McFarland v. Febigers' Heirs

Judge Lane delivered the opinion of the court: The defense rests upon two positions: 1. That the deed itself presents a bar. 2. That the complainant practiced *suck a fraud, in the execution of the deed, as precludes her from asserting her claim. However trite the saying that courts should favor dower, it must not be forgotten in adjudicating these questions. This estate is given, by the common law, as a kind of compensation for the disabilities attaching to the wife in a state of coverture. It is not to be cut off without a somewhat strict compliance with the [196] formalities which the law has provided as securities against imposition. The mode of destroying dower, which is an American usage, is by the wife joining with the husband in a deed containing words calculated to operate upon her contingent rights. Unless the deed contain words applicable to her estate, and evinces her intention to convey it, it is the deed of the husband only. 9 Mass. 218; 13 lb. 223 ; 3 Mason, 347; 4 Kent’s Com. 58. This deed contains no Fuch terms. The wife joins in nothing that touches her rights. The recitals go no further than to assert that the wife witnesses .that the husband conveys his estate. The husband alone covenants; he alone is concluded. \ The alleged fraud consists in the facts that a married woman joins her husband in a deed which she conceives to be inoperative as to herself, but is silent upon that subject. Whatever might be the effect of such conduct in one acting in her own right, and making her own contracts, it can not be imputed as a fraud to a married woman, disabled to contract except upon one subject, and upon that only in prescribed forms. The case is not like that of Smiley v. Wright. There the woman was a feme sole when the transactions took place that were held to bar her of her then subsisting dower. Here the complainant had no agency in making the contract or in preparing the deed. All this the purchaser transacted with the party whose title he obtained. The wife was passive. She was not bound to be otherwise. She assigns a sufficient reason for her passiveness and for her action, as far as both went. In her circumstances, there' is no taint of fraud in her conduct. Her right remains unaffected by it, and stands upon the terms of the contract. As these do not conclude her, she is entitled to a decree for dower.