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land or the half or other lesser part thereof, and then openly doth declare the quantity and the certainty of the land which she shall have for her dower. Here be two things that the law doth delight in, viz. : To have this and the like openly done; second, to have certainty, which is the mother of quiet and repose, and this word (moiety), above said to be intended of the half in certainty, and not of the moiety in common, which clearly appeareth in that here Littleton saith the quantity and certainty of the land :" Coke on Lit., title Dower, sect. 39.
So dower ex assensu patris must have the same quality of certainty. It must be “ of parcels of his father's lands or tenements with the assent of his father, who after assigns the quantity and parcels. In this case, after death of the son, the wife shall enter into the same parcel, without the assignment of any : Coke Lit., title Dower, sect 40. Jointure was as certain as dower ad ostium ecclesiæ or ex assensu patris. It was more secure and safe than either of these. It was, like them, an establishment of dower by the husband, and better than cither of these, she might enter into it, after the death of her husband, and not be driven to her action. This was doubtless for the reason that it was evidenced by a conveyance in writing. In Vernon's Case, 4 Coke 1, the leading one on the subject, it is said, “that dower ad ostium ecclesiæ and ex aseensu patris concluded the wife of her dower, if she entered into the land so assigned to her, after the death of her husband, for these being in such form as the law requires to be dowers in law, an assignment of dower, when the busband was sole seised, cannot be made of the third or fourth part in common, but ought to be in severalty.” 1 Thomas's Coke 597.
At common law it was imperative as a requisite of dower that the husband should be sole seised. Upon estates held in joint tenancy no dower would attach : Lit., sect. 45; 1 Scribner on Dower 257. So stringent was this rule, that where one joint tenant aliened his share, destroying the possibility of survivorship and severing the tenancy, the widow of the alienor could not claim dower: 4 Kent 37; Coke Lit., sect 31 b. The reason for this rule is obvious, and applies with equal force to a jointure. The sole seisin of the husband was indispensable, because only in such case could dower be assigned by metes and bounds, and as jointure was in lieu of dower, the same qualities as to the estate granted necessarily existed. It must be so assigned as to be held in severalty without an action at law. By the terms of our statute jointure must be an estate, conveyed as jointure. If from any defect it fail to be a legal bar to dower, and the widow elects to take advantage of this defect, and demands her dower, the estate conveyed as jointure shall cease and determine. In what sense, then, is this word jointure used ? It was a term which, for more than two hundred years, had had a fixed legal signification. Long prior to the adoption of the Act of 27 Henry VIII. jointures were in common use, and their meaning well understood. That statute, from which ours is almost literally borrowed, has been carefully considered in many reported cases by the most profound jurists of England. The repeated discussions, and the long line of decisions, growing out of this act, and similar ones in most of the states of the union, were doubtless familiar to our ancestors, who incorporated a like provision in the statutes of Ohio. They were men well versed in the common law, and especially that part relating to real estate. It is well established as a rule of interpretation, that where particular words or phrases have in law an acquired, fixed legal signification, and are thus incorporated into a statute, the legal presumption is that the legislature meant to use them in this legal sense: Turney v. Yeoman, 14 Ohio 207. Where a statute speaks of a deed, it must be taken in its technical sense, as understood at common law—that is, a writing sealed and delivered by the parties: Moore's Lessee v. Vance, 1 Ohio 10. So, also, where the word mortgage is used, it will be assumed that it is used in its ordinary legal signification, as well understood at common law, and that the legal liabilities incident to it were understood to follow. Per Scott, J., Medical College v. Zeigler, 17 Ohio St. 52.
Guided by this rule of interpretation, and by the light of the authorities and decisions referred to, we are led to conclude that the estate to be conveyed as jointure must possess those prime requisites enumerated by LITTLETON and COKE, which we have quoted—that there must be such an estate as the widow can enjoy in seyeralty. It must declare the “quantity and certainty" of the lands she shall have—the “two things that the law doth delight in"—first, to have it done under our statute, by a solemn deed of conveyance; and, second, to have “in certainty, which is the mother of quiet and repose." And Lord COKE adds, speaking of certainty in dower at the church-door, and commenting on LITTLEton's text : “ This word moiety means a half in certainty, not of moiety in common."
In Winch's Cases, p. 33 (London, 1657), it is said, to be a good jointure, a wife must have a sole estate, after the death of her husband. In the case at bar, the conveyance is fatally defective in this primo quality of certainty. It conveys an undivided one-thir:l for life. The widow can not enter and enjoy in severalty ; sho would be driven to her action at law to have it assigned and set apart to her. One of the prime reasons for making a jointure was to give the wife the right, without her action, to enter and be sole , possessor. Again, to constitute a good conveyance of an estate, the deed must not only be duly executed, but it must be delivered. We therefore hold that this antenuptial contract, for the reasons stated, is not a good statutory bar.
II. The next inquiry is, was it good as an equitable jointure ? What constitutes an equitable bar is a question fruitful in decisions. Much learning and many conflicting decisions can be found in the books. The substance of all the decided cases is that any provision made before marriage, whether of lands and tenements, goods and chattels, or whatever description of property, that constitutes a valuable consideration, if fair, reasonable, and just, as between the parties, in view of all the circumstances of the case, at the time the contract was made, will, in equity, be supported as a good equitable jointure : Miller's Ex’r v. Miller, 16 Ohio St. 532 ; 2 Scrib. on Dower 385-401. Each case must be determined on its own particular facts and equities. Looking at all the facts disclosed by this answer, and the absence of averments, we have arrived at the conclusion that this contract is not, in equity, a bar. It conveys less than one-tenth of the real estate; no value is stated; it was only for life, in less than one-third of the whole; nothing was ever done to put her in possession ; no acceptance by her, or part performance; and no facts stated to show that it was fair, reasonable, or just to her. It has been an axiom, accepted for ages, that dower was to be favored ; that no widow should be barred of that ancient and cherished right, unless
1. There was settled upon her, in strict conformity to law, an estate, as jointure, possessing all those requisites already pointed out; or,
2. There were such adequate provisions made, in lieu of dower, as, under all circumstances, was fair, reasonable, and just.
III. As to estoppel. Neither do we think the petitioner cstopped. She has done no act during or since coverture, that amounts to an estoppel. Her antenuptial covenant to accept this conveyance in lieu of dower cannot have the effect to release her dower. In the case of Hastings v. Dickinson, 7 Mass. 155, the court says: “. This leads us to the second ground, viz., that the defendant's covenant ought to have the effect of a release of dower. But this effect cannot be admitted on any correct legal principle. It is true that a covenant never to prosecute an existing demand . shall operate as a release to avoid circuity of action. But a release of a future demand not then in existence is void. Now in this case, the settlement being executed before marriage, the demand of dower had no existence, the same being inchoate.” In the case of Vance v. Vance, 8 Shepley (Maine) 364, the court say: 6. There can be no estoppel by executory covenants not to claim a right which is first to accrue afterward. The covenants of the wife with the husband before marriage, that she will not claim dower in his estate can not operate by way of release, estoppel, or rebutter to bar her of her dower."
The judgment of the Superior Court is therefore affirmed.
Scott, Chief Judge, DAY, Whitman and WRIGHT, JJ., concurred.
Supreme Court of Missouri. MICHAEL HANNON ET al, 1. THE COUNTY OF ST. LOUIS ET AL.
The rule that counties, being political sub-divisions of the state, are not liable for the laches or misconduct of their servants, has no application to a neglect of those obligations incurred by counties when special duties are assumed or imposed on them.
Thus, where the county of St. Louis made a contract for laying water-pipe to the county insane asylum, the work being done under the supervision of the county engincer, and while a trench was being dug in the grounds of the asylum, it caved in and killed one of the workmen, it was held that the duty in which the county was engaged, was not one imposed by general law upon all counties, but a selfimposed one; that quod hoc the county was a private corporation, engaged in a private enterprise (more especially as the work was being done on its own property), and governed by the same rules as to its liability. In such case it is immaterial, whether the performance of the work is voluntarily assumed in the first instance, or is a special duty imposed by the legislature, and assented to by the county
And municipal and quasi corporations are, under the above circumstances, subject to the same doctrine of liability.
ERROR to St. Louis Circuit Court.
The petition alleged that in September 1872, the county of St. Louis entered into a written contract with IIenry Luken, whereby the latter agreed to lay a water pipe from the main pipe, at the intersection of Lafayette and Grand avenues, along certain streets to the grounds of the County Insane Asylum, thence through those grounds to a connection with the cistern of the asylum, in order to supply the same with water ; that the work was to be done to the satisfaction of the county engineer; was to be superintended by him, and that such precautions should be taken in the progress of the work, and in shoring such trenches as might be dug, in order to prevent accidents to life and limb, as the engineer should direct; that the width of the trench for the reception of the pipe was to be two and a half feet, and to vary in depth with the grade of the street; that the sides of the trench were to be shored with plank and timber; that the county reserved to itself the superintending control over the work, and the right to discharge any workman the contractor might employ; that in December 1872, the contractor had, in pursuance of the work, and under the direction of the engineer, dug on the grounds of the County Insane Asylum, then owned by the county, a trench thirty feet in depth, and not exceeding two and a half feet at the bottom; that by reason of this and of not being properly shored, the trench was dangerous, and known to be so by both the engineer and the contractor; that the minor son of plaintiff, Patrick Hannon, was in the employ of the contractor, engaged in laying the pipe along the bottom of the ditch, and, while the engineer was present, superintending and directing the work, the sides of the trench, without any fault or negligence on the part of Patrick Hannon, in consequence of the wrongful act, neglect and default of the engineer and of the contractor, in failing to properly shore the sides thereof, caved in and suffocated the son of plaintiff, &c.
A demurrer to this petition, on the ground that the “ county is a political sub-division of the state of Missouri, and not a body corporate, either private or municipal, liable for the laches or misconduct of its servants or employees,” was sustained by the Circuit Court.
Bakewell & Farish, for plaintiffs in error.-The case at bar is one in which the county was acting in a private capacity and was