, by way of trust or power, for the sole interest of others. In all the other states, except those which have been mentioned, and except Louisiana, where the rights of married women are regulated by the civil law, and except also Georgia, where tenancy in dower is said to be abolished, the strict English rule on the subject of trust estates is presumed to prevail.

Though the wife be dowable only of an equity of redemption, when the mortgage was given prior to her marriage, or when she joined with her husband in the mortgage, she is, after her husband's death, if she claims her dower, bound to contribute rateably towards the redemption of the mortgage. If the heir redeems, she contributes by paying, during life, to the heir, one-third of the interest on the amount of the mortgage debt paid by him, or else a gross sum, amounting to the value of such an annuity. In England, the widow entitled to dower in an equity of redemption in a mortgage for years, has also, upon the same principles applicable to that analogous case, the right to redeem,

In North Carolina, on the other hand, it is said to have been more than once decided that the widow was not entitled to dower in her husband's equity. Henderson, J., in 1 Badger & Devereux's Equity Cases, 196.

• See Rowton v. Rowton, 1 Hen. & Munf. 92. In Alabama, the widow is entitled to dower in lands held for the use, or in trust for the benefit of her husband, provided she would be entitled if the estate was a legal one. Laws of Alabama, 247, sec. 9. So in Mississippi. R. C. of Mississippi, 1824.

In the case of Robinson v. Codman, 1 Sumner, 129, Judge Story held, at the Circuit Court in Maine, that an estate held by the husband in trust, was not liable to the dower of his wife. See also Cooper v. Whitney, 3 Hill, 101. S. P.

Swaine v. Perine, 5 Johns. Ch. Rep. 482. Gibson v. Crehore, 5 Pick. Rep. 146. Bell v. Mayor of New-York, 10 Paige, 49. House v. House, Id. 159, vide infra, 75.

*by paying her proportion of the mortgage debt, and to hold over until she is reimbursed."

As to the interest of a widow of a mortgagee, the case, and the principles applying to it are different. A mortgage before foreclosure is regarded by the courts in this country, for most purposes, as a chattel interest; and it is doubted whether the wife of the mortgagee, who dies before foreclosure or entry on the part of her husband, though after the technical forfeiture of the mortgage at law by non-payment at the day, be now, even at law, entitled to dower in the mortgaged estate. The better opinion I apprehend to be, that she would not be entitled as against the mortgagor. The New-York Revised Statutes have settled this question in New-York, by declaring that a widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he acquired an absolute estate therein during the marriage.d

a Palmes v. Danby, Prec. in Ch. 137.

b Stewart v. Waters, 1 Caines' Cas. in Error, 47. Jackson v. Willard, 4 Johns. Rep. 41. Huntington v. Smith, 4 Conn. Rep. 235. Eaton v. Whiting, 3 Pick. Rep. 484.

• Vol. i. 741, sec. 7.

d By the absolute estate, in the revised code, more was intended than the estate which is technically absolute at law on default of payment at the day. I presume the word absolute is here to be taken in the strongest sense. In Runyan v. Mersereaux, 11 Johns. Rep. 534, it was held, that the freehold was in the mortgagor before foreclosure or entry. If the mortgagee enters without foreclosure, the freehold may then be shifted in contemplation of law; but still the mortgagee has not an absolute estate, so long as the equity of redemption hangs over that estate and qualifies it. According to the English law, the wife of the mortgagee would be entitled to her dower, in such a case, from the heir of the mortgagee, who died in possession, though the es tate in dower would be defeasible, like her husband's estate, by redemption, on the part of the mortgagor. The words of the new revised statutes were probably intended to stand for an estate with the equity of redemption finally foreclosed and absolutely barred. Upon that construction the restriction has been carried beyond the English rule, and I apprehend, beyond the necessity or reason of the case.

*II. In what way dower will be defeated.

Dower will be defeated upon the restoration of the seisin under the prior title in the case of defeasible estates, as in the case of re-entry for a condition broken, which abolishes the intermediate seisin. A recovery by actual title against the husband, also defeats the wife's dower; but if he give up the land by default, and collusively, the statute of Westm. 2, c. 4, preserved the wife's dower, unless the tenant could show affirmatively a good seisin out of the husband and in himself. This statute, according to Perkins, was an affirmance of the common law. The principle is, that the wife shall have dower of lands of which her husband was of right seised of an estate of inheritance, and not otherwise. If, therefore, a disseisor die seised, and his wife be endowed, or bring her writ of dower, she will be defeated of her dower on recovery of the lands, or upon entry by the disseisee. And the sound principle of making the title to dower rest upon the husband's right, is carried so far as to allow the wife to falsify even a recovery against her husband, upon trial, provided the recovery was upon some other point than the abstract question of right. But under the complicated modifications of seisin, contemplated in the ancient law, and which are collected and digested by Perkins, in his excellent repository of the black-letter learning of the Year Books, the

Perkins, sec. 311, 312. 317.

Perkins, sec. 376. It was, however, re-enacted in totidem verbis in New-York, 1787. Laws of New-York, sess. 10, c. 4, sec. 4. And it is in substance adopted and enlarged by the New-York Revised Statutes, vol. i. 742, sec. 16, which declare, that "no judgment or decree confessed by or recovered against the husband; and no laches, default, covin, or crime of the husband, shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto." See, also, to S. P. Statute of Ohio, 1824. Chase's Statutes, vol. ii. 1315. Berkshire v. Vanlore, Winch. 77.

< Litt. sec. 393. Co. Litt. 240, b. A Perkins, sec. 381.

seisin of the husband was sometimes defeated so as to bar dower, though the right remained in him; and in other *cases, the dower would be preserved though the seisin was defeated, by reason of some prior distinct seisin which had attached in the husband.

*49

If the husband be seised during coverture of an estate subject to dower, the title will not be defeated by the determination of the estate by its natural limitation; for dower is an incident annexed to the limitation itself, soas to form an incidental part of the estate limited. It is a subsisting interest implied in the limitation of the estate. Thus, if the tenant in fee dies without heirs, by which means the land escheats; or if the tenant in tail dies without heirs, whereby the inheritance reverts to the donor; or if the grantee of a rent in fee dies without heirs; yet in all these cases, the widow's dower is preserved. By the rules of the common law, dower will determine, or be defeated, with the determination of the estate, or avoidance of the title of the husband by entry as for a condition broken, or by reason of a defective title. So, dower will be defeated by the operation of collateral limitations, as in the case of an estate to a man and his heirs so long as a tree shall stand; or in the case of a grant of land or rent to A. and his heirs till the building of St. Paul's church is finished, and the contingency happens. Whether dower will be defeated by a conditional limitation, created by way of shifting use, or executory devise, is hitherto an unsettled and vexed question, largely discussed in the books. The estate

Perkins, sec. 379, 380. Park on Dower, 148.

b Bro. tit. Tenures, pl. 33, tit. Dower, pl. 86. Paine's case, 8 Co. 34. Jenk. Cent. 1, case 6, p. 5.

Jenk. Cent. supra. Preston on Abstracts of Title, vol. iii. 373. Butler's note, 170, to Co. Litt. 241, a.

The cases of Sammes v. Payne, 1 Leon. 167. Goldsb. 81. Flavill v.

*50

of the husband is, in a more emphatical degree, overreached and defeated by the taking effect of the limitation over, on these conditional limitations, than in the case of collateral limitations; and the ablest writers on property law are evidently against the authority of the case of Buckworth v. Thirkell, and against the right of the dowress when the fee of the husband is determined by executory devise, or shifting

use.

As a general principle, it may be observed, that the wife's dower is liable to be defeated by every subsisting claim or encumbrance, in law or equity, existing before the inception of the title, and which would have defeated the husband's seisin. An agreement by the husband to convey before dower attaches, will, if enforced in equity, extinguish the claim to dower. In equity, lands agreed to be turned into money, or money into lands, are considered as that species of property into which they were agreed to be converted; and the right of dower is regulated in equity by the nature of the property in the equity view of it.

III. How dower may be barred.

Dower is a title inchoate, and not consummate till the death of the husband; but it is an interest which attaches on the land as soon as there is the concurrence

Ventrice, Viner's Abr. vol. ix. 217, F. pl. 1. Sumner v. Partridge, 2 Atk. 47, and Buckworth v. Thirkell, 3 Bos. & Pull. 652, n., are ably reviewed by Mr. Park; and the latter case, though decided by the K. B. in the time of Lord Mansfield, after two successive arguments, is strongly condemned, as being repugnant to settled distinctions on this abstruse branch of law.

Butler's note, 170, to Co. Litt. 241, a. Sugden on Powers, 333. Preston on Abstracts of Title, vol. iii. 372. Park on Dower, 168-186.

Greene v. Greene, 1 Hammond's Ohio Rep. 538. In that case the subject is ably discussed; and the whole volume is evidence of a very correct and enlightened administration of justice, in equity as well as in law. Coster v. Clarke, 3 Edward's N. Y. Ch. Rep. 47.

« ÀÌÀü°è¼Ó »