French v. Lord

Yirgin, J. This demandant in her action against Crosby (61 Maine, 502,) having recovered her dower in the land held under levies numbered one and two in this record, being one-seventh and one-fifth or twelve-thirty-fifths of her husband’s former interest, now seeks to recover it in the remaining twenty-three-thirty-fifths. A portion of the land in which dower is here claimed was taken, after the death of her husband, by a railroad company for railroad purposes, and has been so occupied ever since. A widow is not dowable of lands taken for public use. And the reason is obvions. In all such cases a division of the estate thus taken would destroy it for the use to wliich it has been appropriated. Private interests must give way to the public convenience and necessity,- — rights in dower as well as any other interest in real estate. It has been well held that, when the estate is taken before the decease of the husband, the value of the widow’s inchoate right of dower is deemed too uncertain to admit of compensation ; that the husband must be regarded as the owner of tlie entire estate ; and that as such he is entitled to full compensation for it. But immediately upon the husband’s decease, her right of dower being then consummated, no reason is perceived why she, like any other party, should not be entitled to compensation for her interest. 1 Scrib. Dow. 554. 1 Wash. R. Prop., c. 7, § 37, and cases cited. Having a valuable interest, she had her remedy; but she cannot obtain it in this action against these defendants. — 542 — Is she entitled to dower in the whole or any portion of the residue ? The attachments numbered three, four and five were made prior to the conveyance by the demandant’s husband to Eben, of September 28, 1886. The executions, issued on the judgments recovered in the several actions on which these attachments were made, having been seasonably and regularly extended upon the land attached, the levies by relation operated as statute conveyances of the dates of the respective attachments. Nason v. Grant, 21 Maine, 160. And by the express provisions of the statute a married woman shall not be deprived of dower by a levy on her husband’s real estate. R. S. 1841, c. 94, § 48. French v. Crosby, 61 Maine, 502. It is true that the demandant joined in her husband’s deed of September 28, 1836, and thereby barred her right of dower “in the estate conveyed by her husband.” E. S. 1841, c. 94, § 9. But it is also true that “ the estate conveyed by her husband ” by that deed was not in fact his entire one-third interest, though such was the description of the premises in the deed; for by the first two levies 12-35, and by the next three 183-280, making 279-280 of his one-third, were conveyed to the levying creditors; and there remained only 1-280 to be conveyed by the deed and in which her dower could thereby be barred. Moreover, this statute bar, instead of being an “ utter extinguishment of the right of dower forever, for all purposes and as to all persons,” as held in some states (Morton v. Noble, 57 Ill. 176. Elmeredorf v. Lockwood, 57 N. Y. 322), in this state and several others, on account of the peculiar nature of the right, operates against the relfeasor by estoppel only, and therefore in favor of those only who are parties or privies to the release. French v. Crosby, supra. So that these defendants cannot invoke any release in the deed as to the land covered by the above mentioned levies, for the double reason that the deed not conveying the land, the release did not pertain to it; and were it otherwise, the defendants not holding their title to that land under, but in spite of, the deed, are not privies. Our conclusion, therefore, is that the demandant is entitled to recover her dower in 183-280 — 543 — of her husband’s former interest covered by levies three, four and five, or 61-280 of the whole. Is she entitled to recover in the remaining 1-280 conveyed by her husband’s deed of September 28, 1836, in which she joined and released her dower to Eben % The first five attachments against the demandant’s husband ripened into levies, taking the dates respectively of the former. The premises, including the 1-280, were then held by Eben and the levying creditors as tenants in common. Strickland v. Parker, 54 Maine, 263. So much of the common estate as the defendants hold under a valid levy against Eben, dating subsequent to September 28, 1836, is free from the incumbrance of the demandant’s right of dower by virtue of her release to Eben and the defendants’ privity; but as to any one or more of such levies as shall be found to be invalid, or to which they had not, prior to the commencement of this action derived title, they not being privies cannot invoke the estoppel against the demandant; and as to all such she is entitled, under the pleadings, to recover, with an exception hereafter to be noticed. If the several attachments against Eben were valid, his deed to the demandant, executed on December 26, but not recorded until December 27, 1836, whether possessing any inherent force or not, becomes immaterial to the decision of this ease, inasmuch as all of the attachments and (by relation) levies were made prior to the registration of the deed. Attachments. It is contended that the attachments in favor of Mustard and Roberts, though valid on August 20 and November 28, when respectively made, became void when the Stat. 1838, c. 344, became effective, for the reason that the writs contained a general money count, without any specification which the statute required should be annexed to the writs. Such was the effect given to this statute in Poor v. Larrabee, 58 Maine, 543. But by its terms the statute did not take effect until sixty days after approval, and it was approved March 23, 1838. The Mustard levy having been completed February 12, 1838, — more than three months before the statute became operative — the attachment could not of course be affected by it. — 544 — - Moreover, we are also satisfied that this statute did not affect the Roberts attachment. It is a familiar general rule that all statutes are to be considered as prospective, and are to be held not to prejudice the past transactions touching their subject matter, unless the contrary intention is clearly and unequivocally expressed. On recurring to the statute, instead of finding any such expression, the first section expressly limits the application of its provisions to attachments “ thereafter made ; ” while the provisions of § 4, invoked in this case, are made applicable only to the attachments mentioned in § 1, by the words “ attachments made as aforesaid.” And such was the express decision of the court in Smith v. Keen, 26 Maine, 411, promulgated in 1847. That decision quieted the titles of numerous estates depending on similar attachments of about the date of the statute; and though one member of the court, as then constituted, did not concur, we should deem it bad policy to overturn it after it had been so long acquiesced in. The objection that there were two special counts on one bill of exchange in the Chase writ is not within the spirit of the statute, and cannot avail the demandant. No objection is made to any other of the attachments. Levies. The Mustard levy having been made, as admitted by counsel, upon Eben’s land as he owned it before the demandant’s husband conveyed to him, she cannot be entitled to dower therein. The objection to the levies by Eaulkner, Chase, Towle and Parsons is that they are void for indefiniteness, — that there was set off in each case an uncertain estate, as in Rawson v. Lowell, 34 Maine, 201. But we do not so understand them. In the case cited, the levy took “ four-fifths of all the interest which Truxton held in the land jointly with J. C. Lowell and others,” without stating what part Truxton held, or what part of the whole was set off, or what territory the whole comprised. The court might well say, in relation to such a proceeding, that “ the levy of a fractional part of an uncertain estate in land is not sustainable.” In each of the lbvies in question, however, the whole common estate was described by metes and bounds, and declared by the appraisers to be held by the debtor in common with others, thus — 545 — rendering the territory certain instead of “ uncertain,” as in Rawson v. Lowell; and there a specified fractional undivided part of the whole is appraised as the property of the debtor and the same is set off to the creditor. We do not perceive why the objection raised to these levies is not fully answered, and why they are not saved under the provisions of R. S. of 1841, c. 94, §§ 10, 11, as construed in Swanton v. Crooker, 49 Maine, 458, and the cases which have succeeded that. The levy of Fiske & Bridge is much more full than the preceding, many facts stated therein being surplusage. The only remaining levies, — of Hinckley and Johnson — were made in the same manner. But it is further urged in relation to them that the title thereto never having been transferred to the defendants, they cannot set them up in defense. Such fact could not have been proved under the pleadings ; but the fact that the defendants were not tenants of the freehold as to the land covered by these two levies having been admitted without qualification, it thereby becomes available to them the samé as if pleaded and proved. The clause “ save any and all dower, real or contingent,” in the deed of Roberts to Mayo, and that “the said. premises are conveyed subject to all dower and right of dower of Mrs. French, which the grantee assumes,” in the deed of Palmer to Yeazie, are mere qualifications of the covenants. Th’ey do not so affect these defendants’ rights as to estop them as privies to the demandant’s releasee from setting up the release. Knight v. Mains, 12 Maine, 41, is not applicable to this ease. Our conclusion, therefore, is that the demandant is entitled to judgment for her first dower in the premises covered by levies three, four and five only, making the just deductions on account of the land held by Crosby in severalty, as well as of that taken and held by the railroad. By the terms of the report, the court is “ to decide in what portion (if any) the demandant is dowrable; and upon what principles the dower is to be assigned and damages to be assessed.” As before seen, the attempted alienation by the deed of September 28, 1836, failed as to the land covered by levies three, four — 546 — and five; but the levies took the title as of the date of the attachments, when the husband held as tenant in common. Dower cannot be assigned by metes and bounds in lands thus held. When dower in lands thus held is assigned by the probate court, ■ partition is first made and then dower is assign ed to the widow in severalty. R. S., c. 65, § 19. No express provision is made in R. S., c. 103, authorizing in totidem verbis an assignment of dower in lands thus held. But by § 1 every woman is entitled to her dower “ at the common law ” in lands of her husband to be assigned to her after his decease. And by § 16, when it is not set out to her by the heir or tenant, “ nor assigned to her by the probate court, she may recover it by a writ of dower.” After judgment it is to be “ set out by three disinterested persons, to be appointed ” as provided in § 23. There being no statute provision to govern the commissioners in assigning dower in lands held in common, they must look to the common law ; and that requires endowment by metes and bounds when the husband was seized in .severalty ; but when he was seized in common with others, her endowment must be in common ; for she being in, pro tanto, for her husband’s estate, cannot take it-otherwise than he had it. 1 Inst. 32, b. 34, b. 37, b. 1 Greenl. Cruise, Tit. VI, c. 3, § 10. Ib. Tit. XX, § 25. In other words, she is entitled to dower in 61-280 of the residue after deducting the land held by Crosby in severalty, together with that taken by the railroad, to hold in common during life. The demandant cannot share in the increased value, if any, caused by improvements actually made upon the premises since the statute alienations but she has the benefit of their natural rise in value. Mosher v. Mosher, 15 Maine, 372. Carter v. Parker, 28 Maine, 509. If, therefore, no improvements have been made since the husband parted with his title by the levies, the commissioners should assign to her such a fractional part of 61-280 of the residue above named as will produce an income equal to one-third part of the income which the 61-280 of such residue will produce, or 61-840 of such residue. But if improvements have been made which materially increase the income, then her share should be proportionally less. Whatever it shall prove to — 547 — bo, it must be set out to her to hold as tenant in common during her life. Damages for detention are to be assessed upon the same principles, the demandant to recover one-third of the annual income from September 9, 1871, one month after demand, to the date of the judgment. Though, in the absence of the stipulation in the report, the damages would be assessed only to the commencement of the action. E. S., e. 103, § 20. Judgment for demandant. Appleton, C. J., Walton and Danforth, JVT., concurred.