Madigan v. Walsh

Dixon, O. J. I have had some difficulty in coming to a conclusion in this case, not however upon the- question whether an inchoate right of dower is such an interest in the land as will' enable a married woman to maintain an action like this, but upon the question whether Mrs. Madigan has a right of dower at all in the land described in the complaint. “Dower,” says Chancellor Kent, “is a title inchoate, and not consummate until the death of the husband ; but it is an interest which attaches oh the land as soon as there is a concurrence of marriage and seizin.” 4 Kent’s Com., 50. It has beén compared to a life estate vested in one person, to take effect only in case he survives another. The right to enjoy the estate is but a possibility. He may or he may not survive. If he do survive, the right becomes perfect. 4 New York R., 99. An inchoate right of dower is such a title as will authorize a purchaser who has contracted for a - good and lawful title, to refuse to perform his contract. Parks v. Brooks, 16 Ala., 529; 17 id., 298; 23 id., 616. The relinquishment of such a fight of dower is a good consideration for notes given Tor purchase money and payable to the married woman. Caldwell v. Bower, 17 Mo., 564. I think it clear, therefore, that the wife has an interest upon which an action may be maintained, where an attempt has been made to defeat her right by act of gross fraud, as was shown in this case; but I [505] Rave had some doubts as to whether Mrs. Madigan was entitled to dower under the circumstances disclosed by the evidence. It appears that Mr. Madigan, before his marriage with the plaintiff, Mrs. Madigan, being sole owner of the land, entered into a verbal agreement with Mr. Walsh, by which he agreed to convey the land in question to Walsh, in case Walsh would come west with him and settle upon and help to clear and prepare the land for cultivation. The parties resided at that time in Providence, in the state of Rhode Island. Walsh assented to the agreement, and subsequently, but not until after the marriage, came west with Mr. Madigan, and has since fully performed the'agreement on his part. Mr. Madigan, always acknowledging the agreement as valid, has accepted the performance by Walsh, and carried the agreement into effect by executing and delivering to Walsh a deed of conveyance of the land. Under these circumstances, it has been a serious question in my mind, whether Mrs. Madigan was entitled to dower in the land so sold and conveyed; and, but for the difference between our statute of frauds and the English statute, and the statutes of many of the states, as shown in Brandeis v. Neustadtl, 13 Wis., 142, it seems to me that she would not be and consequently that this action could not be maintained. Upon this point I content myself with a simple reference to the following authorities : Oldham v. Sale, 1 B. Monroe, 76; Firestone v. Firestone, 2 Ohio St., 415; Bowie v. Berry, 3 Md. Ch. Decisions, 359; Hinton v. Hinton, 2 Ves. Sen., 631, 638; Jackson v. Bull, 1 Johns. Cases, 81; Blackwell on Tax Titles, Title “ Relation,” p. 383 et seq., and cases cited. As our statute of frauds makes a verbal agreement for the sale of lands not merely voidable but void, and as Mr. Walsh did nothing under the agreement by way of part performance before the marriage, I think, [506] notwithstanding the authorities above cited, that Mrs. Madigan may avoid the agreement, and insist upon her right of dower. The objection that the judgment gives Mrs. Madigan an absolute right of dower in the land is untenable. The language must he construed with reference to the facts pleaded and proved; and being so construed, the judgment establishes only Mrs. Madigan’s contingent right. The effect is merely to relieve her inchoate title of the cloud created by her supposed conveyance. By the Court. — Judgment affirmed..