Grant v. Parham

The opinion of the court was delivered by Williams, Ch. J. It is admitted the plaintiff must recover in this case, unless she is prevented by her deed, executed on the 14th day of October, 1825, after the death of her husband. In that deed she conveyed, by quit-claim, all her right and interest in lot No. 11, and particularly her right of dower, to one Brown, under whom the defendant claims. Her dower was not, at that time, assigned to her, but afterwards, on the 14th of July, 1826, was duly assigned to her, and contains the land sued for. By the statute, the widow is entitled to dower in one-third part of the real estate of whieh the husband died seized. At common law, she had a right of dower in all the estate of which her husband was seized, during coverture, which any issue she might have had by him could, by any possibility, inherit. In New England, where the rule of the common law prevailed, it was always considered that the wife might relin [653] quish, in the lifetime of the husband, by joining with him in a deed. This was not because she was estopped by any covenants contained in the deed of herself and husband, as she was incapable of entering into a covenant, but because she was considered as having such an interest as she could release and convey to the grantee of her husband. At common law, she could release her right of dower, though she could not invest another with a right to maintain an action for it. I Cruise, 159; Jackson v. Vanderheyen, 17 Johns. R. 168. In Connecticut she is considered as having, after the death of the husband, a vested interest in common with the heirs, which does not depend upon her dower being set out; and, although our statute is similar to the statute of Connecticut, it is not necessary for us to say whether the same rule would be here recognized, or that, before assignment, she could either maintain or defend an action of ejectment, simply on her right of dower, without any assignment. But in any view of the subject, whether she is considered as having only a right of action, or a vested interest, she may bar herself of her right of dower in any particular lot, by deed executed after the death of her husband. Moreover, by the deed which she executed to Brown she covenants with him, his heirs, and assigns, that, from and after the executing the deed, she would have and claim no right in or to the remised, released, and quit-claimed premises. By the deed and the covenant therein, she is estopped from setting up any claim of dower in the premises thus conveyed. The judgment of the county court is reversed, and a new trial granted.