Johnson v. Morse

WobDBURT, J. The principal question, supposed to arise in this cáse, was the sufficiency of a parol assignment of dower. But, on examination, it will bé found, that all the facts are not settled, which are necessary to the solution of that question. Our statute “ for the convenient and speedy assignment of “ dower,”(l) does not prescribe any specific form for the w , . . . ... , . assignment; but only makes a general requisition, that the tenant shall “ assign and set over to the widow” “ her dow- “ er,” “ to her satisfaction, according to the true intendment “ of law.” The forms of the assignment, then, which existed at common law, must be the proper ones here, as they alone are “ according to the true intendment of law,” unless our statute of frauds has indirectly introduced new forms. At common law, one of the forms consisted in a mere verbal assignment, as “ I do endow you of a third part of all “ the lands my cousin J. S. died seized of.” Styles 276.—5 B. & P. 1, Rowe vs. Power. Such, too, was the mode of assignment ad ostium ecclessim; (2 Bl. Com. 134.—Co. Litt. 34, a.—Com. Di. “ Dower” C.) because the husband could not st make a deed to his wife and, also, for the more general reason, applicable to all cases of dower, that the title passed, not like other freehold estates by livery of seisin, but by mere operation of law. The marriage, seisin, and death of the husband alone transfer the title, as the birth of a child and the subsequent decease of the parent, transfer a title in the parent’s estate to the child. Bac. Ab. “ Dower” C. 1. — Co. Lift. 32. “ There needeth,” says Coke, in his commentary on the 39th section of Littleton, “ neither livery of seisin nor writ- “ ing to any assignment of dower, because it is due of com- “ mon right.” But her right is not consummated, till the assignment is made or completed. Till then she has no right to possession as against the tenant; (7 John. Rep. 247, Jackson vs. O'Donaghy.—9 Mass. Rep. 13, Sheaffe vs. O’Neil), nor any interest subject to attachment lor her debts.(2) Though “ she comes [50] “ to her dower in the per, by her husband; and is in,in con- “ tinuance of his estate, which the heir or terretenant are “ but ministers or officers of the Jaw to carve out to her”— (Bac, Ab. “Dower” D. 2. — Glib. Dow. 395); yet it must be so carved out before the assignment is perfect, and it must also be carved out to her “satisfaction,” unless she agree to accept it(l) without any farther acton the part of the tenant. (t) 5 B. & P. (2) 3 Leon. 272 Leom Baker. (3) toyer 278. The usual practice was, to carve it out by metes and bounds, and then, on notice, she expressed her acceptance by words, or by an entry into possession. Thus, the form of pleading is “quod intrando agreavit,” (2) or “ entereth and agreeth or, as in this case, that she “ ac- “ cepted” it; or, in the language of our statute, that it was “ set over” “ to her satisfaction.” Lilt. Title “ Dower” de plus belle. If once accepted, a subsequent refusal by the tenant would not invalidate the assignment, nor would a subsequent verbal disclaimer by herself defeat her estate.(3) The deficiency, therefore, in the facts of this case is as to her acceptance of the assignment. For she never entered into the estate, and her agent disavowed any intention to be satisfied with the assignment, unless a conveyance was made to her from the tenant. The conduct of the tenant in disclaiming what had been done, indicated an impression, that the business of the assignment was not intended by either party to be binding, till further proceedings; and such we should expect would be their views, when we advert to the general usage, (where dower is not set out by the sheriff or commissioners) to have a conveyance executed from the tenant. Under these circumstances, the cause must be submitted to a jury to establish the fact, whether the assignment was or was not to her satisfaction ; and if it was, it will then be soon enough to decide, whether our statute of frauds has indirectly abolished the verbal mode of assigning dower¡ which was valid at common law. Verdict set aside, and new trial. ,.