Wilcox v. Randall

By the Court, Gridley, J. This is a suit for dower, and the defence is that in 1811 the lands in which dower is claimed were exchanged by the husband of the plaintiff, with one Bud-long under whom the defendant holds, for another farm of 75 acres, and that the defendant did not within one year after the death of her husband make her election to take her dower in the lands given in exchange. It is conceded that she made no election within the year; and it follows, therefore, that if these lands were exchanged, within the legal meaning of the term, the plaintiff can not recover. (1 R, S. 740, § 3. Rev. note to this section, 3 Id. 596. 4 Kent, 59.) But the plaintiff denies that an exchange, in the legal sense of the term, took place. An exchange is. defined by Blackstone to be “ a mutual grant of equal interests, the one in consideration of the other.” “ The estates exchanged,” h.e adds, “ must be equal in quantity; not of value, for that is immaterial, but of interest; as fee simple for fee simple, a lease for twenty years for a lease for twenty years, and the like.” (2 Bl. Com. 323, and cases cited in the notes.) The same rule is laid down in 1 Hil. Abr. 70, § 2; Id. 310, 311. It was suggested on the argument, that the word as used in our statute ought to receive a more [639] liberal interpretation than that derived from the common law definition. But a reference to the revisers’ note before cited shows that it was the object of the framers of the statute to enact the common law riile which is found in 1 Cruise, 148, § 3, and in 1 List. 31 b. The common law rule must have been adopted with reference to the common law definition of this species of conveyance. We must therefore inquire whether the lands in question were conveyed by the husband of the plaintiff, and the 75 acres were conveyed to him, by that species of conveyance called an exchange. (1.) There was no exchange of equal interests. It was not even an exchange of land for land. If the rule is to prevail, where half of the consideration, as here, consists of money or personal property, the other half being land, it may also prevail when a thousand acres of land are exchanged for a single acre of land and nine thousand dollars in money. This was not therefore “ a mutual grant of equal interests, the one in consideration of the other.” (2.) No legal title has ever been conveyed, of the 75 acres. The assignment of John Rhoades to John Budlong of a lease in perpetuity, subject to the condition of paying a stipulated rent, without seal, conveyed no legal title. The cases of Jackson v. Wendell, (12 John. 355,) and Jackson v. Wood, (Id. 73,) are conclusive on this point. Again; the title to the premises, if the assignment had conveyed it to John Budlong, descended to his heirs, and could not be conveyed by his executors unless under a legal power contained in the will of John Budlong, of which there is no proof. Nothing therefore but an equitable interest—a mere right to compel a legal conveyance—ever passed to Wilcox. A transfer of a mere equitable interest in 75 acres of land, for 11 acres and $700 in other property, cannot satisfy the requirements necessary to constitute a legal exchange. Again; it may be added that neither the assignment of the executors of John Budlong to Wilcox, nor the undelivered and cancelled deed of John Budlong, bearing date the 18th of April, 1811, purports to have been made upon an exchange of lands. A suggestion whs made on the argument, that a conveyance [640] would be presumed after the great lapse of time that has intervened since the exchange of possessions. To this argument there are two answers. (1.) A mutual grant at the time, even if presumed, would not be compatible with the evidence, which shows that either $500 or $700 in money or property was given, over and above the 11 acres of land. (2.) No such presumption could be entertained till the purchase price was paid, which did not take place, as David Budlong testifies, till April, 1825. Again; John Budlong was then dead, and David was his son and one of his heirs, and he has no knowledge of any other conveyance to Wilcox except the assignment executed by himself and his co-executors. To presume a conveyance, other than this assignment, in the face of this evidence, would be stretching the doctrine of presumptions to a dangerous extent. It is not a case which authorizes a presumption of two legal conveyances. Two defective conveyances, one to John Budlong, and one to Wilcox, have been proved ; and there is no reason to believe that any others were ever executed. There must be a new trial; costs to abide the event.