Davis v. O'Ferrall

Opinion by Hall, J. This was a petition for dower in certain described lots in the city of Dubuque. The records and proceedings of the court below present the following case : The petitioner, Jane B. O’Ferrall, was married to Francis K. O’Ferrall, in the year 1834; that about the same year they became residents of Dubuque; that said Francis K. O’Ferrall, soon after their settlement in said city, came into possession of the real estate described in the petition, by virtue of a pre-emption right, and occupied and improved the same; that in 1837, said Francis K. O’Ferrall proved up his pre-emption on said lots, under the act of congress [359] laying out the city of Dubuque; that Elijah M. Bissell purchased the said lots and improvements from said Francis K. Q’Ferrall, on the 15th of September, 1840, for the sum of five thousand five hundred dollars ; that he executed a deed to Bissell for the same, warranting and defending the title against all persons except the United States; that Bissell entered into the possession of the premises under the sale; that afterwards, in order to enable said Bissell to enter said lots from the United States, O’Ferrall relinquished to the United States his pre-emption right; that said Bis-sell purchased said lots from the United States, and received a patent therefor; that afterwards, Bissell conveyed to Davis the defendant; that petitioner had never relinquished her dower in said lots ; that said Francis K. O’Ferrall died on the 5th of December, 1851, and that Bissell and his gran, tee have held the premises up to the time of filing the petition. In deciding this case, it is enough for us to know that Francis IL O’Ferrall and petitioner were lawfully married before the conveyance to Bissell; that O’Ferrall was in possession of the premises in which the petitioner demands dower; that he conveyed by deed the premises to Bissell, who entered under the the deed, and that he has not been evicted, but has in person or by his grantees, held the possession up to the time of filing this petition. Bissell having entered into the premises under the deed from O’Ferrall, is estopped from denying O’Ferrall’s title, whilst he or his grantee continue that possession. The door is effectually closed against all other enquiry. The authorities appear to be clear and uniform upon this question. 1 Conn. R, 185; 2 Greenlf., 227; 6 ib., 244; 17 Wend. 164; 14 John., R. 22; 7 Oowen, 637; 2 Hill, 303; 5 Wend., 247 ; Park on Dower, 247 to 253. The dower should be assigned under the law in force at the time of the conveyance by O’Ferrall to Bissell. This is an estate for life in the one-third part of the premises360 At the time of the conveyance to Bissell, the law of dower only gave a contingent or inchoate right to the wife, of a life estate. Every other part, except this right of dower, was vested in the husband. He could convey what he legally owned, and on.which there was no legal encumbrance, neither inchoate or contingent, arid Bissell could safely purchase, without the fear of future legislative enactments, all that O’Ferrall owned and could sell. O’Ferrall had the right to sell all that the law then in force did not reserve for the wife, in case she survived her husband. The contract of sale was lawful and obligatory ; and any act of the legislature, that changed the estate granted by O’Ferrall and purchased by Bissell, would be a clear violation of the obligations of the contract.(a) Judgment reversed. Footnotes [(a)] See Davis v. O'Ferrall, Ante 168.