Robinson v. Moon

BRIOKELL, C. J. The wife’s inchoate right of dower, dependent on surviving her husband, is regarded as a valuable interest, incumbering the estate of the husband, which she may gratuitously renounce, or release to the alienee of the husband, on a consideration moving to herself only. — Hoot v. Sorrell, 11 Ala. 398; Bailey v. Litten, 52 Ala. 282. A purchaser from the husband, contracting for a title free from incumbrances, cannot be compelled to accept a title, which may be affected by the inchoate right of the wife, in the event of her survivorship. — Parks v. Brooks, 16 Ala. 529. A sim [245] pie, expeditious mode of barring tbe right, so that it will not embarrass the alienation of lands, and yet protecting the wife against imposition, fraud, or duress, it has been the purpose of the statutes to provide, from the earliest period of our legislative history. From time to time, privy examination of the wife, or her appearance before a court, as an essential requisite of the release or relinquishment of her inchoate right, has been dispensed with, until now, in the same manner in which the husband may convey his estate, the wife may release the right of dower. Without the aid of express statutory provisions, it is a vexed question, whether the release by an infant feme covert is void or voidable. The statute, to remove all doubt, and in pursuance of the policy of promoting alienation, expressly authorizes a married woman, whether of full age or not, to convey or release her right of dower. — B. C. § 1628. The mode of conveyance or release is by joining with the husband in a conveyance of the lands, or, subsequent to such conveyance, by an instrument in writing executed by her. In either case, her execution must be in the presence of two witnesses, and attested by them, or acknowledged before an officer having authority to take and certify the acknowledgment of deeds. — B. C. § 1626. When the release is by an instrument separate from the deed of the husband, it may be executed by her alone: it is not required that the husband shall join her in executing it. The words of the statute are, “executed by her,” and capacity to make the release is expressly conferred on her. The custom under the statute has been general, for the wife alone to execute the separate release, by which her dower is barred; and it cannot now be disturbed, without affecting titles to real estate. If we had, as we have not, doubts, that when, subsequent to the conveyance of the husband, the wife releases on a consideration moving to her only, her execution of the release is sufficient —is all the statute contemplates — we would feel bound to adopt the construction of the statute which has prevailed in practice. There can be no reason for the husband joining in the execution of the release, except as indicating his presence to protect the wife from deception or imposition. Against these, the statute guards, by requiring evidence that she freely and voluntarily executed the instrument, being informed of its contents. The release affects no interest or right of the husband, except to remove an incumbrance on the estate created by his conveyance, against which, most often, he covenants to warrant and defend. It operates on no estate of his in the lands, for it must be subsequent to the conveyance by which his estate passes. The words of [246] the statute are clear, and the practice has conformed to them. The release made by the appellant was properly executed. It was signed in the presence of two witnesses, who subscribed their names in testimony of the fact; and this is all the statute requires. The subsequent certificate of the justice of the peace is of no force. It was not intended as a certificate of probate, made by him officially, either on the acknowledgment of the appellant, or on proof by the subscribing witnesses. Being present at the execution, he makes a certificate of the facts, of his own accord. The execution was sufficient, and in all respects valid, when attested by the witnesses; and the subsequent unauthorized certificate of the justice, is a mere nullity. 2. Duress, fraud, or undue influence, inducing the wife into the execution of the release, is not proved, and cannot be lightly inferred. — Bailey v. Litten, supra. We have carefully examined' the evidence, and concur in the opinion of the chancellor, that it is not sufficient to show fraud, duress, or undue influence operating on the appellant. She may have been reluctant to execute the release, but she yielded to the persuasion of her husband and son, and accepted from the alienee of the husband the consideration for which she stipulated. Let the decree be affirmed.