Elmendorf v. . Lockwood

During the lifetime of the husband, the wife has an inchoate right of dower in all the lands of which he becomes seized. This right is not an estate in the land, but is a mere contingent interest which attaches to the land as soon as there is the concurrence of marriage and seizin. This interest becomes fixed and certain upon the death of the husband, his wife surviving; and after assignment of the dower, becomes a freehold estate in land. During the marriage, no act of the husband alone could, at common law, bar or extinguish this interest; and the usual mode of accomplishing this end, in England, was, by husband and wife uniting in levying a fine or suffering a common recovery. (2 Bl. Com., 137; 4 Kent's Com., 51.) The usual way of barring dower in this country, by the voluntary act of the wife, has always been by her joining with her husband in a deed of conveyance of the land properly acknowledged. (4 Kent, 60; 1 Washburn on Real Prop., 199.) This mode of doing it was, at an early day in this State, recognized by statute (2 R.L., 57, 59, §§ 4, 10); subsequently embraced in the Revised Statutes (1 R.S., 742, § 167), which provide "that no act, deed or conveyance, executed or performed by the husband, without the assent of his wife, evidenced by her *Page 325 acknowledgment thereof, in the manner required by law to pass the estates of married women," shall prejudice her right to her dower, or preclude her from the recovery thereof, if otherwise entitled thereto. The fair inference from this provision is, that, if she unites with her husband, and thus gives her assent in the mode prescribed by law, she is thereafter precluded from recovering her dower; and such has always, I believe, been the general understanding of the profession, in this State. When she has united in the conveyance her dower is said to be barred, relinquished, extinguished, removed. Such is the language of Kent, and other legal writers. Judge WILLARD, in his work on real estate (p. 61), says: "The inchoate right to dower is, in this State, an incumbrance upon the estate of her husband, which is usually removed by her uniting with him in the deed, and acknowledging the execution thereof." And (at page 64): "The object of uniting the wife with the husband, in his conveyance of land to a third person, is, to extinguish her inchoate right of dower." During coverture, the wife's inchoate right of dower is incapable of being transferred or released, except to one who has already had, or by the same instrument acquires an independent interest in the estate. Hence, when the deed of the husband is for any reason void, or is set aside or superseded, so as to become inoperative, the wife's dower, although she joined in the conveyance, is not barred. (Malloney v. Horan, 49 N.Y., 111.) But in all cases, when the wife unites with her husband in a conveyance, properly executed by her, which is effectual and operative against her husband, and which is not superseded or set aside as against him or his grantee, her right of dower is forever barred, and extinguished, for all purposes and as to all persons; and to the contrary of this proposition our attention has been called to no authority in this State. It is claimed, however, on the part of the plaintiff, that inasmuch as the wife has no estate in the land, nothing but a contingent interest, her deed cannot operate as a conveyance, *Page 326 but simply by way of estoppel; and hence, that it is binding upon her, only, in favor of the grantee and those who hold under him as privies in blood, law or estate, in whose favor only the estoppel runs. I deny that her deed can operate only by way of estoppel. Under the law, as it has always been understood and administered in this State, her dower is released and extinguished, and the whole estate released therefrom is vested in the grantee. But if we admit that the deed can only operate against the wife, by way of estoppel, during the lifetime of the husband, we reach the same result. Whenever a conveyance of a contingent interest operates only by way of estoppel, as soon as the contingency has happened and the estate becomes certain and vested, it feeds the estoppel, and what was before an estate by estoppel only, becomes an estate in interest, and of the same effect as if the contingency had happened before the conveyance was made. (Rawlin's case, 4 Coke, 52; Weale v. Lower, Pollexf., 54; Trevivan v. Lawrence, 6 Md., 258; Vick v.Edwards, 3 P. Wms., 372; Doe v. Oliver, 10 Barn. Cress., 181.) After the death of the husband, the widow's right to dower is no longer contingent; she then has a certain interest in the land which she can release to the owner of the fee by any conveyance properly executed to pass such an interest. If she has, before the death of her husband, united with him in a conveyance — conceding that such a conveyance at the time of its execution operated, as against her, only by way of estoppel — at his death, the contingency having ceased, and her interest having become certain, the estoppel is fed, and her interest is released as effectually as if she had been a widow when her deed was executed. In this case, therefore, upon the death of her husband, the plaintiff had a certain interest in the surplus moneys, which she could assign or release, and which could have been reached by her creditors in equity. (Tompkins v. Fonda, 4 Paige, 448;Stewart v. McMartin, 5 Barb., 438; Moak v. Coats, 33 id., 498.) And this interest became vested in Van Vechten as effectually as if she had assigned or released it to him after she became *Page 327 a widow. She, therefore, had no cause of action against the defendants. The case of Hoogland v. Watt (2 Sand. Ch., 148), is an authority directly in point, sustaining the conclusion I have reached. In that case W. being seized of lands subject to a mortgage which had not been executed by his wife, conveyed them to D., his wife joining him in due form. D., subsequently, reconveyed them to W., and it was held that the wife's inchoate right of dower was extinguished by the deed to D., and was not restored, as against the mortgage, by the reconveyance; and that she was dowable of the equity of redemption only. If, in that case, the deed to D. could only operate by way of estoppel, then the mortgagee, an entire stranger to that deed, and in no way in privity with D., could not have had the benefit of the estoppel, and the wife would have been entitled to dower in the whole premises, instead of the equity of redemption only; and hence, the learned vice-chancellor must have held that her dower interest was absolutely extinguished by that conveyance. That case has been reported twenty-seven years, and yet, so far as I can discover, has never been criticised or questioned. It is the decision of an able judge; and having been unchallenged for so long a time, is entitled to respect as an authority for the defendants. The judgment must, therefore, be affirmed, with costs.