Dundas v. Hitchcock

Mr. Justice GRIER delivered the opinion of the court. The respondent, Mrs. Anne Hitchcock, was complainant below, in two bills filed in the Circuit Court of Alabama, claiming her dower in certain property in the city of Mobile, of which her late husband, Henry Hitchcock, was seized in hit lifetime, and of which the appellants, as trustees of the United States Bank, were in possession, claiming under a mortgage given by said Henry. The answer admits the marriage of' complainant, and the .seizin and death of her husband, and that the appellants hold the property under a deed of mortgage from him; but deny that complainant has any right of dower in the premises. 1st. Because she was a party to the deed of mortgage, and had relinquished her right of dower by her deed duly executed and acknowledged. 2d. That after the death of her husband, the complainant took possession of his property as sole devisee in fee, and surrendered the possession to the mortgagees in satisfaction of the debt, and for a large consideration paid to her executed a full and absolute release to them of all her. right, title, interfest, and estate, in the mortgaged property. 3d. That she was estopped by a decree of the court of Alabama, on a bill filed by the mortgagees for a foreclosure and to have their title quieted. If the appellants can succeed in establishing either of these three grounds of defence, they will be entitled to a decree in their favor. We will therefore consider them in their order. I. The instrument of mortgage is dated on the 14th July, 1838. The first part of it is a deed poll in, the usual form ‘/Know all men, &c., that I, Henry Hitchcoc of Mobile, &c., in consideration of the sum of ¡$620,530.96, to me in hand paid, by these presents do grant, bargain, sell, &c.,” and concluding, “ Given under my hand and seal, &c.,” and signed “ Henry Hitchcock, Anne Hitchcock,” with their respective seals; also these words, “ Signed, sealed, and delivered in presence of,” but no names of witnesses annexed. *266 Under these signatures and attestation is the following release, signed and sealed by Anne Hitchcock: “And I, Anne Hitchcock, wife of the said Henry Hitchcock, for and in consideration of the sum of one dollar, to mé in hand paid by the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, have relinquished, and hereby do relinquish by these presents, all my right and title of dower in and to the above-described premises, to the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, the survivors or survivor of them, and to the heirs, executors, and assigns of such survivor, forever. Witness my hand and seal, this fourteenth day of July, one thousand eight hundred and thirty-eight. Anne Hitchcock. [Seal.] Attest: Charles A.,Marston. The acknowledgment which appears to have been taken at the same time is as follows : “ The State of Alabama, Mobile County. Personally appeared before me, Charles A. Marston, notary-public in and for said county, the above-named Henry Hitchcock, who acknowledged that he signed, sealed, and delivered the foregoing indenture of mortgage to Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, on the day and year therein mentioned. And also appeared personally • before me, Charles A. Marston, Anne Hitchcock, the wife of said H. Hitchcock, who being examined privately and apart from her said husband, acknowledged that she signed, sealed, and delivered the said indenture of mortgage.freely, and of her own. accord, and without any fear, threats, or compulsion of her said husband. Given under my hand and seal notarial, this fourteenth day of July, A. D. 1838. Charles A. Marston.” The objections to the sufficiency of this instrument to bar the dower of the wife, are, 1st, “ That the mortgage is the deed of the husband only. It contains no words of grant by the wife —her name is not mentioned in the deed.” 2d. That the relinquishment of dower is á several and separate deed, which should have the signature of the husband, to show his consent, and that it was the joint act of husband and wife. 3d. That the acknowledgment of Mrs. Hitchcock is of “ the said 'indenture of mortgage,” and not of her relinquishment of dower. *267 And, 4th. That the acknowledgment is not in due form of law; ' The first three of these objections are founded on the assumption that the release of Mrs. Hitchcock forms no part of the deed of mortgage, but is a separate and distinct deed. It is true, if that portion of the instrumént, above the joint signatures of the husband and wife, is to be construed as. the whole indenture of mortgage, the first proposition cannot be denied. For the instrument, thus far, does not purport to dispose of any right or interest vested in the wife; and if nothing further had been added, the deed would have been wholly inoperative for that purpose. But the face of the instrument shows that it does not end' there: for it proceeds, “ And I, Anne Hitchcock, &e., in consideration of the sum of one dollar to me in hand paid by the said Joseph, &c., do relinquish all my right and title of dower in and to the above-described premises to the said Joseph, &c.” Usually this initiate and contingent right of dower is bárred, in deeds of sale and mortgage, by a conveyance making the grant in the joint names of the husband and wife, in the same manner as if the estate belonged to the wife; the deed operating by way of estoppel when the right of dower \becomes complete by the death of the husband. But when the legal estate is vested wholly in the husband, and the right of the wife is but a contingent incumbrance, there is no necessity that she should join in the grant of the fee, the release of her inchoate, right acknowledged in due form, being all that is necessary to bar her from setting up a, claim of dower, after the death of her husband. The insertion of the clause of release of dower might generally be considered by conveyancers as in better taste, if it had preceded the signature and attestation of the other covenante which’ affected the fee of the husband; but there is no stringent unbending rule of law, which requires a deed to be in such form, or in any peculiar form, in order to operate as a valid conveyance. The intention of the parties is to be gathered from an inspection of the whole instrument of assurance taken together. It ought not to be dislocated and rent into separate fragments by a captious or astute construction, whose only result is to defeat the plain meaning and intention of the parties. The acts of Assembly of Alabama concerning conveyances, frequently use the phrase “ deeds and relinquishments of dower,” which is probably the cause or the consequence of this form of conveyancing in that State, and that in popular parlance, a conveyance of land in this form is described as if a “ relinquishment of dower ” was not a deed, or a portion of the conveyance,- assurance,, or grant, though made at the same time, and forming *268 a portion of it. The instrument before us, composed of what is popularly called the mortgage and relinquishment of dower, con» stitutes but one deed or conveyance executed by husband and wife for the purpose of conveying the fee vested in the husband, and releasing the inchoate right of the wife. It was all written on the same paper or parchment, for one purpose, the latter sentences connected with those which precede it, by a copulative conjunction. ■ It was all executed at the same time, and acknowledged by husband and wife at the time of its execution; and they have each signed that portion of the conveyance which purports to grant or release their several interests. The relative position of the signatures of the husband and wife, or the unnecessary duplication of either, is of little importance, where the instrument, by apt and proper terms, clearly shows the intention of the parties, that the husband should convey the fee, and the wife join with him in the deed, for the purpose of releasing her contingent estate of dower. In such cases, and especially where this form of assurance is in common use, the astutia, of a court would be illy employed in criticizing the form of the conveyance, in order that one of the parties may be enabled to escape from his covenants, and thus wrong and defraud the other. Let us now examine whether the acknowledgment of the wife is sufficient, according to the statutes of Alabama, to operate as a conveyance or relinquishment of her right of dower. 'The act of Assembly of Alabama on this subject (Aikin’s Digest, 93, § 29) is a's follows: “ No estate of a feme covert, in any lands, tenements, or hereditaments, lying and being in this territory, shall pass by her deed or conveyance, without a previous acknowledgment made by her on a private examination apart from her husband, before one of the territorial judges, or one of the justices of the County Court, that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband, and a certificate thereof, written on or under the said deed or conveyance, and signed by the officer before whom it was made; and every deed or conveyance so executed and acknowledged by a feme covert, and certified as aforesaid, shall release and bar her right of dower, and be good and effectual to convey the lands, tenements, and hereditaments thereby intended to be conveyed.” One of the objections to the acknowledgment of Mrs. Hitchcock is, that she acknowledges to have signed and sealed “ the said indenture' of mortgage,” and not that part of it called the “ relinquishment of dower.” This objection we think is- hypercritical. “ Hasret in Ktem.” It is founded on the assumption which we have ju3t noticed, that the several covenants signed *269 by the husband and wife do not constitute one assurance or deed of mortgage. The same criticism would annul the acknowledgment of the husband, which is, “ that he executed the foregoing indenture,” whereas the deed signed by him is a deed poll and not an indenture. Surely no court would declare his acknowledgment invalid for this slight misnomer. It would, certainly, be no great latitude of construction, even if they were separate and distinct instruments, to refer the acknowledgment of the wife to that one which contains her own grant or release, and which she has signed and sealed. Even in cases of doubtful construction, the rule of law is, that the court should construe the instrument ut res magis valent,* and not annul it by such fanciful criticism. It is objected, also, that this acknowledgment is not in the very words of the statute. In place of the words, “ as her vbluntary act and deed,. freely,” it substitutes the words, “ freely and of her own accord.” That the words of the acknowledgment have the same meaning, and are in substance the same with those used in the statute it needs no argument to demonstrate; and that such an acknowledgment is a sufficient compliance with the statute' to give validity to the deed of the wife, is not only consonant with reason, but, as the cases cited by counsel show, supported by very numerous authorities. The act requires a private examin-’ ation of the wife to ascertain that she acts freely and not by compulsion of her husband, but it prescribes no precise form of words to be used in the certificate, nor requires that it should contain all the synonymes used in the statute to express the meaning of the legislature. In other acts of the same legislature, where a precise form of acknowledgment of certain deeds is prescribed, it is provided, that “ any certificate of probate or acknowledgment of any such deed, shall be good and effectual if it contain the substance, whether it be in the form or not, of that set forth in the first section of this act.” Clay’s Dig. 153. -The legislature have thus shown a laudable anxiety to hinder a construction of their statutes, which would require a stringent adherence to a mere form of words without regard! to their meaning or substance, and make the validity of titles to depend on the verbal accuracy of careless scriveners. We are, therefore, of opinion that the certificate of the acknowledgment of the complainant of the deed executed by her, is valid and sufficient in law to bar her claim of dower in the mortgaged premises. II. But, even if this deed of mortgage were not a sufficient ■ bar to the claim, we are of opinion that the deed of release exe *270 cuted by the complainant on the 8th of February, 1840, is a complete bar and estoppel to the, claim set up in her bill. Henry Hitchcock died in August, 1839, having first made his will, in which he devises all his estate, real and personal, to the complainant in trust to sell and dispose of the same, and invest it for the use of herself and children, share and share alike. Under this devise she entered and. took possession of the estate of her husband, and, in consideration of the sum of $150,000, paid to her by the trustees of the. bank, and of a release by them of all claim upon the other estate of the deceased, she executed, on ,8th of February, 1840, á deed of release of the. mortgaged property, containing the following recitals and covenants. “ This indenture, made, &c., between Anne Hitchcock, widow and sole devisee of Henry Hitchcock, acting under and by virtue of the last will and testament, of said Henry Hitchcock, duly proved, &e., of the first part, and Joseph Cowperthwaite, &c., of the second. part, witnesseth, that the party of the first part, for,- and in consideration of the sum of $773,352, &c., hath remised, conveyed, and forever quitclaimed, and doth remise, &c., • to the said parties of the second part, all the estate, right, title, interest, use, property, claim, and demand whatsoever, at law as well as in equity, in possession as well as in reversion of, in, to, or out of all. and singular, the following described premises, to wit, &c., &e.: “ To have and to hold all and singular the afores.aid lands, tenements, improvements, and appurtenances, unto the said parties of the second part, the survivors and survivor of them, and the heirs, executors, administrators, and assigns of said survivor to their own proper use, benefit, and behoof forever; so that neither the said party of the first part, her heirs off assigns, nor any person or persons whatsoever, in trust for them or her, or in her or their name or names, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or. demand any right, title, interest or estate of, in, to, or out of all and singular the premises above described, and ■ hereby released and conveyed; but therefrom and thereout are and shall be by these presents forever excluded and debarred.” By. the law of Alabama, the wide W is allowed one year after probate of the will to make her election, whether to take under it or not. The will of Henry Hitchcock was admitted to probate on the, 17th August, 1839, and cm the 14th of August, 1840, the widow filed her election, renouncing all benefit under .the will and electing to take her dower. This bill was filed on the 29th of April, 1847, nearly seven years afterwards. She makes no offer in her bill to restore the sum of $150,000 paid to her or her agent, or to surrender the release given to her by the trustees.of the bank which was the consideration paid for *271 her release, but contends that she is remitted to her original rights by her last election, and is not estopped by her deed which was merely the execution of a power, and could not affect her personal right, or bar her claim to dower in the land conveyed or released. It is admitted, that the mere equity of redemption of this property was worth nothing; on the contrary, the other property of the mortgagor would have been liable for a large portion of the bond which accompanied the mortgage. Yet, it is contended, that the widow may elect to take under this devise in the will; that, under pretence and belief of such election, she may get her husband’s estate released from a debt and receive a large consideration in money for a release of her title as “ sole devisee,” and afterwards change her election, defeat all the covenants of her own deed, and yet retain the whole consideration paid for it. It is not worth while to examine what acts of a widow amount to an election in pais to take under the will. It is clear she cannot take possession, under the will and sell the title in fee conferred upon her by the devises in it, and then revoke her grant by changing her election within the year. ■ The time given to the widow by the law, to make her election, is intended for her protection, and not that she shall use it as a weápon of, offence to defraud others. Courts of equity do not exert their powers, even in favor of widows, to assist them in such a transaction. The deed executed by the complainant in 1840 is an estoppel, both in law and equity, against this claim of dower. By this deed, she professes to convey, as “ widow,” “ sole devisee,” and under the powers vested in her by the will. She releases all claim or demand in law or equity, in possession or expectancy, “so that neither she,.nor her heirs, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or demand any right, title, interest, or estate in the premises.”' It is hard to conceive how any conveyancer could devise language more comprehensive, or legal phraseology moré stringent, to convey every possible estate of the grantor and operate as a perfect legal estoppel against all possible claim in any character whatever. If this had been a mere naked power of appointment, or to make a conveyance of the title of the deceased, not coupled, with an interest, and the widow had intended merely to exercise such power without affecting her own right in th'e property, her deed should have been carefully drawn,.so as to show on its face an intention to save her own.rights, if she did not intend to convey them. For, it is a settled rule of construction, that “ whoever conveys to a purchaser, without restraining • the operation of his conveyance, shall be deemed to convey in every .character, which enabled him to give effect to ■ his deed.” *272 Sugden, on Powers, 82; Coxe v. Chamberlain, 4 Ves. Jr. 637, &c. This cage is much stronger against the grantor; for her deed was worthless, unless she had elected to take' the devise under the will, and having recited in her deed, that she was “ widow and sole devisee,” she is thereby estopped from denying that she conveyed all rights heíd in either character, or, as between her and the grantees, ever asserting, that she had not elected to take as sole devisee. Being, therefore, of opinion, that the. complainant below is doubly estopped from setting up this claim of dower,, it will be unnecessary to consider the third point of defence urged by appellant’s counsel, as to the effect of the decree of foreclosure. The decree of the Circuit Court is therefore reversed, and the bill dismissed with costs. Order. This cause came on to be heard on the transcript of the record, from the Circuity Court of the United States for the. Southern District of Alabama, and was argued by' counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the décree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded ito the said Circuit Court, with directions to dismiss the bill of complaint with costs.