Russell v. Rumsey

Mr. Chief Justice Walker delivered the opinion of the Court: The certificate of acknowledgment annexed to the deed of Russell and wife to Wright, fails to state that Mrs. Russell relinquished her right of dower in the premises. In other respects the certificate is formal and sufficient. It presents the question whether such a certificate is sufficient to operate as a bar of dower under the statute. In the case of Hughs v. Lame, 11 Ill. 123, it was said, if the certificate shows that the substantial requirements of the statute have been complied with, it is sufficient to pass the wife’s title to her real estate. And the same reason for the application of the rule applies to the release of her dower. The question then arises whether the omitted words are substantial or merely formal. The statute requires the officer to explain to her the contents of the deed or conveyance, and to examine her separate and apart from her husband, whether she executed the same and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely and without compulsion of her husband. If she shall so acknowledge the deed, the officer is required to grant a certificate, to be indorsed upon and annexed to such deed, stating that such woman was personally known to him or proved to be the person who subscribed the deed or writing, and that she was made acquainted with the contents thereof, and was examined and acknowledged as aforesaid. How acknowledged as aforesaid ? The statute had prescribed that she should acknowledge that she relinquished her dower fi-eely and voluntarily. The officer is required to examine her as to that fact, and ascertain whether she relinquished her dower in the mode pointed out by the statute, and then certify the facts. If he omits any portion of the facts which she is required to acknowledge, then he does not certify that she acknowledged the deed “ as aforesaid.” It would seem to be apparent from the language of the statute, that everything required by her to be acknowledged was regarded as essential. This is the uniform construction put upon the statute by the profession since its adoption. All conveyancers, so far as our knowledge extends, have so regarded and acted upon the statute. It is believed that every form book ever published in the State, has contained in the form of such an acknowledgment, a statement that the wife relinquished her right of dower in the premises. Most of the printed blanks for deeds, prepared for use in the State, have certificates containing this statement, where the wife is expected to join in its execution. 0 In the volume of real estate statutes, published by Judge Purple, on page 507, there is a form given, and it contains the statement. There were few more distinguished real estate lawyers in the profession, and that fact gives it significance. We have only to refer to almost any deed that may be examined, where the wife has joined to release her dower, to see that the acknowledgment contains such a statement. After contemporaneous construction of such uniformity and for such a length of time, we are not prepared, even if it was not so obvious, to adopt a different one. It is urged that a widow claiming dower under such circumstances, acts in bad faith. This may be true, but the law is not designed to regulate morals of individuals who violate no law. Also, that she knew when she executed the deed, that the purchaser expected to obtain a release of her dower, and that she must have designed to bar it by her act. The same might be said, with equal truth, if she had only signed the deed and acknowledged it in the presence of a subscribing witness ; and yet it would not be contended that her dower would thereby have been released. Mor could witnesses be called to prove the fact. The statute has, in lieu of the more solemn mode of barring dower by fine or recovery, adopted the examination and certificate by the officer. When this change was made it can hardly be supposed that any requirement imposed would.be regarded as merely formal or directory. In so great and important a change in the mode of barring dower, it would, of course lead to the adoption of other acts deemed sufficient, but to no more than was deemed essential. The wife is unable to bar her right of dower except by conforming to the requirements of the statute. Mor has equity jurisdiction to specifically execute the contract of a feme covert, whether for the relinquishment of her dower or the conveyance of her .real estate. If there has been, a mistake by the officer, or the feme covert has acted in bad. faith, it is the misfortune of the grantee to have received a deed inoperative to pass the dower. He is presumed to know the law, and when he receives such a deed, it may as readily be inferred that it was with his assent, as that the wife designed to perpetrate a fraud. On the production of the officer’s certificate, the presumption will be indulged, that it contains a statement of all the acts that were done, and that none were omitted. It is for the grantee to be satisfied, that the deed is properly acknowledged. If he neglects this duty it is his fault as well as his misfortune. When property of value* is purchased, it is usual to have the title examined, and if subject to a contingent right of dower, that is taken into consideration, in fixing the price, and in this mode the purchaser indemnifies himself against loss, or covenants are inserted for that purpose. A reasonably prudent man would always provide against such a claim when he purchased. This acknowledgment fails to comply with the statute, and we think in an essential particular, and was therefore insufficient to bar Mrs. Russell’s dower. It is, however, insisted that the act of 1853 (Sess. Laws, 89) cured this defect. That act declares that no deed heretofore or hereafter executed, shall be held invalid or insufficient in-law, by reason of any informality or omission in setting forth the particulars of the acknowledgment in the certificate thereof, if it appears in substance, from the certificate, that the parties executed the same freely and voluntarily. And in case of' married women, it shall appear in substance, from the certificate, that they knew the contents of such instrument, and that they were examined separate and apart from their husbands. It seems to have been the obvious design of this enactment, to dispense with the requirement in reference to the statement that the wife had relinquished her dower, in conveyances subsequently made, as well as to bar all claim of dower, where the statement had been omitted in certificates already made. That it was competent to do the former is undeniable. But the latter presents a graver question. If a feme covert’s right of dower is a vested interest, although contingent, the legislature would not have the power, by enactment alone, to divest the right. The mere fact that it is contingent does not change the interest. A person may have a contingent contract for the payment of money or the performance of some other duty, and yet no one will pretend that the legislature could, by enactment, annul the contract, or release a party from its performance. A person may have a conveyance of land, contingent on the happening of some future event, or may have a contingent remainder. And yet these are vested rights beyond the reach of legislative action. A man may owe a debt and hold real estate subject to sale on execution, but the legislature would have no right to exempt the land from sale to satisfy the debt, if it should ever be reduced to a judgment. In such a case the creditor has no vested interest or estate in the land, nor even a lien upon it; but the right to subject it to sale for the payment of the debt, if it should be reduced to a judgment, whilst the debtor remains the owner, enters into and forms a part of the contract; and this right although contingent, is vested and beyond legislative control. Is the wife’s right of dower in her husband’s estate before his death, although imperfect and contingent, such a vested interest as precludes the legislature from preventing its assertion when it does become vested ? Under a deed conveying an estate, to take effect upon a contingency, it will hardly be com tended that it is within legislative power to divest the right and prevent the assertion of title upon the happening of the contingency. Tet in such a case the estate is no more vested and absolute than is the wife’s dower. In the one case the event may never occur to vest title, and in the other the wife may not survive the husband so as to become vested with dower. So of an estate in remainder or reversion, the contingency may not happen upon which the estate will revert, yet it has never been supposed that it was within the power of legislative enactment to prevent the assertion of title when the title has vested. It is true that dower, as well as such contingent estates, might, under the common law, be barred by fine or common recovery. Ho one will contend that the legislature may release a party from the performance of a contingent contract any more than an absolute agreement. Suppose the General Assembly were to pass a law barring the wife’s right to claim property under a marriage settlement, would it be contended that because the wife’s estate was only a contingent expectancy, that it was within the scope of legislative action ? In what do the two cases differ in principle ? The law has declared that in the event the wife survives the husband, she shall be endowed of one-third of his real estate, owned during coverture, for life, unless relinquished in the mode prescribed. By the marriage settlement the parties agree what the wife shall receive, absolutely or contingently, in lieu of her dower, and the law enforces the agreement because it entered into the marriage contract. But does not the contingent right of dower enter into and form a part of that contract ? We can perceive no difference in principle between the rights guaranteed by law and growing out of a contract and those specifically agreed upon by the parties. The doctrine seems to be well and almost uniformly settled, that the right of dower “ attaches upon the land immediately upon the marriage, or as soon thereafter as the husband becomes seized, and it is incapable of being discharged by the husband without her concurrence.” Park on Dower, 5. As far back as the time of Lord Coke, we are told, that “ no question was made, but that if the husband and wife levy a fine, the wife is barred of her dower; for the intermarriage and seizin are the fundamental causes of dower, and the death of the husband is but an execution thereof.” Park on Dower, 192. It is held that until the death of the husband, the right to dower is only an expectancy, a contingency, or an inchoate right. This is doubtless true, but the same may be said of any contingent estate or agreement, and until the contingency has occurred, all know that the estate or title is only an expectancy, and may never become absolute. Dower, although its enjoyment is contingent, is as much a vested right as a contingent remainder or reversion, and it would hot be contended that they are not vested rights although not vested estates. Although the estate is contingent the right to dower is vested and absolute. When it has, by the marriage and seizin, become attached, it is then an incident to the land until relinquished or barred, in the mode designated by the law. If it is a vested right, and we have seen that it is, it can neither be transferred nor destroyed by any other means than the voluntary act of the feme eovert or dowress. ■ And it is as completely beyond legislative control as is the principal estate to which it is attached. Government is not created for the purpose of conferring rights, but to protect the citizen or subject in the enjoyment of existing rights. To transfer the estate of one person to another would violate the principle of protection. It has the undoubted right to provide the mode in which existing rights may be forfeited, but it cannot transfer or deprive the citizen of them, except for an offense against the laws of the government. This, then,- being a vested right in the wife, she could only be deprived of it by her own act, in the mode prescribed by the law, or by doing some act which the law has declared shall be attended with a forfeiture of the right. Having done neither, she is still vested with the right, consummated and ripened into an estate by the death of her husband. It is insisted, that inasmuch as we have held that the legislature has competent authority to pass a homestead act preventing the sale of the residence of the family, unless the wife shall join in the conveyance, the same may be done to bar the assertion of the right of dower. We are unable to perceive the resemblance in principle of the two cases. At the common law, and independent of statutory enactment, land might he sold, and title passed by verbal contract; but in the exercise of a universally conceded power, the legislature may change the rules of evidence, and when the sale was required to be evidenced by deed, no right was invaded or injury inflicted. And until terms are imposed which shall prevent a person from selling his property, or shall burden such a sale 'to the extent of real injury, no reason is perceived why the legislature may not impose rules to evidence the sale. The homestead act does not prevent the sale, but only requires that the premises shall not be occupied as a homestead at the time of the conveyance. The vendor being the head of the family, may choose their residence, and if he desires to sell the homestead without the concurrence of his wife, he has only to abandon and to cease to occupy it as a residence. It is not the case of vesting the wife with an interest in the property beyond the control of the husband. He has the right to sell or retain it as he may choose, but if he desires to sell it he has only to cease to occupy it as a residence. It is not like prohibiting the sale of property, or transferring the husband’s lands to the wife. For these reasons we are of the opinion that the decree of the court below must be reversed and the cause remanded. Decree reversed.