Burge v. Smith

Bell, J. By an ordinance passed by the colonial government of Massachusetts, in 1641, while the province of New Hampshire was subject to that government, entitled “ An act respecting dower, &c. It is ordered by this court and the authority thereof, that every married woman * * * * shall, immediately after the death of her husband, have right and interest, by way of dowry, in and to .one-third part of all such houses, lands, &c., as her husband was seized of to his own use * * * * at any time during the marriage * * * * for her natural life * * * * free * • * * of all titles * * * * made * * * * by her husband * * * * otherwise than by some act or consent of such wife, signified by writing under her hand, and acknowledged before some magistrate * * * * which shall bar her from any right, or interest in such estate.” An. Char, of Mass. 99. i This state of the law here was distinctly recognized by the provincial statute of 13 William III, 1701, (Prov. Stat. of N. H. 1771, p. 20,) “ for recording deeds,” &c., where it is enacted that all deeds of houses or lands * * * * signed, sealed * * * * acknowledged * * * * and recorded ***** shall be valid to pass the same without any other act or ceremony in law whatsoever. Provided nothing in this act be [337] construed, deemed or extended to bar any widow of any vender or mortgager of lands or tenéments from her dowry, or right in or to such lands or tenements, who did not legally join with her husband in such sale or mortgage, or otherwise lawfully bar or exclude herself from such her dowry or right.” The first of these enactments is, without doubt, the foundation of the custom which has long had the force of law in the New England States, that a wife, by joining with her husband in his deed of his land, may bar herself of her right of dower in the premises conveyed. In Massachusetts and in Maine, then a part of that province, their courts pretty early consisted, €n part at least, of men educated as lawyers, and the usage there was restricted so that the wife must join her husband in his conveyance, using apt words to indicate her intention to release her dower. And it has been long the settled law of those States that the signature and seal of the wife, affixed to the husband’s deed, will not operate to release her dower, unless there are words in the instrument showing her intention to make such release. Fowler v. Shearer, 7 Mass. Rep. 21; Lithgow v. Cavanagh, 9 Mass. Rep. 161; Payne v. Parker, 1 Fairf. 178; Lufkin v. Curtis, 13 Mass. Rep. 223; Leavitt v. Lamprey, 13 Pick. 382; Stevens v. Owens, 12 Shep. 94. But even in those States, proper words of grant are not required, since it has been often held that the clause, “ In witness whereof, the said (grantor and his wife) in testimony of her release of dower in said premises have set our hands and seals,” is sufficient to bar the wife of her dower. Stearns v. Swift, 8 Pick. 532; Frost v. Dearing, 8 Shep. 156; Learned v. Cutter, 18 Pick. 19; Usher v. Richardson, 16 Shep. 415. In New Hampshire it was much later before the courts were either composed of educated lawyers, or were materially aided by an educated bar, and it is probably owing to this circumstance that the custom became established here. [338] that the wife may release her dower by her signature and seal at the foot of her husband’s deed, without her name being in any other way mentioned or alluded to in the instrument. Such is found, by an examination of the records of deeds, to be a very common mode of conveyance among the unprofessional magistrates, by whom a large part of the conveyances are made in this State. Such was the understanding of Mr. Mason, for a long period one of the most eminent lawyers and most sagacious and observing men who have adorned the bar of this State, as expressed by him in the case of Melvin v. Locks and Canals, 16 Pick. 139. And the fact is further shown by the circumstance, that though the reports of this court extend back for a period of thirty-five years, no case is to be found in them where a widow has insisted upon her dower in land, where she has thus signed her husband’s deed, so as to bring the question before the court for judicial decision. It has been with much reluctance that the court have admitted the existence of a custom so anomalous as we regard this to be’; but the evidence laid before us from the public records, to which reference is made in the argument of the defendant’s counsel, has been entirely conclusive upon our minds; no less than one hundred and thirty deeds thus executed being found in four volumes in the Hillsborough registry. To disturb a custom so long prevalent and so general as this appears to be, whatever doubts we may have of its reasonableness or propriety, would unavoidably unsettle the titles of great numbers of persons, and must be attended with great injustice to those holders of real estate who have paid the full price of unincumbered property, and who regard themselves, and are generally considered as perfectly secure from any claim of dower. If evil is supposed to arise from the practice, it is for the Legislature to provide a remedy, which shall look to the [339] future without disturbing the past. We are not aware of any considerable practical inconvenience which has resulted from this local usage, beyond the. liability to mistake, along the borders of the neighboring States, where a different rule prevails. In Ohio, it seems, a similar state of the law has been recognized and sustained by the supreme court of that State. Smith v. Hardy, 16 Ohio Rep. 181; (U. S. Dig. 1848, 112; Foster v. Denison, 9 Ham. 121, (5 U. S. Dig. 129.) • This court have decided in the case of Flagg v. Bean, 5 Foster’s Rep. 49, that the signature and seal of the wife to the husband’s deed of her inheritance, will not pass her estate without apt words to convey her title, and it may be reasonably inferred that the custom recognized in this case will not be made the occasion of introducing or countenancing any loose practice in other cases. The instruments on which the tenant relies being executed according to the custom referred to, must be regarded as an effectual bar to the action, and there must, consequently, be Judgment for the tenant.