Davis v. Bartholomew

Blackford, J. This was a-bill in chancery filed on the 29th of November, 1849, by Rebecca Bartholomew against James Davis and others. The object of the bill was to obtain dower in a certain lot of ground in Lafayette, The bill was demurred to and the demurrer overruled. The defendants having refused to answer, the bill was taken as confessed, and a decree rendered, giving to the complainant dower in said lot. Commissioners were appointed to assign the dower. The material facts stated in the bill are as follows: On the 13th of October, 1829, one John Stockton, being-seized in fee of a certain tract of land in Tippecanoe county, sold and conveyed the same to Jeremiah Bartholomew, the then husband of the complainant. On the 19th of October, 1829, said Jeremiah Bartholomew and his wife, the complainant, executed to James Davis, one of the defendants, a deed as follows: This indenture, made the 19th day of October, 1829, between Jeremiah Bartholomew, of the county of Tippecanoe, in the state of Indiana, of the first part, and James Davis, of — 487 — the comity and state aforesaid, of the second part, witnesseth, that the said party of the first part, in consideration of the sum of 550 dollars, lawful money of the United States, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell, convey, and confirm unto the said party of the second part, his heirs and assigns forever, all that certain tract or parcel of land situate, &c. Together with all the hereditaments, &c., and all the estate, right, title, claim, and interest whatsoever of the said party of the first (part), either in law or equity, of, in, and to the above-described premises with the hereditaments and appurtenances. To have and to hold the premises above-mentioned and described to the said party of the second part, his heirs and assigns forever. And the said Jeremiah Bartholomew does for himself, his heirs, executors, and administrators, covenant, grant, and agree, to . and with the said James Davis, his heirs, executors, administrators, and assigns, that he, the said party of the first part, is lawfully seized in fee of the aforesaid granted premises, that they are free from all incumbrances, that he is the true and lawful owner of said premises, and has good right, full power, and lawful authority, to sell and convey the same in manner and' form aforesaid. And further, that he, the said party of the first part, for himself, his heirs, executors, and administrators, will warrant and forever defend the aforesaid granted premises with the appurtenances and every part thereof to the said pasty of the second part, his heirs and assigns forever, against all lawful claims and demands of any person and all persons whomsoever. In witness whereof the said Jeremiah Bartholomeio and Rebecca, his wife, who hereby relinquishes her right of dower in the above premises, have hereunto set their hands, date above written. Jeremiah Bartholomew [seal], Rebecca Bartholomew [seal]. Signed, sealed, and delivered in the presence of David Bugher. The certificate of acknowledgment of this deed is as follows: State of Indiana, Tippecanoe county, ss. Before me, — 488 — Daniel Bugher, recorder within and for said county, personally came Jeremiah Bartholomew and Rebecca, his wife, the grantors named in the above deed of conveyance, and being by me examined concerning the same, acknowledged it to be their voluntary act and deed for the uses and purposes -therein mentioned. And the said Rebecca, the wife of the said Jeremiah, having been by me examined separate and apart from her said husband, as required by law, touching the above deed, declared that she signed, sealed, and delivered the same of her own free will and accord, without any coercion or compulsion of her said husband; and that she thereby relinquished all her right and claim to dower in the said premises. In witness whereof I have hereunto set my hand and seal this 19th of October, 1829. Daniel Bugher [seal], recorder. _ This deed is indorsed as follows: A true record. Recorded January 3d, 1831. Daniel Bugher, recorder. The land described in this deed is the same land sold and conveyed as aforesaid by Stockton to Bartholomew. On the 3d of November, 1829, the said Jeremiah Bartholomew and the complainant, his wife, and said James Davis, and his wife, executed to one Canada Fink a deed as follows:. This indenture, made the 3d of November, 1829, between Jeremiah Bartholomew and James Davis, of the county of Tippecanoe, in the state of Indiana, of the first part, and Canada Fink of the same place, of the second part, witnesseth, that the said party of the first part, in consideration of the sum of 207 dollars, lawful money of the United States, to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, convey, and confirm unto the said party of the second part, his heirs and assigns forever, all that certain tract, &c., with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining; and all the estate, right, title, pi aim, and’interest whatsoever, of the said party of the first part, either in law or equity, of, in, and to the above-described premises, with the said hereditaments and ap — 489 — purtenances. To have and to hold the premises above mentioned and described, to the said party of the second part, his heirs and assigns forever. And the said Bartholomew and Davis, and their wives, do for their heirs, executors, and administrators, covenant, grant, and agree, to and with the said Canada Fink, his heirs, executors, administrators, and assigns, that they, the said party of the first part, are lawfully seized in fee-simple of the aforesaid granted premises, that they are free from all incumbrances, that they are the true and lawful owners of said premises, and have good right, full power, and lawful authority to convey and sell the same in manner and form aforesaid. And further, that they, the said party of the first part, for themselves, their heirs, executors, and administrators, will warrant and forever defend the aforesaid premises, with their appurtenances, and every part thereof, to the said party of the second part, his heirs and assigns forever, against all lawful claims and demands of any person and all persons whomsoever. In witness whereof the said Bartholomew and Davis, and their wives, have hereunto set their hands and seals the day and year first above written. Jeremiah Bartholomew [seal]. Rebecca Bartholomew [seal]. James Davis [seal]. Mary Davis [seal]. Signed, sealed, and delivered in the presence of Daniel Bug her. The certificate of acknowledgment to the last-named deed is as follows : State of Indiana, Tippecanoe county, ss. Before me, Daniel Bugher, recorder within and for said county, personally came Jeremiah Bartholomew, James Davis, and their wives, the grantors named in the above deed of conveyance, and being by me examined concerning the same, acknowledged it to be their voluntary act and deed for the uses and purposes therein mentioned. And the said Rebecca and Mary, the wives of the said Bartholomew and Davis, having been by me examined separate and apart from their said husbands, as required by law, touching the above deed, declared that they signed, sealed, and delivered the same of their own free will and accord, with — 490 — out any coercion or compulsion of their said husbands, and that they thereby relinquished all their right and claim to dower in the said premises. In witness whereof I have hereunto set my hand and seal this 3d of November, 1829. Daniel Bugher [seal], recorder. The last-named deed is indorsed as follows: A true record. Recorded October 18th, 1830. Daniel Bugher [seal], recorder. The lot in which the bill prays dower is a part of the land described in the last-named deed, and is a part of the tract described in the aforesaid conveyance to Davis. Bartholomew, the complainant’s husband, died in 1843. On the 16th of October, 1849, the complainant demanded her dower in said lot of Connelly, one of the defendants, who was then in possession of the premises under a title derived from said Fink. The first question is, whether the complainant’s claim to dower was affected by the deed which she and her husband executed to Davis. The only words in that deed bearing on the question are the following: “ In witness whereof the said Jeremiah Bartholomew and Rebecca, his wife, who hereby relinquishes her right of dower in the above premises, have hereunto set their hands, date above written.” The statute of 1824, which governs this case, expressly enacts that a married woman may, by joining in a deed with her husband, release or convey her dower. Acts of 1824, p. 334. There can be no doubt, we think, but that the above-quoted words amount to a release of dower. The certificate of acknowledgment is sufficient under the statute of 1824, which was in force when it was given. Stevens v. Doe d. Henry, 6 Blackf. 475. The complainant, therefore, by her deed to Davis, parted with her dower in the' moiety of the land described in that deed. The next question is as to the effect of the aforesaid deed to Fink on the complainant’s claim. The only parts of this deed relied on against the com — 491 — plainant are her covenants that the party of the first part, that is, her husband and Davis, were lawfully seized of the premises; that the premises were free from incumbrances; that said party of the first part were the lawful owners of the premises, and had good right to sell the same; and that said party of the first part would warrant and defend the premises to the party of the second part. Z. Baird, for the appellants. H. W. Chase, for the appellees. These covenants do not amount to a conveyance or release of dower. They are the mere covenants of a married woman which she had no power to make, and by which she is not bound. Aldridge v. Burlison et ux., 3 Blackf. 201. The effect of this deed, therefore, is the same as if the complainant had not been mentioned at all in the body of it. Her signature and seal are to the deed, but they are not sufficient, of themselves, to bar her claim. Cox et al. v. Wells, 7 Blackf. 410. Nor is the complainant barred of her dower by the circumstance, that the justice’s certificate states that'she acknowledged before him that she had voluntarily executed the deed, and thereby relinquished her right of dower. The' deed itself must contain the words necessary to constitute a conveyance or release, or the claim of dower is not barred. 4 Kent’s Comm. 59. From the view we have taken of the case, it appears that a decree should have been rendered in favor of the complainant for dower in an undivided moiety of the lot in Lafayette described-in the bill. That dower lies against a tenant in common before partition, is decided in Sutton et ux. v. Rolfe, 3 Levinz, 84. Per Curiam. The decree is reversed, with costs. Cause remanded with instructions to the Circuit Court to render a decree in favor of the complainant for dower in an undivided moiety of the lot described in the bill.