THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW le Property LOS ANGELES COUNTY LAW LIBRARY i^retui m •eturn, V* If found elsewhere Law Library, pi or notify Lib, Booksj4i^^% to this Libdir 34;^ never sold, exchanged or given away. lAW LIBR ^)^= LOS ANiiFiiiS ^rt v. Wright 311 Danby'H cuso 207 D'Arcy v. Blake 55, 120, i:i8. 329 Davis V. Jones 204 Delver v. Hunter 332 Dennis v. Uennis 286, 307 Dimmock's case 29 Dixon V. Savilio 138, 139 Dobsoii V. Dobson 304, 30N Dcxlson V. Ilaj 120 Doc V. liiitton 179 Dolin V. Coltman 209,210,211, 31M Dormer v. Fortescue, 321, 324, 329, 330, 371 Dormer v. Parkhurst 74 Downman's case 197, IJM) Dudley v. Dudley 131, S&'j, 36H, 374 Duncomb V. Duncomb 73, H5 Drybutter v. Bartholomew 113 Eare v. Snow 193 Easterby v. Easterby 289 Eaton V. St. John 48 Egertnn'ri (Dame) case 302 Emery \ . Wase 203, 205 Fines, the case of 51 Fislier v. Forbes 355 Fitzhiigh's case 313 Flavin V. Ventrice 171, 183 Fletcher v. Robinson 124 Foljambe's case 300 Forder v. Wade 128 Foster v. Kirby 295 Frevil's (Baron) case 235 Gamock v. Cliff 347 Gate V. Wiseman 219, 220 Gerrard v. Gcrrard 121 Gibson v. Wells 358 Glefold V. Carr 298, 311 Godwin v. Winsmorc 129 Goldingliam v. Saunds 299 Goodenoii?r/»ats. 7 H. 4. 25 h.\ 11 H. 4. 14 b.; 19 H. 6. 18; 39 E. 3. 26, 33; 50 E. 3. 15 ; 49 Ass. 7. See also Hard. 63 ; 1 Vent. 77 ; 1 Lev. 41 ; 1 Leon. 53. (n) See Skin. 455. (o) On the issue of " general bastardy" in a real action, where the imputed bastard is a party to the writ, the trial is the same as on the issue of ne unques accouple in a writ of Dower. See 12 Co. 67. (/j) So during the abolition of Episcopacy, in the time of the Commonwealth, the trial of unqiies accouple in loyal matritnony was per puis. See Hard. 65. {q) See Lord Mansfield's observation, 1 Bl. 367. OF MARHIAdi: WITH REFERENCE TO DOWER. 7 apply, as on marriages of Jews or Quakers, the writer has not been able to ascertain wliclher circumstantial evidence may be ailniittecl.(r) Nolwillislanilinj^ the question of marriat^e, when arising on a claim of (lower by a woman married in IOni!;land, is triable by the ecclesiastical court, where the rif^Ut and not merely the fad of the marriage, is cog- nizable, yet the question is attended with a circumstance which has the effect of reducing it very nearly U) a question of fact; namely, that it does not arise till after the dexitk of one of the jjarties. In many cases whei'e, if both the parties *\vere alive, the sjjiritual court ^ , must certify against the marriage, as null l)y the ecclesiasti- ^ ^ cal law, the certificate must, after the death of either of them, be in favour of the marriage, on the ground, that though voidable, it was never annulled by sentence of the spiritual court during the lifetime of the parties, and that court, which acts only jno salute unimariim^ has, by the death of the husband, lost its Jurisdiction, and cannot now avoid the marriage. The proposition, therefore, stateil in many of the books, that, for the purposes of Dower, the marriage must be ilc jure, and not de facto, though true to some extent, is more calculated to mislead the student than to convey any correct impression to his mind. It would appear to be in cases only where the marriage was absolutely void, or where, being voidable, it was annulled by sentence in the spiritual court in the lifetime of the parties, that the illegality of a marriage is an im- pediment to a claim of Dower. It is accordingly said by Lord Coke in his Commentary on the chapter on Dower, " Here Littleton speakcth of a wife generally, and generally is to be understood as well of a wife de facto as dejure.'\s) It is also said to have been adjudged that the wife of a priest (before the Stat. 5 and 6 Ed. VI. c. 12,) should have Dovver,(/) this marriage being not void but voidable, and in the modern case of Haydon v. Gould(?^) it seems to have been *the impression ^ ^ of the Court of Delegates that a marriage by a layman would L J entitle the wife to a temporal right, although it would not authorise the ecclesiastical court to grant administration of the wife's effects to the husband. In Jacob's Law I)ictionary(i') it is remarked that " marriages by liomish priests, whose orders are acknowledged by the Church of Eng- land, are deemed to have the efiects of a legal marriage in soyne in- stances; but marriages ought to be solemnized according to the rights of the Church of England to entitle the parties to the privileges attending legal marriages, as Dower, Thirds," icc. This is true, perhaps, only in tlie sense, that such marriages, generally speaking, would be ro/o? by the marriage act. Independent of the statute law there are cases in which a contract of marriage is, in its own nature, a mere nullity, and therefoie does not re- (juire a sentence of the ecclesiastical court to avoid it. (r) It seems such cviJencc cannot bo received when lioth the parlies are living, as in a suit lor jiictitntioii. 2 Lil. 879; l)ut sec Wood. Civ. L. V~l. («) Co. Liu. :J;J b. (t) Dyer, 185 a. niarp;.; and see Co. Lilt ^6 a. (h) I !Sall<. 119. 'J'iiis case was licfore llie marriage act. Upon the circumstances, the marriaf^e would proliaMy now l)o held void liy this act, as not lieing solemnized in a church or chapel within the meaning ot the act. (t) 'J'it. ' Marriage;' and sec 2 Hum's Eccl. Law, 473 ; Kcx v, Fi.-lding, 5 St. Tr. 610; Rex V. Inhabit, of Brampton, 10 East, 283, 2S8. O PARK ON DOWER. The case of bigamy, in particular, is an example of this: " If a man seised of land, tenement, or rent, &c. in fee, take a wife, and during the same marriage he marrieth another wife, and the husband die, leaving both wives, the latter wife shall not have dower; because the marriage between them was void. And if a woman take a husband, and living the same husband, she marrieth another husband, who is seised of land ^. - -, in fee, and the second *husband die, she shall not have Dower L ^ of his land, causa patetJ\w) The principle of this case is the positive legal disability of a person already married, to contract mar- riage with any other during the continuance of the prior relation. It appears also that the absence of consent on the part of either the husband or wife, renders a marriage merely void by the common law as well as by the spiritual law: as where a man marries a woman by force and duress, (a?) It was formerly held, that the wife of an idiot should be endov/ed,(y but Sir W. Blackstone(2) is of opinion, that the law would be otherwise now, on the ground of the decision in Morrison's case,[a) that an idiot, being incapable of consent, cannot contract marriage. Marriages of persons found lunatics by inquisition are declared void to all intents and purposes, by the statute law. (6) It was however doubted, in ex parte 'Turing, (c) whether it was not necessary to have a ^ ^.- -1 ^sentence of the Ecclesiastical Court, declaring the marriage L J void; and Lord Eldon mentioned, that under the Royal Marriage aci,{d) declaring certain marriages void, a sentence has been thought necessary, though he did not know upon what ground that opinion proceeded. The case was referred to the Master, but it does not appear what was the result of the inquiry. It is difficult to understand how the express words of the statute can be neutralised. (e) It is to be mentioned, as an exception to the nullity of marriages aris- ing ^rom positive disability to contract matrimony, that ybr the pur- poses of Dower, and with the modern qualifications arising from the Marriage act, as to cases within that act, a marriage may be good al- though contracted before the age of consent, and although the husband dies without having arrived at that age. Tiiis anomalous doctrine owes its existence to the privileged character of Dower. "Therefore, if the (w) Perk, sec. 304, 305 (cites T. 39, E. 3. 15). See also 1 Salk. 120 ; Cro. Eliz. 858 ; Roll. Abr. ' Bar. and Feme' (A) pi. 2. But, it seems, the tenant in the writ of Dower can- not jo/ea J bigamy, but must give it in evidence before the bishop, on the general issue of ne ungues accouple, &c. Bro. Dow. pi. 54, (cites 39 E. 3. 15). (ar) Roll. Abr. « Bar. and Feme' (A) pi. 5. (cites 11 H. 4. 14, Dubitatur. 19 H. 7.) And see 2 Inst. 687 ; Kelw. 32, 52. {ij) Co. Litt. 30. b. 80. a. note. 3 Bac. Abr. 533 ; and see Roll. Abr. ' Bastard.' (A) pi. 7 ; ' Baron and Feme' (A) pi. 8 ; Sid. 1 12. (2) 2 Com. 130. (a) Suppl. to 1 Com. 8. lb) 15 Geo. 2. c. 30 ; Co. Litt. 80. a. note. (c) 1 Ves. and Bea. 140. \d) 12 Geo. 3. c. 11. (e) In BuUer's Nisi Prius, p. 114, a MS. case of Rex v. Preston next Travasham M. 33 Geo. 2. B. R. is mentioned, in which it was expressly held, that where the evidence is clear that a marriage was not celebrated according to the requisitions of the marriage act, it is to- tally void, and no declaratory sentence in the ecclesiastical court is necessary. This is un- doubted law. OF MARRIAGE WITH REFERENCE TO DOWER. 9 Wife be past the age of nine years (says Lord Coke,) at the time of the death ol her husbaiul, she sliall be endowed, of what age soever her hus- band be, albeit lie were but four years old.(/) Quia jvninr non potest dotcm pro)iioreri, *neque viriim suslinerc; nee obstahit r n o muiieri pctcnti minor sntas viri. Wherein it is to be L ^^ J observed, that albeit Consensus non concnbilus facit matrimonium^ and tiiat a woman cannot consent before twelve, nor a man before four- teen, yet this inchoate and imperfect marriage (from the which either of the parties of the age of consent may disagree,) after the death of the husband shall give dower to the wife, and therefore it is accounted in law after the death of the husband legitimum matrimonium, a lawful mar- riage, quoad dotem.^\g) *Lord Coke also adds, " If a man takcth a wife of the age ^ ^ of seven years, and after alien his land, and after the aliena- L ^^ J tion the wife attaincth to the age of nine years, and after the husband dieth, the wife shall be endowed, for albeit she was not absolutely dowa- ble at the time of the marriage, yet slie was conditionally dowable; viz. if she attained to the age of nine years before the death of the husband, &c. for by his death the possibility of Dower is consummate."(A) The effect of a sentence in the ecclesiastical court, annul/ifig a mar- riage by reason of canonical impediment, as consanguinity, aflinitv, fri- gidity, &c. is to make that marriage void ab initio,{i) and consequently to j)ut an end to the title of J)ower."(A') (/) Hut, SCO Bro. Dow. pi. 88, where it is said, that if the feme is of the age of nin(^ years, and the baron is not of seven years, she shall not have Dower. Contra, if he is of seven at the lime of his death. See, however, Dr. and Stud. Dial. 1. ch. vii. {g) Co. Liu. 33. «. and see 2 Inst. 234 ; Litt. sec. 36 ; Bro, Dow. pi. 36, 45 ; Fitzh. N. _. 149. (L); 1 Leon. 54; Dy. 369; Dr. and Stud. Dial. 1. chap. vii. 2 P. W. 704. A dilFiculty seems formerly to have been entertained how the bishop would certify this to the court as a legal marriage, which by the rules of the ecclesiastical law was but spousalia tie futuro. In a cise in Dyer (13 and 14 Eiiz.) f. 305. b. the bishop certified to the writ, that the hus- band of the demandant at about the age of twelve years, and the demandant at the a-'e of ei-xteen ytars, contracted matrimony per verba tie pntHeuti, and procured it to be lawlullv solemnized in the face of the church at B. ) Co. Litt. 33. a. (cites 10 E. 3. 35 ; Fleta, 1. 5, c. 22 ; Brit. c. 107;) Perk. sec. 305. \q) See 2 Burr. 1079 ; 2 Eq. Ab. 411; 10 East, 386, (where see as to marriages in Am- bassadors' chapels;) Judgment in Dalrymple v. Dalrymple, p. 6. (r) 1 Ves. S. 159. (s) 1 Bl. 259. OF THE RULE REQUIRING A SEISIN. 11 case of Dower, where no circumstances appear to induce doubts whetlier the laws of the country were conij)lied with.(/) Doubts have been formerly entertained of the validity of marriages celebrated in Scotland, accordint:; to the laws of that country, between persons who went there from Kngland to evade the provisions of the marri:ii;e act, in consequence of Scotland having been expressly ex- cepted out of that act. These doubts arose on the cases of marriages of minors without the consent of parents or guardians, and without banns, which were declared void, as clandestine marriages, by the 26 Geo. II. c. 33. In Ilderton v. Ilderton,(w) it is reported to have been admitted by the bar, and assented to by the bench, that a marriage celebrated in Scotland was such a marriage as would entitle a woman to Dower in England. The reporter adds, " but this case is quite clear of the ques- tion whether marriages celebrated in Scotland between per- ^ ^^ sons who ^0 thither "^to ciuule the laics of England, be L ^ J valid in England; and in liobinson v. Iilan(l,(y) Lord Mansfield ex- pressed a doubt, whether the lex loci ought to be applied to cases ac- companied with circumstances so strongly marking the intent to evade the law of England. In a subsequent case, however, where the par- ties, both English subjects, eloped to Scotland, and were married, the wife being under age, and without the consent of her guardian, it was deter- mined in the Court of Arches, and afterwards nlhrmcd on appeal to the Court of Delegates, that such marriage was valid. Ct^;) •CHAPTER III. [ *24 ] Of the a])pHcation of the Rule requiring a seisin in the husband during the Coverture, in order to the attachment of a title of DOWER. The second circumstance essential to a title of Dower, is a Seisin of lands or tenements, at some time during the coverture, (a) in the person who fulfils, or has fulfilled the character of husband to the woman lay- ing claim to that title. The rule requiring a seisin, taken loosely, is al- most too obvious to require propounding; since, in the nature of things a title to dower can necessarily arise no otherwise than in respect of such lands or tenements of which the husband was seised; and the addition- al term of the rule, that the seisin shall be during the coverture, car- ries an evident propriety and convenience on the face of it, as it would be absurd that a title commencing with the marriage contract, should (t) In questions of bastardy it is clearly so. Sec Aisop v. Bowtrcll, Cro. Jac. 542; where a certificate under the seal of the minister of the town, and evidcnre of cohabitation as man and wife for two years, was received as suflicicnt proof o^ u marriage at Utrecht. (m) 2 H. lil. 145. Iv) 2 Hurr. 1080. 1 Bl. 259. (w)Comiiton v. Boarcroft, 1 Dec. 17GS; Bull. i\. P. 113. Hargr. Co. Litt. 7'.l. l>. n. ; 2 Burr. 1080. n. and see also Ex parte Hall, 1 Vcs. and Bca. 1 12; and Sir W. Scott's Judg- ment in Dalryraple v. Dalrymplc, p. 52. (a) Litt. sec. 30 ; Perk. sec. 301 ; Filzh. N. D. 147 (EJ; Co. Lilt. 31. a. 12 PARK ON DOWER. relate back to all property of which the husband had at any period of his life-time been seised, and his seisin of which was previously deter- mined. But the rule is principally propounded here as affording the material inference that a right or title to real property, however com- f ^QK 1 P^ete in other respects, will never furnish a foundation for L -^^ J a claim of *dovver, if unaccompanied with that which is technically termed a seisin. (6) It is therefore remarked by Perkins,(c) that the husband " may prejudice his wife in her title of dower by his laches of entry, his laches of suit, or his laches of pleading," as in the cases which he puts immediately after: — "If a man seised of one acre in fee be disseised of the same acre, and taketh a wife, and dieth before his entry;"(rf) or, " if a man dieth seised in fee, and a stranger doth abate in the same land, and after the abatement, the heir marrieth a wife, and dieth before his entry."(e) Upon the same principle, if a man grants an estate upon condition on the part of the grantee, and afterwards marries, although the condition is broken in his life-time, yet, as a condition annexed to an estate of free-hold, will not revest the estate in the grantor without entry or claim, if he neglects to take advantage of the breach, his wife will not be dowable, for he had no more than a right or title of entry for condi- tion hi'oken.f/J The cases put all suppose the seisin to have formerly been in the ^ -, husband, and therefore it is *material to their accuracy, that '- ^ the marriage should be noticed as taking place subsequent to the determination of that seisin, for, as will be gathered from another part of the treatise, a title of Dower will exist in the cases put, although, during the converture, the Seisin of the husband is converted into a right. But, supposing the right to descend to the husband, it is of course immaterial at what time the marriage takes place. Till the right is prosecuted to a seisin, no title of Dower can arise. h is also to be observed, that the prosecution of a right or title, even to judgment, is not sufficient if the husband dies before entry, or execu- tion served; for the judgment alone cannot confer a seisin. (5-) And it is material that this point applies not only to recoveries on adverse suits, but also to common or feigned recoveries. Until the return of the writ of execution, or at least till seisin is delivered, no seisin is in the recoveror, and consequently no use can arise.(/i) And although, if execution is afterwards sued by the heir, the execu- tion, when served, shall have relation to the act of the ancestor, and the heir be in by descent,(/) yet, according to the old books, this fictitious (6) Mr. Watkins (Essay on Descents, p. 51,) has pointed^out an error in Wood's Insti- tutes, b. 2. ch. 1. sec. 5, where it is said, that the widow shall be endowed when the husband has only a right: hut, it is clear from the context of the passage, that nothing more was in- tended than to distinguish between a seisin in deed, and a seisin in law. (c) Sect. 366. () Spc Gilt). Uses, 404. Perk. sec. 337. (9) Tlui l)ringiiig of tlie writ is ol itself a Jisagrcomcnt. Perk. sec. 352. (r) 3 Co. 27, and see Perk. sec. 3.'S2, (cites T. 11 E. 3. C3. E. 1 E. 3. l.'i,) 1 .VnJ. 350. (s) Sect. 3tJ2. \t) Perk. sec. 353, (cites T. 43 E. 3. T. 19 E. 3. Dow. 94. T. 9 E. 3. 29.) (u) Liu. sec. 45. Co. Litt. 37 b. 1 Holl. Abr. 676. Sutton v. Holfe, 3 Lev, b4. 20 PARK ON DOWER. time, however short, during which the seisin may subsist, will afford a foundation for the attachment of a title of Dower. In the case of Dower at the common law, it is wholly unnecessary that the seisin should can- tinice during the coverture, as is usually necessary to confer a right to free])ench by the custom. There are several instances in which a seisin in the husband, though but for an instant of time, will confer a title of Dower, as where lands descend upon a person who is married, and a stranger abates in the in- stant of the ancestor's death; the wife of the heir will notwithstanding be entitled, by reason of the seisin which her husband had in the inter- vening instant.(i>) In the case of Broughton v. Randall(ty) a father was tenant for life, remainder to his son in tail, remainder to the right heirs of the father; ^ -. both *father and son were attainted of felony, and executed at L -I the same time, being both hanged in one cart, and the son had no issue of his body: and it being proved by witnesses that the father moved his feet after the death of the son, it was found by verdict that the father was seised of an estate in fee of which his wife had right to be endowed, and the wife had judgment accordingly. The qualification to this rule is where the seisin of the husband is for a transitory instant; that is to say, where the same act which gives him the estate conveys it also out of him again. (a?) To this principle are to be referred the following cases in the old books: If cestui que use, after the statute of 1 Ric. III. and before the statute of 27 Hen. VIII., had made a feoffment in fee, his wife should not be endowed. (3/) " If the husband and another are jointenants in fee, and the husband makes a feoffment of his moiety, his wife shall not be endowed of this, for the husband had a sole estate but for an instant, (z) " If lessee for life leases for the life of another, his wife shall not be endowed, for he gains this fee in an instant."(a) And " if tenant for life makes a feoffment in fee and dies, the wife shall not have Dower, *44 1 ^°^ though the husband gave fee simple by ^alienation, yet L J he was never seised in fee so as she might have Dower."(6) But it seems doubtful whether in these cases the widow may not es- top the feoffee to plead ne unques seisie que dower, &c. by the feoff- ment.(c) If a tenant for years, or at will, makes a feoffment in fee, it is clearly admitted that the feoffee is estopped to aver that the feoffee was not seised quoad Dower, and it is therefore said in the books that his wife is dowable. (rf) {y) See p. 31, supra. (w) Noy, 64. In the short note of the case in Cro. Eliz. 50.3, it is said that the father and son were jointenants to them and the heirs of the son, and that the son survived. (a.) See 2 Bl. Com. 131. {y) Co. Litt. 31 b. (cites 27 H.8. 2.3. F. N. R. 17 H- 3. Dow. 192.) (z) 14 H. 4. 13 b. and see F. N. B. 150 (K.) (cites 34 E. 1. Dow. 179.) Co. Litt. 31 b Jenii, Cent. 3 ca. 1. Cro. Jac. 615. (o) 3H.4. 6. (6) Bro. Dow. pi. 30, (cites 3 H. 4. 6.) 1 Roll. 676 ; Jenk. cent. 3. ca. 1; Hargr. Co. Litt. 31 6. note (3), (cites 14 H. 4. 13.) (c) See 3 H. 4. 6; 13 H. 4. 13. In Fitzh. N. B. 150, marg. the point is stated that the wife of a tenant for life who makes a feoflment in fee shall have Doiuer against the feoffee. {(1) See Moseley v. Taylor, Sir W. Jones 317, (cites 22 E. 4. 12,) and see 1 Preston on Abstracts, 355. Preston on Estates, 555. OP THE RULE REQUIRING A SEISIN. 21 " If the conuzece of a fine doth grant and render the land to the con- uzor, the wife of the conuzee shall not be endowed. "(e) So also where a tenant in special tail married a second wife who was not dowaijle of the estate tail, and afterwards made a feoffment in fee, and died, it was resolved that his widow should not have Dower; "for this livery did not j^ain unto the luisband any new estate, but being eodem 'msitniti drawn out of him, it doth not gain unto him any seisin whereof his wife is dowable."(y') The same principle was recognised by Sir Joseph *Jekyll ^ „ j^ -. in the modern case of Sneyd v. Sncyd,(,ir) where upon a L question whether certain copyhold lands were to be included in an as- signment of Dower, it was contended f(M- the wife in the affirmative, be- cause the husband had the freehold of the copyhold estates in him as lord of the manor, which was purchased by liim, and which contained as well copyhold as freehold, and by him not granted out; and that she was therefore dowable of the said copyhold; or that if he did grant them out, the instantaneous seisin in the htisband at tlie time oft fie purchase was sufficieiit to intitlc her to such Dower, and that no after act of his could give away that right which was once attached in her. But by .Ickyll, Master of the Rolls, "Though no cases have been cited of either side, and seems to be a new point, yet I should think that this instantaneous seisin of the freehold of the copyhold estates in the hus- band will not entitle the defendant to her dower, for notwithstanding there may be no case of the same nature with this, yet it may be go- verned by reason and general rules of law: as for instance, the conuzee of a fine is not so seised as to give his wife a title to Dower; and in the case of a use, the widow of a trustee has been determined to have no claim of Dower from such a momentary seisin. (/j) If this case, however, is rightly reported, there *was no ^ ^^g -. occasion to advert to this point. If the husband granted the new copies pursuant to the custom, the estates created by them would take effect by the custom, and paramount the title of Dower, al- though he had kept the lands in his own hands for a lime and after- wards granted them out.(2) This point does not seem to have been ad- verted to. (e) 2 Co. 77, and see Cro. Jac. 615 ; Jenk. Cent. 3. ca. 1; 2 Vcrn. 58. (/) Amcolts V. Catherick, Cro. Jac. 615 ; and see Vin. Abr. ' Dower,' (G.) pi. 5 ; 3 Lev. 11. (i?-) 1 Alk. 441. (/t) It was referred to the master to inquire whether the husband became intitled to the copyholds in question by virtue of surrenders from the tenants by copy of court-roll, or not. And whether he granted those estates out again by copy of court-roll, and not by lease for years or lives. (/) Cham V. Dover, 1 Leon. 16, and see chap. xi. infra. 2 C 2 22 PARK ON DOWER. [ *47 ] ^CHAPTER IV. Of what Estate in point of quality and quantity whereof the Hus- band IS SEISED, a Woman will be dowable. The doctrine of the law respecting the estate of which a man must be seised, in order to confer a title of dower on his wife, may be thus stated by way of general proposition. The seisin must be of an estate of inheritance, conferring the right to the immediate freehold, as the result of one entire limitation, or several consolidated limitations, and not of successive limitations, conferring distinct estates by reason of an interposed estate of freehold, or of a protection against merger. It must also be an estate, to which the issue of the wife by possibility may inherit, or might have inherited, if living. It is the business of this chapter to amplify and illustrate these gen- eral rules. No estate held for a chattel interest only will confer a title of Dower. The interest of a lessee for years, being originally, and for many pur- poses even at this day, only a contract for the possession, does not con- fer from its ownership, a privilege which was bestowed upon the wives of freeholders; and terms for years, or other chattel interests, created by way of use, by devise, or limitation, ensue in their nature, and in- ^.^ , cidents, the qualities of the interests from which these mere L J modern ^modifications of owership originated. A term for two thousand years, although equally valuable in point of occupation with the inheritance, cannot confer upon its owner, or his wife, any of those privileges which the law annexed to property in land, at a period when such species of ownership was not recognized as an interest in land. It follows a fortiori, that a person whose contract for possession was determinable Dt the will of the lessor, cannot confer a right of Dower. A copyholder, therefore, being, strictly speaking, a tenant at will, can never confer on his wife a title of Dower, properly so called. Under the growth, indeed, of customary privileges, as applicable to such ten- ants, it often happens that the wife of a copyholder is entitled to an in- terest in the copyhold tenement, on her surviving her husband, analo- gous, in its general outline, to that of a dowress at the common law. Such interest, however, is purely the creature of the custom; and to es- tablish the title to freebench, as it is called, in a court of law, such cus- tom must be specifically proved, as an exception or qualification to the law of the land, so far from being any part of it. The wife of a copy- holder, as such, can have no title of Dower, by the Common Law. (a) The very terms of the rule also exclude an estate of were freehold from affording a foundation for the attachment of Dovver,(6) although such estate be descendible to the heirs, or heirs of the body, as special (a) Shaw V. Thompson, 4 Co, 30 ; Hob. 215,216. 4 Co. 22. (i) See Exton v. St. John, Finch. 368. OF WHAT ESTATES A WIFE IS DOWABLE. 23 occupants; as a lcasc/7»/r autre vie, Um'iiod *to tlie lessee ^ <,.» and his hcirs;(c) or, a rent granted to A. and his heirs during ^ J the life of n.{d) Upon the same princij)lc, a wuinan is not dowahle of a rent reserved upon a lease for life; for allhou^h the rent goes to the heir, he takes it as incident to tlic reversion, and not hy reason of any inheritable quality of the rent.(c) If the woman was dowahle of the reversion, she would be di)wal)le likewise of the rent, as incident to it; but the existence of a freehold lease in another person, excludes her title of Dower, inasmuch as the reversion docs not confer the right to the immediate freehold. (/) This mode of stating the point assumes the lease to be made before a title of Dower could attach; but if it was made subsequent to such attach- ment, she is of course dowahle; but then she is dowahle of the land, and not of the rent, and she may defeat the lease, as claiming by title para- mount. There is no privity between a dowress, and a lessee under a lease for life made subsequent to the attachment of her title. But if the estate of the husljand is in its own nature an estate of in- heritance, it makes no diflcrcnce *that it has a determinable r ^ quality attached to it, for the wife's title of Dower will at- ^ 50 ] tach, subject only, where the determinable quality arises from defect of title, to be defeated by the avoidance of the estate of the husband. Therefore, a base fee, carved out of an estate hul,(g) or a qualified fee, as the Duchy of Cornwall, (A) will confer titles of Dower, as against all persons claiming those estates. Where a tenant in tail is attainted of high treason, the King becomes entitled to the estate as long as there are heirs of the body of the tenant in tail; and if the King grants this estate to a man and his heirs, the wife of such grantee will be dowahle of it.(/} It was for a long time held by the greatest lawyers, that under aliena- tions by tenant in tail, not creating a discontinuance, or operating as a bar, viz. by grant, bargain and sale, or other innocent conveyance, the alienee had a mere descendible freehold, simply determinable with the death of the tenant in tail. This opinion was perhaps founded on sever- al passages of Littleton, in the chapter on Discontinuances,(A') where, speaking of such conveyances, in opposition to tortious alienations, which, as they can only be avoided by the (tclio)i of the issue or remainder-man, are therefore indefeasible till so avoided, he treats them as conveyances passing an estate determinable upon the death of *tenant in ^ J. tail; meaning nothing more, probably, than that the mere L ^ J entry of the issue when their title accrued, without any thing further, avoids them. In The case of Fines,{l) (Pasch. 44 Eliz.) the right ex- position was put upon the text of Littleton, and it was there said, that (c) Plow. r^r:,G ■ Bulstr. 1.35 (cites 22 E. 3. 19. pi. 6; 45 E. 3. 13. b.) And see nracton. 92. b. Low V. Biirron, 3 P. W. 263; and see I Vcs. IS. 303. ((/) Cro. Eliz. S05 ; and see 7 H. 6. 3. 0. ; 17 E. 3. 12 ; 28 Ass. 3. {>■) Dro. Dow. pi. 44 (cites 7 H. fi. 3.,) pi. 60 (cites 20 Ass. pi. 38.) pi. 89. (cites M. !. E. C.) I'crk. sec. 348 (cites 8 K. 2. 184.) Co. Litl. 32. a. (cites 28 Ass. 3.) Perk. sec. 467 makes a query of the point as to curtesy, but without reason. (/) Co. Litt. 32. (I. Ig) 3 Co. 84. Ij.; lOCo. 96. a.; .lenk. 274, pi. 96; Machell v. Clarke, 2 Kavm. 778. (/() Jenk. 280. pi. 5. (») Plow. 557. {h) Litt.^sec. 598, 600, 606, 7, 8. (/) 3 Co^ 84. 24 PARK ON DOWER. « his intent was not that the grantee had but an estate for life, and that his estate should be al)sokitely determined by the death of tenant in tail, but that it was not a discontinuance; nor had the grantee any fixed or durable estate, but for the life of tenant in tail; but, that the issue after his death might at his pleasure determine it; and if the grantee in such case should have but an estate for life of tenant in tail, then the wife of such grantee should not be endowed: against which it was adjudged in 24 E. III. 28 b.^\m) So also, by the first resolution in Seymour's case,(n) (where the nature of the estate of the alienee of tenant in tail was fully considered,) it was held that the wife should be dowable of that estate; but whether or not from the inaccuracy of Lord Coke's report, the matter was still left upon a very dissatisfactory footing, for the inference from that resolution that the bargainee had an estate of inheritance, is done away by the language of the report, which repre- sents the court throughout as treating the estate, so far as it was de- pendent upon the bargain and sale, as a mere descendible freehold, determinable on the death of tenant in tail, and expressly taking the ^Ko ~\ distinction *between a descendible freehold under the bar- L ^ J gain and sale, and a base fee under the subsequent fine to the use of the bargainee. This inconsistency occasioned subsequent judges to hesitate in admitting ^^Seymour's case as an authority on the question of Dower; and C. J. Vaughan, in particular, in an anonymous case(o) reported by Carter (and in which it was held that the bargainee of a tenant in tail had a mere descendible freehold,) asks, " How it is possible that such a tenant, who by the very book in the 10th report, Seymour's case, hath but a descendible freehold, how comes he to be so distinguished from other tenants that his wife shall be endowed?" — " I cannot see how she can. There is no reason to difference it from other estates of freehold, determinable upon other acts and accidents, so long as Paul's steeple shall stand." The exposition of Littleton in The Case of Fines, was again lost sight of in Tooke v. Glasscock,(7;) in which it was held, that by the bargain and sale of a tenant in tail, no- thing passes but an estate descendible for the life of the bargainor; but the law was finally settled upon a firm foundation in Machel v. Clarke,(5r) (since recognized in every case which has raised the question,) where, after solemn argument, it was adjudged that the bargainee, &c. of a tenant in tail has a base or determinable fee, and his estate continues until it is avoided by the entry of the issue in tail. In this judgment the authority of Seymour's case was recognized *as to the L 5J J pQJj^^ q£ Dower, and the decision in Tooke v. Glasscock was denied to be law. The rule has been already expressed, as requiring that the estate of the husband should confer the right to the immediate freehold; that is, the first estate of freehold, or the estate of freehold bestowing the pre- sent enjoyment, except so far as that enjoyment may be subject or post- poned to terms for years, or other chattel interests. Consequently, if there be a prior estate of freehold, either for life, or in tail, existing during all the time of the coverture, the husband never (/«) And so also Fitzh. Dow. 98. (h) 10 Co. 95. S. C. 1 Bulstr. 165. per nom. Hey wood v. Smith. (o) S. Carter. 210. (/<) 1 Saund. 260. (g) 2 Raym. 778 ; 2 Salk. 619 ; 7 Mod. 18; 11 Mod. 19 ; 1 Com. 119. OF WHAT ESTATES A WIFE IS DOWADLE. 25 has an estate of which his wife can be dowable;(r) " as if the hushand makes a lease Un- life for certain lands, reserving a rent to him and his heirs, and he taketh wife, and dieth, the wife shall not he endowed, neither of the reversion (albeit it is within these words tpiicinentsj, be- cause there was no seisin in deed or in law of the freehold; nor of the rent, because the husband had but a particular estate therein, and no fee simple. "(.s) Thus also, "if there be lord and tenant by fealty and twelve pence, and the tenant lease the tenancy unto a stranger for life, and the lord take a wife, and the tenant die without heir, and afterwards the lord dieth before ike lessee for life, the lord's wife shall not have Dower of the tenancy; but she shall be endowed of the seignory."(/) A common example of this rule put in the books *is the r *.C4 -i case of a person seised of lands, in which the widow of a ^ -" former owner has an estate in Dower by actual assignment. As to the particular lands assigned, he is seised only of a reversion, expectant upon the estate of freehold in the dowrcss, and therefore his wife can acquire no title of Dower upon those lands so long as the estate of free- hold subsists. And although the lands liad descended to such ])erson in possession, and he had subsequently assigned the ])ower, yet, upon prin- ciples which will be considered in a subsequent chapter, the assignment of Dower will, as to the particular lands assigned, defeat the seisin of the freehold acquired by the descent, and as a consequence, all incidents of that seisin, (t/) And if, during the life of the tenant in Dower, the owner of the reversion sells the lands which are held in Dower, although the tenant in Dower afterwards dies in his lifetime, his wife will have no title of Dower, for he had no seisin but of the reversion, (y) liut Dower must be actually assigned, in order to turn the estate into a reversion, although it seems to be immaterial that the assignment was against common right, as where the father is seised of three acres and dies, and the three acres descend to the son, who takes a wife, and en- dows his mother of one acre in allowance of all her Dower; in a writ of Dower against the wife of the father, this assignment is a good bar of the action, (t^) •In a late case in Ireland, where lands are usually let ^ ^-^ -. upon leases for lives, it was referred to the master to inquire ^ -■ whether there was any title of Dower upon certain estates so let, upon leases made before the marriage of the claimant, and which continued during the coverture. The master reporting that the widow was not entitled to Dower, this report was excepted to, but Lord Redesdale overruled the exception, observing that the husband had not such seisin as to entitle her to Dower. (.r) In the case of incorporeal hereditaments, as seignories, rents, com- mons, &.c. the suspension of the freehold, during all the time of the co- verture, will prevent the attachment of Dower; as in the case put as to Curtesy. "If a tenant make a lease for life of the tenancy to the seignioress, who taketh a husband, and hath issue, the wife dieth, he (r) Perk. sec. 340 {s) Co. Litt. 32. (I. (cites 28 Ass. 3. 8 R. 2. Dow. 181. 1 E. 6. Dow. 80.) (/) Perk. sec. 339. («) Co. Litt. 31. a. and cases cited ; Perk. sec. 31.'j ; Hughes on Writs, 119. (r) Hughes on Writs. 149. (u) Ibid. Hitchcns v. Hitchcns, 2 Vcrn. 405. (.r) D'Arcy v. Blake, 2 Sch. and Lefr. 387. 26 PARK ON DOWER. shall not be tenant by the curtesy, but if the lease had been made but for years, he shall be tenant by the curtesy. "(?/) But it seems that if the suspension has not taken place previous to the marriage, but is the result of the marriage itself, the wife shall have her Dower notwithstanding. Thus, in Perkins,(2r) " If there be lord, and a woman tenant of one acre of land by fealty, and twelve pence rent, and they intermarry, and the husband die, the wife shall be endowed of the third part of the rent by way of retainer; and yet the husband was not seised thereof in deed during the marriage celebrated betwixt them, for by the marriage betwixt them the seignory was in suspense, and P ^cr 1 *^^ continued during the marriage, as to bring an action, so L -• as it did amount unto a possession in law." The technical rule of law requires, that the freehold and inheritance should be in the husband simul et semel.{a) They must also meet in him as one integral estate, and not as several or successive estates. But it is not necessary that they should result from one entire limitation, or that there should be a unity of title as to the freehold and inheritance. By whatever means they meet so as to become absolutely consolidated, the attachment of a title of Dower is the consequence. It is immaterial, that an estate is in terms limited to the husband for life, with remainder to his heirs,(6) or heirs of his body, if, in point of construction, that remainder will operate to vest the inheritance in pos- session in the husband. The rule of construction, whenever it takes effect upon an iniviediute remainder so limited, produces a merger or consolidation of the several estates expressed by the limitations, and as a consequence, the wife becomes dowable. The same effect arises from the operation of merger in the case put by Perkins. (c) " If lands are given unto J. and Alice his wife, in special tail, the remainder unto the right heirs of the husband, and the wife die before issue between them, ^ ^ and the *husband take another wife, and dieth, his second L ^ ' J wife shall be endowed." Here, by the death of Alice with- out issue, the husband became tenant in tail, after possibility of issue extinct, and that estate being no longer privileged against merger, be- came consolidated and lost in the remainder in fee, so as to make him seised in fee in possession. But the interposition of any vested estate, not being a chattel interest, between the limitation to the husband for life, and the remainder to his heirs, will, during the continuance of that estate, prevent the attach- ment of a title of Dower. It is not enough that the husband is seised of an estate of freehold in possession, and of an estate of inheritance in remainder or reversion in the same lands; the inheritance, as well as the freehold, must be in possession; in other words, it must be the imme- diate inheritance, and not an inheritance expectant upon an estate of freehold in any other person, interposed between the freehold and in- heritance of the husband. And therefore, if lands be limited to A. for life, remainder to B. for life, or in tail, remainder to A. in fee, unless A. becomes seised of the inheritance inpossession during the coverture, by {y) Co. Litt. 29 h. (cites 1 E. 3. 6. 5 E. 3. 26.) (:) Sect. 303 (cites H. 1 E. 3. 6.) (a) Perk. sec. 333. (6 Perk. 335. (c) Sect. 338 (cites H. 50 E. 3. 4.) Bro. Dow. pi. 25j 46 E. 3. 24. b. 22 E. 5. 3; 7 H. 4. 25. b.; S. P. as to Curtesy. Bro. Estates, pi. 25. OF WHAT ESTATES A WIFE IS DOWABLE. 27 the determination of the estate of B. the wifu of A. will never be dowable. (r/) In this cusL', the intervening estate of freehold, although it may possi- bly never take effect in possession, preserves the several estates of the husband distinct, and free from the consecjuences of merger, and •consequently prevents the inlieritance from being executed r *eQ 1 in possession. '- -^ There arc other instances in which a similar protection from merger prevents the attachment of a title of Dower. As if the tenant fur life leases the land to the lessor or remainder-man, /«?• the life of I lie lessor or rcmaindei'-man, the wife shall not be endowed, (e) for such lease does not operate as a surrender, nor is there any merger of the particular estate, but the several estates remain distinct and unconsolidated. The reason of this is, that when a tenant for his own life makes a lease to another for the life of the lessee, the tenant for life retains a reversion, or, as it is rather incorrectly called in the old books, a possibility; and when such lease is made to the owner of the inheritance, this reversion becomes an interposed estate of freehold between tlie lease for life and the inheritance. Thus, if A. is tenant for life, remainder to H. in fee, and A. makes a lease to B. for the life of B.; for the purposes of merger the estate stands much in the same situation as if it had been originally limited to B. for life, remainder to A. for life, remainder to B. in fee. The whole estate not being given, it was no surrender; and it was no forfeiture, because the remainder-man was a party. The case of a limitation of the freehold to two jointly, and of the in- heritance to one of the two,(/) is governed by the same principle. The joint seisin ''of the freehold (if created by the same deed ^ ^»p„ -. which limits the inheritance), operates as a protection against L -* merger, and the inheritance executes sub mode only. Perkins(,^) thus puts the point: " If lands be given unto two men, and unto the heirs of the body of one of them begotten, and he who hath fee tail take a wife, and dieth, leaving him that hath the freehold, notwithstanding he that hath the iVeeholcl [afterwards] die, the wife shall not have any Dower, because tiie estate tail was not executed to all purjioscs in her husband: and yet, if a stranger hath entered after his death who hath the freehold, the issue of the donee shall have a formcdon oi le disce/ider against him, and shall allege the esj)lees in his father, and so to such intent the estate was executed in the donee." This seems to be an instance in which the law remits or qualifies its own positive rule in favor of the intention. (A) For were the estate tail to execute absolutely in the person to whom the inheritance is limited, the merger of the freehold for one moiety would sever the jointenancy, and thus defeat the intention of the donor. And this view of the sub- ject aflbrds a key to the distinction taken by the books, that if the in- heritance comes to the husband by a separate conveyance, or subsequent descent, the freehold would be immediately merged for a moiety, and ((/) 46 E. 3. 16. b.; I Roll. AI)r. Dow. pi. 9 ; Bro. Dow. pi. 6'; Finch's Law. b. 2. c. 3. 125 (cites 40 E. 3. 15;) Kng. Lutw. 2'29 ; Perk. sec. 335 ; 1 Salk. 254, in Uatcs's case. (e) 1 E. 3. 16, Hro. Estates, pi, 67; Co. Litt. 42. a. (cites 1? K. 2. Dow. 95. 7 H. 6. 18 E. 3. 48;) 2 Roll. Alir. 496. pi. 7; Bro. Dow. pi. 17. (/) Co. Litt. 182. a. (j) Sect. 334 (cites T. 11 H. 7. 3.) (A) Sec Dyer. 9. a. pi. 22. 28 PARK ON DOWER. ^ 1 the jointenancy consequently severed. (z) *In this case then, I J the wife would be dowable. Lord Coke remarks, that " of ancient time it hath been said,(^) that when lands have been given to two women, and to the heirs of their twor bodies begotten, that the hus- band having issue, should be tenant by the curtesy living the other sister; for that, as some held, the inheritance was executed, and that the sisters were tenants in common in possession, and consequently the husband to be tenant by the curtesy."(/) This opinion proceeded upon an applica- tion of the strict rule of law which would involve the ownership of a prior estate of freehold in that of the inheritance, without adverting to the qualification to the rule admitted in order to give effect to the in- tention. As two women are incapable of mutual issue, they have neces- sarily, under this form of limitation, several inheritances, as tenants in common, while they take d, joint estate of freehold under the immediate limitation to them two. In this instance of several estates arising under one entire clause of limitation, admit the joint estate of freehold to merge in the inheritance, and the husbands of the women necessarily become entitled to curtesy in the respective moieties; but, if the law, in order to preserve the jointenancy, and carry the freehold to the survivor, sus- pends the operation of merger, this qualified execution of the inheritance excludes the attachment of a title of curtesy. To a claim under that ^ -, title, the subsisting jointure of the freehold is a ^sufficient t J answer, although for some purposes, the freehold and inheri- tance are united.(??z) Whether or not the interposition of a contingent estate of freehold between a limitation to the husband for life, and a subsequent remainder to his heirs, or heirs of his body, which, if immediately following the limitation for life, would be construed to execute in the husband in pos- session, will prevent the attachment of a title of Dower, is a question de- manding some consideration. It is the prevailing language of the decisions and treatises, that a re- mainder to the heirs, or heirs of the body, so circumstanced, is executed in possession in the tenant for life, sub modo\[n) or, in other words, that the estates are consolidated or united until the happening of the contino-ency, — but with the qualification annexed to such consolidation, that if the contingency does happen, they shall again divide, and resume the character of several estates, so as to let in the estate originally limited {i) Co. Litt. 182. h.; 1 Keb. 889, in Merrill v. Rumsey; Wiscot's case, 2 Co. 60. (jt) 17 E. 3. 51. 78 ; 18 E. 339 ; 50 E. 3 ; Statham, tit. Done ; 50 E. 3. Feoffments and Faitz. 97. (/) Co. Litt. 183. a. (wi) In stating the law on this head, the author has rather submitted to what appears to be the existing understanding of the best property lawyers of modern times, than satisfied himself of the entire consistency of that exhibition of the law, with all the cases to be found in the old books. It is perhaps next to impossible, to extract from the several reported ex- pressions of the judges, as applied to the varieties of each particular case, any consistent and intelligible definition of the nature of estates executed nub modo as it is called. The student, desirous of investigating the law on this subject, will derive much assistance from Mr. Fearne's Essay on Contingent Remainders, pp. 30 — 36, 5th edit.; and Mr. Preston's Prac- tical Treatise on Conveyancing, vol. iii. pp. 59 — 69. (n) See Lewis Bowles' case, 11 Co. 80; Co. Litt. 28. a.; Fearne's Cont. Rem. 28 ; Pres- ton on Rule in Shelly's case, 80 ; 3 Treat on Conv. 113. 489. OF WHAT ESTATES A WIFE IS DOWABLE. 29 upon that *conlingency. The consolidation so occasioned ^g^ i would seem to he unaccompanied hy merger,(o) for the efTect •- -■ *of a merger would he to accelerate the remainder limited ^ , _ .. to the heirs of the hody, and hy annihilating the particular l J estate of freehold hy which the contingent remainder is supported, it would ipso facto destroy that contingent remainder. The consolidation which the books suppose, would therefore appear to be an exception to the law of merger; — an union of the time of two estates, without an in- volving of the ownership of the prior estate in that of the subsequent one. The question consequently is not merely whether an estate execu- ted in possession, subject to he converted, as to the inheritance, into an estate in remainder, shall, in the meantime, confer a title of Dower; but whether an estate executed in possession in a manner only, and com- prising the ownership of two distinct estates, one an estate of mere tree- hold, and the other a remainder of the inheritance, shall be considered as ,90 executed (putting the happening of the contingency out of the question,) as to come within that description of estate upon which the law allows the attachment of a title of Dower. In a system of property- law like that prevailing in this country, it is one of the inevitable mis- fortunes attending the invention of any new artifice in the modification of ownership, to answer the purposes of a particular case, that it is giving birth to nearly as many fresh difficulties as there can be complications of the existing law with the anomaly thus introduced. The idea of an estate of freehold and inheritance executed in possession, and yet com- prehending the distinct ownership of two successive estates, neither of them answering the whole of that description, is certainly ^ ^^ ^ one to *which it is a matter of some difficulty to apply the l -J known principles of the common law. The authorities directly in point are not only contradictory, but they do not appear to have seized the (o) In Mr. Preston's learned treatise on Merger, 3 Treat, on Conv. 113, this consolidation is in one passage termed a " temporary merger." It may deserve consideration, howeyer, whether the law is not more correctly stated in a preceding passage in that page, where it is treated as a case of protection from merger. See also p. 4b>9, same book. It is difficult to understand how any merger, properly so called can do otherwise than destroy the contingent remainder, and even assuming the avoidance of the merger by the happening of the contin- gency, and the consequent restoration of the particular estate, it is diilicult to get over the circumstance that the contingency must happen first, as the inducement, to such restoration, so that at the instant when the contingent remainder should vest, there is no prior estate of freehold in existence, although there may be the next instant, or in the next fraction of that instant. Lord Coke himself would hardly have gone so far as to suppose the dormant estaAe of freehold to have a quality of pre-sciencc, by which it should be enabled to anticipate by any conceivable portion of time, the happening of the contingency. It comes therefore to the question, whether a preceding estate of freehold bij relation, as opposed to an actual es- tate of freehold, will support a contingent remainder ; as it is certainly open to be contended that, upon the avoidance of the merger, the particular estate and inheritance will be consi- dered in intendment of law, as having been distinct uli initio. This is a point upon which the author does not recollect to have met with any authority precisely in point. The cases put by Mr. Fearnc as to tenant for life, with contingent remainders over, making a feoflracnt in fee upon condition, and restoring the estate for life, by entering for condition broken, all suppose him to enter before the conlinpency hap|)ens. (3ont. lum. (liutl. ) ^49. In Puro- foy V. Rogers, 2 Saund. 337, it was laid down by ('hief Justice Hale, that " if the contingwit remainder cannot take effect immediutchj on the first determination of the particular estate, whether it was determined by merger or surrender, or in any other way whatsoever, it will never vest afterwards, though the particular estate should como in esse again." But ihi* seems too general. Vol. XI.— 2 D 30 PARK ON DOWER. precise difficulty of the case. In Cordal's case,(/)) lands were devised to Ed. Cordal for life, remainder to his first son in tail, and so to the second, remainder to the heirs of the body of Ed. Cordal; and it is said to have been resolved, that the estate tail was not executed [in posses- sion,] for the possibility of the mean estate that might interpose; and therefore it was always disjoined during the life of Ed. Cordal, so that of that estate his wife could not be endowed. It is difficult to understand with precision, what the judges intended to express by this resolution. Taken in its literal extent, the resolution is certainly not law at this day, it being now admitted that for some purposes, the estate tail is executed, and that there is an union of the freehold and inheritance; and Cordal's case has accordingly been denied to be law on several occasions. (^) In Boothby v. Vernon, (r) Anne Boothby was tenant for her life, with a contingent remainder to the issue male of her body living at her death, in tail male, and she had the reversion in fee bi/ descent. The Court of Common Pleas, on a case sent there by the Court of Chancery, certifiedt hat the husband of Anne Boothby was not tenant by the curtesy. Upon a subsequent rehearing before Lords Commissioners Raymond r *p.n. 1 ^^^ Gilbert, it was argued, that the husband *had a right to L -I be tenant by the curtesy, because his wife was seised of the inheritance; for, though she had an express estate for life given to her by the will, yet there was no immediate remainder which possibly could vest during her life; but the inheritance was limited upon a contingent at her death, and therefore she being heir at law to the testator, it must descend to her till the contingency happen, so that she was seised of the inheritance subject to this contingent. The case was also argued upon another ground, but the court appear to have decided it without reference to the circumstance that the wife had the reversion by descent, arguing only upon the intention of the testator, that shet ook no estate of inherit- ance under the will; a point which was not made at the bar. Towards the conclusion indeed of the judgment, the court is reported to have put the case, that "where an estate for life is limited to a woman, remainder to her first, and every other son in tail male, remainder to the heirs of her body, remainder to her right heirs, here it is plain that she is seised of the inheritance; yet if she hath a son, her husband shall not be te- nant by the curtesy, because the contingent estate which is to arise upon her death(5) intervenes between her estate for life, and the inheritance." The decision of Boothby v. Vernon is peculiarly unsatisfactory. The reasoning of the judges as to the intention of the testator, quite overlooks the question; such intention having nothing to do with the positive rule ^ 1 of l^w which cast the reversion *upon Anne Boothby as the L -■ heir at law of the testator, and the reference made to the case of a limitation similar in terms to that in Cordal's case, is expressly qualified by saying, " if she has a son;'' in which event, no doubt could be entertained that the title of the husband to be tenant by the curtesy would be avoided. Indeed, this case of Boothby v. Vernon cannot be admitted as a direct authority either way, the judges having evidently (/>) Cro. Eliz. 315. {q) See 2 Saund. 386; Ca. t. Hardw. 13; 2 Barn. K. B. 279. (r) 9 Mod. 147; 2 Eq. Ab. 727. {*) The words " which is to arise upon her death," appear to have crept in by mistake. OF WHAT ESTATES A WIFE IS DOWABLE. 31 treated the wife as being a ham tenant for life, with a possihility to her issue, as was observed by Lord llardwicke in Hooker v. Hooker. (/) In the last mentioned case, lands were settled to the use of William Hooker the elder for his life, remainder to his wife for life, remainder to William Hooker (his son, and heir apparent) for life, remainder to his first and other sons in tail, remainder to his daughters in tail, remain- der to William Hooker the elder, in fee. William Hooker the father and his wife died in the lifetime of tlie son, who also died un//iou/ issue, and tiie question was, whether his widow was entitled to Dower. This case was twice argued during the time of Lord Chief Justice Raymond, and on each of these arguments the court were strongly of opinion that the widow had a title of Dower.(t/) They agreed, that " where the estate for life, and the remainder in fee, are in one and the same person by the same conveyance, there shall be an opening of those estates, in order that the contingent remainder may vest. But wher- ever the remainder in fee comes lo *the person Avho has the ^ ^^- -, estate for life, and there is no vested remainder between, in •- ^ in such case <' the contingent remainder is always destroyed, whether such coming of the remainder in fee is by the act of God,'or by the act of the party. (t>) For this purpose the Chief Justice mentioned the case of Harpool v. Kent, Sir T. Jones, 76, where there were grandfather, father, and son, the grandfather settled his estate to the use of himself for life, the remainder to the use of the father for life, the remainder to the use of his first and every other son in tail male, the remainder to his own right heirs. The grandfather died before the birth of the grand- son, whereby the remainder in fee came to the father. The Court was of opinion in that case that the contingent remainder was destroyed." After the appointment of Lord Hardwicke as Chief Justice, the case was again argued. His lordship observed that the general questions in this case were, " 1st, Whether the contingent remainder was destroyed by the reversion in fee falling on the estate for life; and, 2dly, admitting that it was not, and that there might be an opening, whether this possi- bility would destroy the dower." He was inclined to think the re- mainder was destroyed. He agreed to the distinction between the several estates coming to one person by the same deed, and by distinct acts. Kent and Harpool, he observed, " was a very strong case, and in Purefoy and Rogers, 2 Saund. 380, the express opinion of Hale and the *judges was, that \\\c piirchasing the remainder in fee by ^ ^^ , the tenant for life totally destroyed the contingent remainder, ^ ^ and that it could never be let in again, though the particular estate were revived. (e^) In the present case, indeed, there was wo dkscent of the fee, because it was in abeyance during the life of William Hooker the elder, [but] theii the estates came to be consolidated, and therefore he thougiit the contingent interest was destroyed in this case likewise. But supi)osing it were not so, and that there was a possibility of the estate's opening in this case to let in the contingent remainder, yet he thought the plaintilfhad a good title to dower, inasmuch as it was stated (0 Ca. t. Hardw. 13 ; 2 Barn. K. B. 200, 2.32, 279. (m) 2 Uarn, K. B. 200, 332. (r) This is too general. Vide infra. (w) This seems to be too general. See Fearne, Cont. Rem. 5ih Edit. p. 349. 32 PARK OX DOWER. that William Hooker the younger never had any issue. (.r) The single case in the books that he found against this, was that in Croke [Cordal's case,] but in Purefoy v. Rogers, 2 Saund. 386, Lord Chief Justice Holt, who was then counsel, said Lewis Bowles's case and others were »„„ -, *against it, and that it was not law; and in ejectment brought L 69 J Jj-,"loj,j Bridgman's time, that case in Croke was denied by him likewise to be law, and accordingly he (Lord Hardwicke) did not take it to be so. Page, J. Here is nothing but a possibility which has never happened, nor can now happen, to distinguish this estate from an estate in fee; therefore he thought the wife plainly entitled to dower. Probyn, J. The distinctions taken in this case may be allowed, and yet the widow be intitled to her dower; besides, it is impossible now the contingencies ever should happen." This case certainly did not require that Cordal's case should be over- ruled upon the point of Dower, and it is observable that both Lord Hardwicke and the other justices are reported to have laid stress upon the circumstance that the contingency was become impossible, which seems alone, to distinguish it from Cordal's case. The cases in which Cordal's case is mentioned to have been denied, were both, no doubt, (as in Purefoy v. Rogers) solely upon the point of consolidation, as to which Cordal's case certainly cannot be now supported. The judgment of Lord Hardwicke, as given above, (being what appears the preferable result of the several reports) sets the case in a somewhat different view from that in which it has hitherto appeared in the treatises. Lord Hardwicke, it seems, doubted no more than his predecessor Sir Robert Raymond, that the subsequent descent of the reversion upon a tenant for life would destroy a contingent remainder; but his doubt upon this case arose from an idea that the reversion did not come to the son by ^^-„ -1 descent, inasmuch as it *was in aieywnce during the life of L '^ -1 the father. (y) This notion being now universally exploded as to conveyance to uses, a case circumstanced like Hooker v. Hooker, might at this day be determined on the point of the destruction of the contingent remainders alone.(r) The observations as to the title of Dower not being avoided by the estate's actually opening, attributed to Lord Hardwick in Annesley's report, are not only inconsistent with his Lordship's knowledge of (x) In Annesley's report of the case, Lord Hardwick is made to say, " but supposing there was a possibility of the estate's opening in this case to let in the contingent remainders, yet he did not think it would defeat the doiver. The distinctions in the law books were, that when a remainder comes in it shall -work no ivvong; he did not find that any of the books say, that if the estates opened during the tenancy in fee the wife should not be endowed." This is certainly bad law. The vesting of the contingent remainder disaffirms the seisin in fee of the husband, and, by relation, makes him seised of several estates ab initio. It does no wrong, because the union of the several estates was not absolute, but subject to this qualification. (t/) See Fearne on Cont. Rem. 5th edit. 352, for cases in which the same idea has been entertained. (:) As relevant to this point, the attention of the student should be called to the distinc- tion taken as to the effect of the descent of the reversion in destroying contingent remainders, when it descends from the person who created the particular estate, and in the same instant of time with its creation, and when not. In the former case it is held that the contingent remainders are not destroyed, for otherwise the remainders would be void in their creation ; but where the descent of the reversion u not immediate, so that the remainders have had a chance of taking effect, the coalition of the life estate and reversion will destroy the contingent remain- ders. See Fearne, Cont. Rem. 341. Gilb. Uses by Sugden, 303, n. (2.) 3 Prest. Conv. 399. OP WHAT ESTATES A WIFE IS DOWABLE. 33 principle/but witli the mode in which he referred to that point as stated by Barnardiston. Upon these considerations the writer doubts whetlier the case of Hooiier v. Hooker ought to be considered as having actually over-ruled Cordal's case upon the point of Dower. In a case where no merger, or destruction of tlic contingent reniaiiulers has taken place, and the j)ossi- bility of their vesting still exists, that pf)int, he apprehends, is still open to decision; in the meantime it can hardly be considered *safe ^ ^- , in practice to treat such a case as excluding the question of '- J Dower. On this point it is certainly open to be contended that the law, in denying to the union of the several estates the effect of an absolute merger, having no other object than the preservation of the contingent remainder, and that object being answered by holding that the estates re- open upon the ha|)pening of the contingency, and arc i/ien onhj to be considered as having possessed the character of particular estate and re- mainder,(«) there is no substantial reason for denying the right of the wife to Dower conditionally until the contingency happens, and abso- lutely upon its becoming impossible or failing of effect. On the other hand there is certainly great difficulty in understanding how the existence of one estate, although comprising the respective times and ownerships of two estates, can in any sense fulfil the terms of the rule that a particular estate, of freehold, and not merely the time of that estate, should be in existence at the period when the contingent re- mainder is to vest. This is a difficulty which the *anoma- ^ ^„ lous notion of a remainder executed, as it is called, suhmodo, '- '"J inevitably involves, and which it must be left to greater lawyers to un- ravel. But probably the most efficient argument against the attachment of Dower in this case, is that the old books abundantly prove that at the common law a mere possibility, {b) altliough attached to an estate indis- butably executed in possession, 7icgatives the attachment of a title in the wife, and does not merely defeat that title by the happening of the pos- sibility. The case of a jointcnancy of the fee is a powerful example of this. It is impossible to assign any cause why Dower should not attach, subject to the survivorship, but the existence of the possibility neces- sarily incident to a joint estate. The cases just considered, in which the execution quodaimnodo of the inheritance in one of two jointcnants of the freehold does not confer a title of Dower, prove the same j)osition. The possibility of the freehold surviving absolutely excludes an incipient title. The case of a lease by tenant for life to the reversioner, for his life, is to the same effect, as the old books considered the mesne rever- sion of the tenant for life as a mere possibility, (c) Until these cases can (a) Chief Baron Gilbert's moJe of slating the law favours this view of it . — '« If a feoff- ment in fee had l)een made to J. S. to the use of a husband and wife, remainder to the eldest son [unborn] in tail, remainder to the husband anil wife in tail, &c. here is a tail e.iecuted in Ihe liushand and ~.v:fc iinmediutelij; but this doth not drown the contingent remainder ; but when a son is born, the estate ojicns and ielx it in, after the e.4ate for life ui the husband and wife is determined. l''or in Eijuit)', the trusts arose in this manner, because this ap- peared to be the parties' intention by their own limitation, and the statute executes the pos- session as the use is limited." Gilb. Uses, 1^5. (b) This must however be carefully distinguished from a condition. (c) Supra, p. 58. 2 D 2 \ 34 PARK ON DOWER. be distinguished in principle from the possibility of a contingent re- mainder taking effect, and that possibility can be shown to be rather analogous to the case of a conditional or defeasible surrender of the estate ,_„ -, *for life to the reversioner,(<:/) it seems difficult to under- L ^ stand how a claim of Dower can be successful in the case under consideration. Assuming the law to be that the wife has a title of Dower upon an estate executed in the husband sub modo, it may become a question whether, if the intervening contingent remainder comes in esse after her title is consummated by the death of the husband, as by the birth of a posthumous child, the estate arising under that remainder shall take ef- fect subject to the title of Dower, or shall defeat and over-reach that title. The writer apprehends that on such remainder coming in esse, the husband is to be considered as having been seised of several estates ab initio, and that for all purposes of title, the arising of such remainder shall devest the execution of the estate tail, by relation to the situation of that remainder in the original limitations; and consequently defeat the title of Dower. It was for some time doubted whether if the estate was limited to A. for life, remainder to B, for the life of A., remainder to A. in fee or in tail, this interposed limitation to B. conferred such an interest as would prevent the consolidation of the estate for life, and remainder in fee, or prevent the attachment of a title of Dower. This point called for a de- cision in the case of Duncomb v. Duncomb,(e) where, upon a writ of Dower, it appeared by special verdict that William Duncomb, the hus- band of the demandant, was tenant for life, the rem.ainder to J. S. and P ^„. -, his heirs *for the the life of William, the remainder to the '- -* heirs males of the body of William, with the ultimate re- mainder in fee to George Duncomb, the tenant to the writ. It was ar- gued for the demandant that the whole estate was really in William, aod the remainder to J. S. for the life of William was no more than a possibility; so that if William had committed a forfeiture, J. S. might take advantage thereof for preservation of remainders, but that in the meantime the whole estate is executed in W. D. And they cited Lewis Bowles's case,(y ) which was that of an interposed contingent remain- der to unborn sons. But the court, upon the first argument, without any hesitation, gave judgment for the tenant. The ground of this de- termination was that J. S. had an actual interposed estate of freehold, and not merely a possibility. This case has ever since been considered as undoubted law, and has been sanctioned by the decisions on the common limitation to trustees to preserve contingent remainders. (^) In all the cases in which the attachment of a title oi dower is prevent- ed by the existence of a previous or intermediate estate of freehold, the obstacle will of course cease by the determination of that estate. (A) As (- ^_- -, where there was grandfather, father, and son, and on the '- ^ death of the grandfather *the father entered, and assigned (J) Infra, p. 75. (e) 3 Lev. 437. (/) 11 Co. 83. Ig) See Dormer v. Parkhurst, 18 Vin. Abr. 413. 5 Bro. Pari. Ca. 453. 13 East, 489, and the certificate in Colson v. Colson, 2 Atk. 350. (A) Co. Litt. 39 a. See Hughes on Writs, 179, as to the mode of pleading in such case. or WHAT ESTATES A WIFE IS DOWABLE. 35 Dower to the grandmother, wlio afterwards surrendered to liim, paying ten pounds ;;er (innum, the lather died, and his wife hrouj^ht a writ of Dower against the son for Dower of the whole land^ and recovered, "be- cause the father had the fee and freehoUl conjoined in the life of the grandmotlier by the surrender."(/) So also if the tenant for life surrer>- dcrs to the reversioner, upon condition, the wife of the reversioner will be dowablc so long as no entry is made for condition broken. (/t) And any grant of the estate of the tenant for life operating virtually as a sur- render, although not so in form, will have the same effect; as a lease to the reversioner or remainder-man and his heirs, or heirs of his body, for the life of the lcssee:(/) but a lease for the life of the remainder-man or reversioner will not operate as a surrender, for reasons which have been already considered, (m) and therefore the wife will not be dowablc in that case. So if husband and wife arc tenants for life, and surrender to him in reversion, his wife shall be dowahle, although the surrender is defeasible, in case of the wife surviving her husband. (/?) The point of distinction between these cases and the case of the lease of the tenancy ^ »^ for life to the reversioner *for Ids life, is, tliat in the latter L ' ^ J case, there is an existing legal reversion in the tenant for life, by way of interposed estate, and not merely a right of defeating the surrender upon an event. Another example is put by Perkins:(o) — " If land be leased unto A. and JJ. for the life of C, the remainder unto the right heirs of A., and A. lake a wife, and C. dieth, leaving A. and B., and A dieth leaving B., his wife shall be endowed, because the cestui que vie died living A. the husijand, so as the freehold and inheritance are joined in the husband during the coverture." Here the joint seisin of the freehold for the life of C. prevented the remainder to the heirs of A. from executing ab- solutely in A., and excluded the attachment of Dower; but on the death of C. the joint seisin of the freehold determined, and the inheritance be- came executed in possession in A. To let in the title of Dower, however, the particular estate must de- termine or be destroyed in the lifetime of the husband. Although the wife should survive the husband, and afterwards, during her life, the particular estate should determine, she would not thereby acquire any- right to be endowed of that estate,(/;) because there was no seisin dur- ing the coverture of such an estate as her title could attach upon. An estate for years limited prior to the estate of the husband, or aris- ing by the demise of a former owner, or of tiie husband him- ^„„ self, is no impediment *to the attachment of a title of Dow- L ''J er, since it does not prevent the husband from being seised of the im- vicdiute freehold, but rather protects and preserves that seisin. (y) So ((■) Hughes Writs 173, (cites M. 45 E. 3. 13.) Bro. Dow. pL 17. Bro. Sci. Fa. pi. 2U (cites 42 E. 3. 9.) (A--) 44 E. 3. 316. 45 E. 3. 13 b. Bro. Dow. pi. 74, (cites 14 E. 4. G.) (/) 18 E. 3. 4.5. („.) Supra, p. 58. In) Hughes Writs (cites M.45 E. 3. 13.) 18 E. 3. 45. (o) Sect. 337. ( p) Perk. sec. 335. (7) 1 Roll. Abr. 670, pi. 7. Bro. Dow. pi. 8!), (cites M. I E. 6). Co. Litt. 32 a. Jenk. 73. ca. 38. Perk. sec. 335. Finch's Law, b. ii. c. 3. p. 125, (cites 9 Ed. U. b.,) Bates v. Bates, 1 Lutw. 729, and sec 1 Taunt. 410. 36 PARK ON DOWER. the suspension of a seignory/rent, common, or other incorporeal hered- itaments, if only for years, does not operate to exclude the title of Dow- er from attaching, for the husband is still seised of the freehold. (r) Neither will the interposition of an estate for years between limita- tions of the freehold and the inheritance (in other respects imme- diate) to the husband, be any prevention to the attachment of Dower.(5) For all purposes of estate, properly so called, the husband is seised of the immediate freehold and inheritance,(/) although with a qualification as to the enjoyment, to the extent of the interest of the termor. In all these cases, the title of Dower will attach, subject only to the term, and when the wife is endowed, she will become the reversioner, quoad the lands assigned to her, and be entitled to the rent, if any, reserved on the demise. (z<) These cases were originally decided, chiefly upon the ground P ^_„ -, that, at the common law, an estate for years *was so little ■- ^ regarded as to be no impediment to the freeholder in prose- cuting those rights and remedies to which he would be entitled if in the actual possession, or which the reversioner or remainder-man might have availed himself of against the particular tenant, if there had been no intervening estate for years. At the common law, indeed, the termor was almost wholly in the power of the freeholder, who might have de- stroyed his term by a feigned recovery, (ij) and it was thought unrea- sonable that an interest so precarious should be any impediment to the rights of those who might at pleasure have defeated it; and Dower, it must be recollected, was formerly considered as a privilege annexed to a seisin of the inheritance, rather than as incumbrance, as it is now treated. These observations as to terms for years, are equally applicable to every other species of chattel interest, precedent to, or interposed be- tween, the estates of the husband. They may postpone the enjoyment, but they do not prevent the attachment, of Dower. Therefore, where a person devised that if his personal estate should not be sufficient for pay- ment of his debts and legacies, his executors should pay the same out of the rents and profits of his real estate; and when debts and legacies were paid, he devised his real estate to his son in tail, who married, and died before the debts were paid, and before he had any possession; it was (- ^_„ -| held that the estate in the executors was but *a chattel inter- L ^ est, and as such could not hinder Dower, (z^j) Lastly, the estate of the husband must, as to its inheritable quality, be such, that the issue of the husband by the particular woman who claims to be entitled to Dower (whether any such issue is had or not), may by possibility inherit, or might by possibility have inherited, as heir to the husband. (a?) Therefore, " if tenements be given to a man and the heirs which he shall beget of the body of his wife — although the husband die without issue, the same wife shall be endowed of the same tenements, because (r) Co. Lift. 29 b. (s) Perk. sec. 336. Bates's case, 1 Salk. 254. 1 Raym. 326, 1 Lutw. 729, and see Godb. 42. {t) Perk. sec. 336. (m) See chap. xvi. infra. {v) See Co. Litt. 46. 2 Inst. 321. 2 Raym. 785. l-w) Kitchen v. Kitchen, 2 Vern. 403 ; Cordeil's case, 8 Co, 96. a, (x) Perk. sec. 301; Litt. sec. 52. OF WHAT ESTATES A WIFE IS DOWABLE. 37 the issue which she hy possibility might have had by the same husband, might have inherited the same tenements. But, if the wife dieth, living her husband, and after, the husband takes another wife, and dieth, his second wife shall not be endowed in this case."(y) The material point is that the circumstances must concur that llie issue are, or would be, inherital)le as heir to the father, and also as lieir to the estate in respect of a seisin of which during the coverture, the title of Dower is claimed; for, although they may be inheritable to the husband in respect of some other estate which he has in him in right, or in re- mainder, this alone will not entitle the wife to Dower: as, << if a man be tenant in fee tail general, and make a feoffment in fee, and taketh back an estate to him, and to his wife, and to the heirs of their two bo- dies, *and they have issue, and the wife dieth, the husband r- ^^o i taketh another wife and dieth, the wife shall not be endowed, ^ J for, during the coverture, he was seised of an estate tail special; and yet the issue which the second wife may have by possibility may inherit.(c) Here, the only estate of which the husband had a seisin during the co- verture of the second wife, was not inheritable by her issue, being an estate to him and the heirs of the body of himself and his first wife; and yet, the issue of the second wife were inheritable to the elder estate tail, being a tail general, and, in default of issue of the first wife, would ac- tually succeed to that estate. It should be observed, that the language of Littleton in treating of this subject is, "So as hy possibility it may happen, that the wife vi ay have issue hy her hushand, and that the same issue may by possibility inherit," i) Till she is of that age, the law does not consider her deserving of Dower, in respect of her incapacity to have issue. On the other hand, the law will not set any bounds to the possibility of having issue at the most advanced age, and therefore it has been decided, that though a man marries a woman of one hundred years of age, she shall have her Dower, though by pos- sibility of nature she cannot have issue ;(c) for, as Lord Coke observes, " seeing that women in ancient times have had children at that age, whereunto no woman doth now attain, the law cannot judge that to be (y) Liu. sec. 52, and sec Bro. Dow. pi. 36. S. P. (cites 12 H. 4. 1.) (r) Co. Liu. 31. i. (cites 41 E. 3. 30. 44 E. 3. 2(j.) Perk. sec. 302, (cites M. 14 E. 4. 30.) 2 Roll. 'Remitter.' (K) pi. 4; Bro. Dow. pi. 18 (cites 46 E. 3. 24.) pi. 9, The case as put by Perkins is liable to mislead the student. " If tenant in tail,"' says he, " take a wife, and enfcotV a stranger, and take back an estate unto him and his wi^ in special tail, and the wife die, and he marrieth another wife, and liat/i issue, and dieth; the second wife shall not be endowed, yet the issue is .emitted unto the general tail." Now, if this was in- tended of the issue of the second wife, who are the only issue mentioned, and which the context seems to require, there could be no remitter, because the defeasible estate tail never descended on such issue, they not being inheritable to it. 'i'lie real case, however, in the books, was that the issue was by the first wife, which removes the dilhculty. (a) Sect. 52. (6) See p. 17, supra. (c) 2 Danv. 652 (cites 12 H. 4. 2. b.) Bro. Dow. pi. 36 (cites 12 H. 4. 1.) Co. Lilt. 40.a.;RolI.Abr. 657. 5s PARK ON DOWER. impossible, which by nature was possible: and in my time (he adds), a woman above three-score years old hath had a child, and ideo non de- Jinitur injure.^\d) It appears from Tothill's Reports, that a bill was filed in the Court of Chancery in the reign of James I. to enjoin the prosecution of a title of Dower, on the plea, that the husband was past memory, at the time of the,marriage, but the bill was dismissed to law.(e) Assaming, that the estate of the husband is of such a nature in point P jj,„- -, of quality and quantity as to *be subject to the attachment L J of a title of Dower, and is not protected by any legal jointure, it is to be remarked, that the consequence of law is inevitable, and that the attachment of the title cannot be restrained or prevented by any proviso or qualification contained in the gift of the estate. The continuation of the estate of the husband by the widow is considered by the law as a portion of the quantity of enjoyment designated by the terms of the limitation itself; any attempt therefore to curtail this right is repugnant to the grant of the estate. Thus, it was said by the court, in Sir Anthony Mildmay's case,(/) " if a man makes a gift in tail, on condition that the donee shall not commit waste, or that his wife shall not be endowed, or that the husband of a woman tenant in tail after issue, shall not be tenant by the curtesy, or that tenant in tail shall not suffer a common recovery, these conditions are repugnant, and against law, because by the gift in tail, he tacitly enables him to commit waste, that his wife shall be endowed, and to suffer a common recovery. And therefore, it is repugnant to restrain it by condition, for that would be to give a power, and to restrain the same power in one and the same deed." [ *83 ] *CHAPTER V. On the modes of limiting lands on conveyances to purchasers, so as to prevent the attachment of a title of dower. The foregoing discussion of the circumstances of ownership under which a title of Dower will attach, naturally leads to the consideration of the different limitations which have been adopted by conveyancers to protect purchased lands from the attachment of this incumbrance. The multiplicity of transactions in modern times, in which real pro- perty becomes the subject of transfer from hand to hand, has made it an object of great anxiety among professional men to invent modes of con- veying estates so as to intercept the title of Dower, and the consequent expense of levying a fine upon any subsequent sale or mortgage. («) Some of tl)e earliest methods adopted to accomplish this object appear to have been those of conveying the fee to a trustee, in trust for the pur- (d) Co. Liu. 40. a. (e) Pennington v. Cook, Toth. 81. .3 Jac. lib. B. f. 6. ( f) 6 Co. 41; and see Dy. 343. b. in the Earl of Arundel's case, Shep. T. 128 ; Co. Litt. 224. a. (a) See several of the old forms of limiting estates so as to prevent Dower, in 5 Povir. Prec. by Barton, 14. OF CONVEYING LANDS 80 AS TO PREVENT DOWER. 39 chaser, or to a trustee and tlie purchaser jointly in trust as to the trustee for tlie purchaser, liotli these modes were highly ohjectionable, on account of the expense and trouble of getting a conveyance from the trustee or his heir, who might be an infant, a married woman, a person ■•unknown, or residing abroad, or at a distance; besides the ^ , , risk of the legal estate escheating to the crown for want o( ^ J heirs of the trustee, or passing by general words in liis will, and be- coming limited in tail, so as to require a fine or common recovery as j)art oi" the conveyance, or even, during the non-existence of a tenant in tail, an act of parliament. Besides, where the estate was limited to the pur- chaser and trustee jointly, if the trustee died in the life-time of the pur- chaser, the object of the precaution was at once defeated, as the purchaser becanie sole seised, and his wife consequently dowable. To avoid the inconvenience of infant heirs, &.c. the lands were sometimes conveyed to the purchaser and a trustee, and the heirs and assigns of the purchaser in trust, as to the estate of the trustee for the purchaser; but, the same danger attended this method of the husband becoming ultimately sole- seised. " To obviate these inconveniences (it is remarked by Mr. Sug- den), it became usual to convey the estate to such uses as the purchaser should by deed or will executed in a particular manner direct or ap- point, and in default of appointment, to the purchaser, his heirs and assigns. This limitation was suggested by the observation, that the ex- ercise of such a power defeated the estate limited in default of its execu- tion. JJut after some time, it was settled that estates limited in default of the execution of such a power were vested, subject to be devested by an exercise of the power. It then became a question whether, as a right of Dower attached on the estate in fee, which was vested until appoint- ment, a subsequent exercise of the power *could drive it ^ ^,„_ -, out — a question upon which learned men still continue to '- -' diflt'r.(6) It was also doubted whether the power was not merged in the lee, although it is now settled that it is not. "(c. The improvement upon this form of limitation now generally adopted seems to have been introduced by JVIr. Fearne, and was suggested to him by the decision in Duncomb v. Duncomb already noticed. In a note to the fourth edition of the Essay on Contingent Remainders, (<^/) he observes, that that case " suggests a mode of preventing dower's at- taching upon purchased lands, which at the same time that it puts the whole estate completely in the purchaser's power, without any recourse to the trustee, vests the legal freehold in him solely, and on his decease, leaves the legal inheritance to his heir, absolutely discharged from the medium of any trust. For this purpose, the lands may be limited to the use of his appointees, &c. in the fullest manner, and in default of ap- pointment to the use of him and his assigns during his life; and from and after the determination of that estate by any means in his life-time, to the use of some person and his heirs during the natural life of the purchaser, in trust for him and his assigns; and Irom and after the de- termination of the estate so limited in use to the said trustee and his heirs, to the use of the purchaser his heirs and assigns for ever." It is observable that in this form the limitations of the use arc alone sufficient (6) See this point discussed in chap, viii, infra. (c) Note to Gilb. Uses, by Sugden, p. 321. (J) Vol. i. p. 509. 40 PAKK ON DOWER. *9fi 1 to prevent the attachment of a title of Dower, without 1 L -' aid of the power of ^appointment; but the advantage of the re- taining that power is, that it enables the purchaser at any time to put an end to the estate limited to the trustee, and, without his concurrence, to vest the entire fee in a third person. In addition to this general power of appointment, the purchaser has, under this form of limitation, the immediate freehold, conferring on him the present legal right of bringing ejectments, making distresses, &c. in his own name. There is next the limitation to the trustee for the life of the purchaser, which, as a vested estate of freehold, prevents the consolidation of the estate for life and remainder in fee of the purchaser, and by preserving the dis- tinct characters of those several estates, prevents the attachment of any title of Dower. The ultimate limitation of the fee to the purchaser vests the legal inheritance in him, so that if he dies without exercising his power of appointment, or having only created particular interests by it, the inhei'itance will be vested in his heirs or devisees, uncumbered with any title of Dower, and discharged of the estate of the trustee, that es- tate having determined by the death of the pnrchaser. These limitations, with some slight variations,(e) have ultimately been adopted by the profession at large; but, there is perhaps no subject within the whole scope of conveyancing, which has experienced more discussion in practice, or which was so long exposed to the cavils and criticisms of the half-informed. But even conveyancers of great emi- nence have differed upon many minor points, arising upon the framing s-_ -. of these limitations, and the practice is not *yet so uniform L -"as might be wished. The prior limitation to such uses, &c. as the purchaser shall appoint, generally requires that the appointment shall be executed in the presence of two or more witnesses. On this point, Mr. Butler observes, " that no good reason can be assigned for re- quiring any number of witnesses to the execution of the deed by which the power is executed; it seems therefore sufficient to require, that the deed shall be legally executed. "(/) On the other hand it is remarked by Mr. Sugden, " It is not of course essential that any solemnities should be required to the execution of the power, but the editor's im- pression is that they ought never to be omitted. It is, even with this precaution too frequently a question whether a deed operates as an ex- ecution of the power, or as a conveyance of the interest. The ceremo- nies required to the due execution of the power always afford some clue to solve this question, for if they are adhered to in the deed exe- cuting the power, that is some evidence of the intention."(^) The more prevailing practice certainly is that which is recommended by Mr. Sugden, but in later drafts of a conveyancer of great eminence, an attestation by " one, two, or more" witnesses is all that is required, which, as almost all deeds are attested by at least one witness, seems to be out of the scope of the reasoning advanced by Mr. Sugden in favour of the attestation clause, and to bring it very nearly within the general- ity of the words recommended by Mr. Butler. (e) See numerous forms of uses to prevent Dower, in 5 Pow. Prec, 14. and 1 Bart. Free. 522. n. (/) Note to Fearne on Cont. Rem. 5th edit. p. .347. (V) Note to Gilbert on Uses, 3d edit. p. 324. OP CONVEYING LANDS SO AS TO PREVENT DOWER. 41 •Till of late years, the forms of the most eminent convey- ^ ,_„ ^ ancers extended the power of appointment to the will of L •' the purchaser, as well as to deeds or instruments, and even now, those commonly found in the olllces of attornies are so penned. This is a de- fect in Ihuse forms which improving ))racticc is every day exploding. It not only uselessly increases the length of the clause, hut it is calculat- ed to raise doubts whether the will of the purchaser operates as a de- vise under the ownership, or as an appointment of the use, which in some cases may involve a title in difliculty. No advantage can be de- rived from it, as tlic purchaser has the entire ownership in himself, and for all purposes of testamentary disposition, can do every thing by de- vise of the land, which he could do by appointment of the use. The clause seems to have been thoughtlessly adopted form the old forms, in which the lands were limited to such uses as the liusl)and should appoint and subject thereto, to himself in fee. Now here, assuming that the power of appointment can be relied on at all, there was an obvious utility in extending it to an appointment by will, as well as hy deed, for as in default of appointment the wife was dowable, she would otherwise have been enabled to defeat the testamentary disposition of the husband, made under the ownership. This point may deserve attention, if it should ever be decided that the exercise of a power of appointment alone is a suflicient bar to the claim of Dower, and the uses should be framed accordingly. Another modern improvement in the penning of *these ^ , ., uses is the omission of the word "signed," among the for- ^ J malities prescribed for the execution of the povver.(/^) The old forms used generally to run ''signed, sealed, and delivered in the presence of, and attested by two or more credible witnesses," The reason of dis- carding this word is to betound in the cases which have determined that to the valid execution of a power so penned, it is necessary that the fact oi signature should be attested by the witnesscs,(/) while tlie conj- mon form of attestation merely expresses that the deed was •' sealed and delivered." In point of consistency, an ultimate limitation to the heirs and assigns of the purchaser seems preferable to a limitation to the purchaser, his heirs and assigns; and in legal effect it is equally unobjectionable, the limitation to the heirs being vested in the purchaser by force of the rule in Shelley's case, it appears, however, that the limitation to the pur- chaser, his heirs and assigns, was adopted in practice to meet the doubts of ignorant practitioners, who supposed the limitation to the heirs to give them an estate by purchase. (A") Of late years, it has been a growing practice in conveying lands to uses to prevent Dower, to give the seisin to the purchaser, and not to the trustee. The grant is therefore made to the purchaser, habendum to the purchaser and his heirs, to the use *of such persons, &c, as - ^^ .. he shall appoint, &c. This practice has some advantages, '- -^ It saves the insertion of the nominal consideration paid by the trustee. {h) It is to be req^etted, that this word is still retainnl in the collection of printed prece- dents now most generally in use in the olfices of ottnrnics. fc^ce I Bart. I'rec. 5*7. (i) See these cases discussed in iSiigd. on I'ow. 2i)l. (t) See Mr. Sugden's note to Gilb. on Uses, 3d edit. p. 324, Vol. XI.— 2 E 42 PARK ON DOWER. and of the tormal clause in the witnessing part, " on the nomination of the said (purchaser), testified," &c.; and it substitutes the purchaser for his trustee in the lease for a year, thereby giving the lease and release greater identity. But, the main reason of its introduction is, that the authorities all agree that the deeds do not appertain to cestui que use, but to the feoffees by the common law, and the statute does not transfer them to him,(/) which is the ground that a cestui que use is allowed to plead the tleed without profert. On the other hand, it is possible to contemplate cases in which the old practice of giving the seisin to the trustee may have its advantages; as if the uses should fail of effect as legal estates (which not unfrequently happens,) by reason of the conveyance operating as the appointment of an use, and giving the legal estate to the trustee to uses, instead of to the *Qi 1 '^^^^ declared upon his seisin. (???) Here, if the ^purchaser «- -^ himself be the releasee, he will have the legal fee, and bene- ficial ownership, and his wife will consequently be dowable; while if the seisin had, in terms, been given to the trustee, the legal estate in him would have prevented theattachmentof Dower, although the uses should have failed. The practice has also the disadvantage of being liable to mislead unskilful practitioners, when the intervening limitation to the trustee for the life of the purchaser is omitted, as is sometimes done when great brevity is an object, and the estate is conveyed to such uses as the purchaser shall appoint, and subject thereto to himself m fee. In this case, if the seisin was given to the purchaser instead of to a trustee, the deed would operate wholly by the common law, and the power would be nugatory.(?i) The wife would consequently be dowable. Under the common form of uses to prevent Dower, the owner may, by an appointment in exercise of his power, at once defeat the estates limited to himself and his trustee, and confer the entire fee upon the person in whose favour the appointment is made. It is, however, the constant practice for a purchaser to take a conveyance under the owner- *Q9 1 ^^'^P ^^ ^^^^ ^^ ^^ appointment,(o) and this practice *pro- L -' ceeds not merely upon an adherence to form, or from abun- dant caution, but upon the ground that the power, being a power appen- dant, may have been suppended or destroyed by some act unknown to the purchaser. But where a power of appointment was effectually crea- ted by the deed conveying the lands to the vendor, many conveyancers of eminence discourage as much as possible the practice of making the (I) See Whitfield v. Faussct, 1 Ves. S. 394. (m) The miscarriage alluded to arises in cases where the vendor is seised under uses to prevent dower, and upon a conveyance to a purchaser, the appointment is made to the pur- chaser or his trustee in fee, to the uses thereinafter declared, instead of being immediately to the uses, &c. As the appointment confers an use, the consequence of the doctrine that there cannot be an use upon an use is, that the uses to prevent dower subsequently declared are mere trusts,'so that if the purchaser is the releasee, be takes the whole legal and equitable interest. It has sometimes happened in practice, that this error has occurred on two suc- cessive sales of the same property. Now on the second sale, the wife would not be dowable, for the former conveyance having conferred no poviier of appointing an use, the subsequent transaction, although in form containing an appointment, operates merely as a lease and release to uses. (n) See Goodill v. Brigham, 1 Bos. and Pul. 192. (o) The writer has known instances in country practice, and where brevity was an object, that the conveyance has been taken by an appointment alone, but he apprehends them to be extremely rare. OF CONVEYING LANDS SO AS TO PRKVENT DOWER. 43 trustee a partj' to the conveyance to the purchaser; and prohably in the greater number of cases, ])ersons preparinsi; drafts on behalf of purchasers uniformly omit the trustee. In point of convenience it is certainly highly dcsiraljle that this ])ractice siiould he uniformly established, as, in transactions so multifarious as purchases and mortgages are at this day, the aggregate expense and trouble of procuring the concurrence of the trustees to prevent Dower, or their representatives, is a matter of no small consideration. But it sometimes happens that a cautious purchaser insists u))on his right to have the trustee made a party, and it lias been made a subject of discussion how far this reciuisition is sustainable. In a case which occurred many years since, lands were limited to such persons, &.c. as A. should appoint; and in default of, and until such ap- pointment, to the said A. for life, and in case E., the wife of the said A., should survive him, then to li. and his heirs during the life of the wife, in trust for A., his heirs, and assigns, and to prevent Dower, and after the death of the survivor of A, and his wife, remainder to the heirs and assigns of the said A. for ever. Upon a subsequent sale by A., two professional gentlemen of great respectability were of *opin- j- ^ _ -, ion that the concurrence of the trustee was not necessary. ^ J Their reasons were as follows: "The conveyance is by way of use executed in A. for life, with pow- er to dispose of the fee. No estate or interest can vest in B. till the contingency should happen of A.'s dying without making an appoint- ment; and as this very conveyance to the purchaser (when made as from A. alonej is an appointment, after it is executed; the contingency can never happen. B. having therefore no interest in the premises, either in law or equity at present, nor any possibility of having any after A. shall have made such conveyance, I conceive he is not a necessary party to join in the conveyance with A. to a purchaser. Nov. 11, 1748. "Hu. Marriott." "I think, that as the power is a plain simple power, and is by the conveyance fully executed, that B. can have no interest; and therefore it is not necessary to make him a party. Nov. 21, 1748. "R. WiLBRAHAM." It must be admitted that neither of these opinions embraced the real points of the case. The following opinion was afterwards given by Mr. Booth: " If the uses had been to A. for life, then to such persons and for such estates as he should appoint, and then the words had been ' in default oi such appointment *to B, during the life of the wife,' or for ^ ^,„. -, any other greater estate, I conceive it is plain from Leonard '- -' Lovie's case, 10 Co. 78, and Sir Edward Clere's case, G Co. 68, the use to B. would have been contingent, and the fee might be then in abey- ance, nobody being appointed to take the fee or remainder but on the contingency of A.'s making no aj)pointment. But in the present case the uses are, in the first instance, to such persons and for such estates as A. shall by deed or will appoint; and then the words arc and in de- fault of and until such appointment, &c. to ihe use of A. for life; and in case his wife survives him, then after A.'s death to B. and his heirs during the life of the wife; remainder over in fee. Here the uses to A. 44 PARK ON DOWER. and R. cannot be contingent; first, because then the freehold would be in abeyance, which the law will not allow; secondly, because the deed expressly vests the freehold and inheritance in the respective takers immediately by express limitation; for the words are, until such ap- pointment shall be made, to the use of, &c. so that in the interim the use vests in A. and the remainder over, until he makes an appointment, leaving an opening for the interposition of the uses which are to arise under any appointment by A. in virtue of his power, whenever that shall be, as in Lewis Bowles's case, 11 Co. " And this case is the same as if the uses had been expressed thus. — Until A. shall make an appointment, in virtue of his power after men- tioned, to A. for life, remainder to B. and his heirs 'pur auter vie, the remainder or reversion to A. in fee; provided that after A. shall make ^„- -, an appointment by *deed or will, the releasees shall stand L -'^ J [^seised] to the use of such persons and for such estates as A. shall in such deed limit or appoint. And this is the case of every mar- riage settlement — ' Until the marriage to J. S. in fee, and after to uses for the benefit of the husband and wife, and their issue.' It is said, that notwithstanding this reasoning may be right with respect to the estate limited to A. which may be a vested use, yet that it cannot be so with respect to B. whose estate is limited upon a contingency, viz. if C. survive her husband. I answer, that these words cannot make B.'s estate contingent, since this contingency must be necessarily implied, if you give him an immediate vested remainder during the wife's life; and if this were not so, every remainder-man for life, after an estate pre- viously limited to another for life, would take by way of contingent re- mainder. "• It only remains for me to say, that all I have said tends to shew there is an actual estate and interest vested in B. as well as in A. and that therefore B. is a necessary party to join in a conveyance to the purchaser. " And although it be true, that if A.'s power remains entire, untouched, unextinguished, or unsuspended, then the use may well enough arise to the purchaser; yet I may venture to affirm I never saw a deed settled with good advice but what not only contained an appointment in virtue of the power, but also a grant by way of conveying the estate and interest of the vendor, and all claiming under or in trust for him. And if this *0R 1 ^^^''S i^ot s°j many of *the most operative words and clauses L -I would be left out in all conveyances. March 18, 1748. " J. Booth." Mr. Marriott, counsel for the vendor, and Mr. Booth, counsel for the purchaser, still differing in opinion, they agreed to be determined by Mr. Filmer, who gave the following opinion: — " The limitation to B. and his heirs during the wife's life being to prevent her title to Dower, I apprehended, that B. is only a trustee for A. the husband, and that the wife has no interest. If so, then if the pur- chaser requires A. not only to limit and appoint the estate by virtue of his power, but also to convey the remainder or reversion in fee (which 1 think is reasonable he should do, lest he may have done any act to extinguish his power,) I see no inconvenience can happen to B. if he should join in the conveyance by the direction of A. if the purchaser OF CONVEYING LANDS SO AS TO PREVENT DOWER. 45 requires him so to do; though 1 cannot say B.'s joining will much mend the title, because li.'s remainder seems to be a contiiij^ent remainder, and not vested; and consequently lie has no estate in him to convey. "Bev. Kilmer." " U])on further consideration of this case I am inclined to think, that, notwithstanding the contingent words, the remainder to B. is a vested remainder; because the contingency must happen upon the determination *of the particular estate on the death of A. ; and therefore, ^ ,»._ , for the reasons before mentioned, I think B. should join in L -• the conveyance with A. ^^jjril 10, 1749. «Bev. Filmer."(/)) In consequence of this opinion the trustee was made a party. The case certainly was not treated with particular success by the gentlemen who advisctl on the part of the vendor. Mr. Marriott's opinion that the limitation to the trustee was contingent upon A.'s dying without having appointed, is clearly not law at this day, and therefore can have no in- fluence in the discussion of the point. The strict question is whether a purchaser objecting to the title under an apj)ointmcnt alone, is or is not bound to show that the power is suspended or extinguished. If he is entitled strict issimi juris to any conveyance at all, he would seem to be entitled to the concurrence of all persons who have an interest to convey. And although the case of a vendor himself refusing to do more than appoint, would certainly be received by the courts with a very difl'ercnt feeling, both on account of its unreasonableness, and its hostility to uniform practice, yet if a purchaser has a right to a conveyance from a person having one j)ortion of the legal estate subject to the power, it is diHicult to show why he has not also a right to a conveyance from a person having another portion of that estate, subject to the same power. *There arc certainly cases in which a purchaser would be ^ ^ compelled to take a title solely under the exercise of a power, L J unless that power could be impeached, and in which no one ever thinks of making the objection in practice that there is an ajjpointment only, and not a conveyance. The cases of titles under powers of sale and ex- change, or powers of revocation and new appointment, where the estate subjected to the power is limited in strict settlement, furnish examples of this. These cases however atford the distinctions, either that a con- veyance cfuuiot be had under the ownership, or that such conveyance will not be valid without the expense of a fine or recovery. The author is not aware of any case which has decided whether a ])urchaser under a title so circumstanced could refuse to execute his contract without a conveyance, upon olfering to pay the expense of a recovery. Another examjjle is to be found in the case of a power of sale contained in a mortgage. It has been decided by Lord Eldon, that it is no objection to the title that the mortgagor will not join in conveying to a pur- chaser.((/) In this case, however, the danger of the power being sus- pended or extinguished was too remote to enter into consideration, and (p) 2 Ca. and Op. 29. *■ ((]) Clay V. Sharpe, Sugd. Vend. Appx. No. 14, and soc Corder v. Morgan, 18 Ves. 344. 2 E 3 46 PARK ON DOWER. the case was discussed merely with a view to the supposed equity of the mortgagor to control the sale. In the absence of any authority distinctly applicable, the impression of the writer is that, strictly speaking, a purchaser is entitled to the concurrence *of the trustee in every case in which that trustee 1^ *^^ J is sui juris, and can convey without the expense of a fine, or an order of the Court of Chancery; but if the trustee is dead, and his heir is an infant,(/') or a married woman, he apprehends that a purchaser insisting upon their concurrence, would be required to show that the power was not exerciseable, or at least that a title under it was open to be impeached upon some specific ground. [ *100 ] *CHAPTER VI. Of Titles of Dower in the wives of Trustees and Mortgagees, and of equitable relief against the same. Where the husband has the legal estate in fee of lands, as a trustee for another person, as courts of law connot take notice of the trust, the wife might at law successfully prosecute her title of Dower. So where the husband is a mortgagee in fee, after condition broken, the wife would, at law, recover Dower, upon proving the legal seisin of her hus- band under the mortgage deed; and the estate of the mortgagee having once become absolute by breach of condition, no subsequent acceptance of the mortgage money, or reconveyance of the lands, by the mortgagee, could defeat the wife's legal WHq of Dower.(«) Hence it was the an- cient practice, in mortgages, to join another person with the mortgagee in the conveyance, to avoid the attachment of the legal title of Dower. So if the husband had the estate upon condition that he should enfeoff another, and he performed the condition, the feofiee would, at law, take ^ ^ subject to the Dower of the wife;(6) the *feofFee being in by t ^^^ ^ the husband, and not by title paramount; and accordingly in Brooke's Abridgment there is a " Mem. That in feoff'ments to make estate over or to re-enfeoff the feoffor, this shall be made to a man sole, or to a chaplain who has no feme, for if it be to a man who has a feme, and she survives, she will or may have Dower."(c) In modern practice it is uniformly considered that the wife, whether of a mortgagee or trustee, who should establish her title of Dower at law, would" in equity be subject to the same trust or redemption as her husband; and consequently that a court of equity would restrain the widow of a trustee or mortgagee from prosecuting her legal title of Dow- (r) To avoid this inconvenience, some gentlemen limit the estate to the trustee, his ex- ecutors and administrators. See Sugden on Pov^ers, 187, note. (a) Bro. Dow. pi. 11, (cites 42 E. 3. 1.) Vin. Abr. Dow. (G. 2.) pi. 5. Perk. sec. 392. (b) 28 Ass. 4. Bro. Dow. 62. 1 Roll. 678, 1. 36. Litt. sec. 357. It is therefore said that if a man sole be enfeoffed upon condition to enfeoff another, and before he has performed tlie conoition, he takes a wife, the feoffor may enter for condition broken, because, says Lit- tleton, "the tenements be put in another plight than they were at the time of the feoffment upon condition, for that then no such wife was dowable," &c. Litt. sec. 357. (cj Bro. Assurances, pi. 3. OP DOWER AS TO TRUSTEES AND MORTGAGEES. 47 er, where the husband had been redeemed, or had conveyed the legal es- tate at the direction of the cestui (jiie trust. It was never doubted tbat the widow of a mortgagee would be subject to redemption ;(^) the equity of a mortgagor extending against persons coming in by every species of title; but the old books diflered upon the question whether a dowress should l)e bound by a mere trust. On this pomt some of them made a distinction *between ^ *ino i Dower and Curtesy, holding that tenant by the Curtesy ^ J being in in 'thc/;o.y/, could not be seised to an use [i. e. trust]; while te- nant in Dower, being in in \\\q. per, might; for she continued the estate of her husband, and under the same trusts and agreements.(e) In ano- ther place it is remarked, that a tenant by the Curtesy claims by the general law of the kingdom, while a tenant in Dower claims by the marriage agreement, and a private contract is the origin of her title;(y) while in a subsequent page of the same book it is said tenant in Dower, as well as tenant by the Curtesy, "cannot be seised to uses [trusts] be- cause they come to those estates by the disposition of law, for the ad- vancement and encouragement of matrimony; and those estates are given them for their own maintenance, and are consequently exclusive of all other uses for the advantage of other people." (.if) The writer apprehends the correct mode of stating the point was that adopted by Brooke, J. in a case stated in his abridgment,(A) where he observed that the feme of a feoffee to uses [before the statute] who was endowed at the common law, should be seised to her own use, in opposi- tion to a feme endowed ex assensu patris or ad osthim ecchsix; for the latter were in by the feoffee, while the former was in in ^ -^ioq i i\\G per, by the baron, and yet by the law, and *without ^ -" the act of the baron. It was well observed also by Serjeant Nudigate in tlie same case, that the estate of tenant in Dower is made by the law, notwithstanding that she is adjudged in by the baron, for yet this is by the law, and whether the baron will or not. In the case of Nash v. Preston(/) (6 Car. I.) a person seised in fee, by indenture enrolled, bargained and sold to another in fee, in consideration of 120/. paid, and that the bargainee was to re-demise it to him and his wife for their lives, and with a condition that if he paid the 120/. at the end of twenty years the bargain and sale should be void. The bar- gainee redeemed tiie land accordingly, and upon his death, his wife brought Dower against the bargainor. Upon a bill in equity to re- strain her from proceeding, it was referred to Crokeand Jones, justices, to consider wliethcr the Dower should be relieved against: "• And al- though they conceived it to be against equity, and the agreement of the husband, at the time of the purcliase, tliat she [the widow] should have it against the lessees, for it was intended they should have it re-demised immediately unto them as soon as they parted with it, and it was but in the nature of a mortgage, and upon a mortgage, if land be redeemed, the wife of the mortgagee shall not have Dower, and if a husband takes a tine sur cognisance de droit come ceo and renders arrear, although it (rf) Cro. Car. 190. Hard. 466. Arc;. Ca. t. Hanlw. 400. \e) Gilb. Uses, 11, 172. 7 Co. 7«, and see Hard. 4(59, per Plale, C. B. (/) Gilb. Uses, 11. (j-) lb. 171. See also Bro. Feoff, al Uses, pi. 40. (A) Bro. Feoff, al Uses, pi. 10. (j) Cro. Car. lUO. 48 PARK ON DOWER. , was once the husl)and's, yet his wife shall not have Dower, [ 104 J ^^^ j^ jg j^ j^-j^ ,^^^^1 qjjI- Qf j^i^ ^ii«,sj *unoJiatu, and by one and the same act; yet in this case they conceived that by the law she was to have Dower, for by the bargain and sale the land was vested in the husband, and thereby his wife entitled to have Dower; and when he re-demised it upon the former agreement, yet the lessees were to receive it subject to this title of Dower; and it was his folly that he did not conjoin another with the bargainee, as it was the ancient course in mortgages. And when she was dowable by act or rule in law, a court of equity should not bar her to claim her dower, for it is against the rule of law Where no fraud or covin is a court of equity will not relieve.^' And upon conference with the other justices, who were of the same opinion, Croke and Jones certified to the Court of Chancery that the widow of the bargainee was to have Dower, and that a court of equity ought not to preclude her thereof The reasoning of this case is not particularly satisfactory. There could be no question but that the wife was dowable at law, but unless upon the ground which they passed over unnoticed, that a dowress is not affected hy trusts, no reason appears why a court of equity should not restrain her. As to jurisdiction, a court of equity is as much con- cerned with cases of trust as with cases of fraud. It is however said that this case of Nash v. Preston was cited in Chancery, 11 July, 168S, before Jefferies, chancellor, in a case between the creditors of the Earl of Pembroke and his heir, and by his lordship, ^ ^ , and Lutwyche and Powell, justices, assisting, and by the t ^^^ -J bar, unanimously declared to be *against equity, and the constant course of Chan eery. (A;) So in Noel v. Jevon(/) (1678,) on a bill brought to be relieved against the defendant's Dower, it appearing to the Court that the husband was but a trustee, the relief was granted; as the reporter adds, "contrary to the opinion of Nash v. Preston; and so it was said is the canstant prac- tice of the Court now." And in Bevant v. Pope(m) (1681) a copyhold was granted to A. in trust for B., and A. died, leaving a widow, who by the custom of the manor was entitled to her widow's estate. The ques- tion was, whether or no she should have her widow's estate, and not he liable to the trust. And it was held that she should not, no more than the wife of a trustee shall have Dower, for the widow's estate springs out of the trust estate by the custom, as Dower doth by the common law. In the modern case of Hinton v. Hinton(7z) it was also said by Lord Hardwicke, that if the husband was seised merely as a trustee, the wife would be entitled to Dower at law, but the Court of Chancery would not suffer her to take advantage of it, because it would be taking part of that estate the whole of which was in another, and against conscience. *infi 1 *The explanation of the obvious inconsistency between L -I the modern cases, and the doctrine of Justice Brooke and Serjeant Nudigate, and of the judges in Nash v. Preston, appears to be that the substantial equity of the case has got the better of technical ac- curacy and consistency. (it) Bacon's Tracts, 37. (0 2 Freem. 43, See also 2 Ves. S. 632, admitted, (w) 2 Freem. 71, and see 2 Ves. S. 633, ace. \n) 2 Ves. S. 634. See also 1 Burr. 1 17, that the wife of a feoffee to be tenant to the praecipe is not dowable : [that is, in equity.] OP DOWER AS TO TRUSTEES AND MORTGAGEES. 49 Little doubt seems to be entertained in practice, that, at this day, the Court would p;ivc costs against the v/ife of a trustee prosecuting; her Dower, both at law in equity. On this account a line is never rc'(iuired in practice, on a conveyance by a trustee, or mortgagee, who happens to be married. So where a man contracts for sale of his land, and afterwards, l)efore conveyance made, marries, as he is a trustee in equity for the purchaser, it would seem that no fine is necessary to complete the title. The point was in effect decided in Hinton v. riinton,(o) on a case of freel)ench, but tlic circumstances of which brought it to a level with the case now put concerning Dower. If huids of inheritance are purchased with purtnership property, and conveyed to one partner only, ])rimd Jacie lie is a trustee for the part- nership, and upon a dissolution, the lands would be distributable among the partners as partnership property ;(;;) but as the partner in whose name the conveyance was taken has the legal estate coupled with the beneficial *ownership in his own share, and as partners are ^ ^^^-.^ -i tenants in common in equity of real estates i)Urchased for the ' ' purposes of trade, it is npprehendcd that his wife is entitled to Dower of this share. But if there is an agreement that on the dissolution of the partnership, the lands shall be valued and sold, it was the opinion of Lord Tluirlow, that the lands must be considered as personal estate, and distributable as such,((/) The implied trust for the partnership may, however, be rebutted by evidence that the agreement for the purchase of the lands was specific, namely, that they should be the separate j)roperty of the partner to whom they were conveyed, and that he should be a debtor to the partnership for the sum paid for the j)urchase. Upon an agreement of this natui'c, it was observed by Lord Loughborough that the lands could never be specifically divided, as if they were part of the partnership stock, but when they come to settle, these lands are one partner's, and he is a debt- or for so much money. In this case, therefore, his lordship determined that the wife was dovvable of the whole.(7') As a qualification to these observations it should be remarked, that if a court of equity sees reason to believe that the j)crson alleged to be a trustee was in point of fact the bo)id fide owner of the estate, and that the declaration of trust which is produced '^was nothing more ^ #in«; "i than a fraudulent contrivance to defeat creditors, or others, ^ J it will not permit this trust to be set up as a bar to Dower against the wife of such bond fide owner. This at least seems to be the proposition to be gathered from Bateman v. Bateman.(5) In that case a father pur- chased land ill the name of his cklest son, who was jiut in possession, and afterwards falling sick, was procured to execute a declaration oi trust for his father, but afterwards recovering, continued in possession and married, and dying without issue, his brother and heir conveyed to the father. The widow of the eldest son having brought a writ of Dower, the father filed his bill in Chancery to be relieved against it, and (o) 2 Vcs. S. 631, 638. Ainbl. 277, recognised in Hrowne v. Ruindle, 3 Ves. 256, which see. ip) Spo Smith v. Smith, 5 Ves. 189. (7) Thornton v. Dixon, 3 Bro. C C. 199. (r) Smith v. Smith, 5 Ves. 189. (s) 2 Vern. 436. 50 PARK ON DOWER. obtained a decree at the Rolls; but upon appeal Lord Keeper Wright dismissed the bill, declaring it to be a secret and fraudulent deed of trust to deceive creditors and purchasers, and the widow was declared to be at liberty to prosecute her writ of Dower. The Lord Keeper must consequently have been of opinion that the purchase by the father was intended as an advancement for the son, and that his name was not used as a trustee for the father, and that under the circumstances, the subse- quent declaration of trust did not prove the contrary, or raise any trust in the father^s favour, but was merely a contrivance for purposes of fraud, having no operation even between the parties. It is not enough that the declaration of trust, as voluntary, was fraudulent against creditors ^^„ -, under the statute-law; *if good as against the party, it was L -J clearly an equitable bar to Dower, as executed before mar- riage. The doctrine of the Lord Keeper must therefore have gone further, and was probably founded on the continuing possession of the son after his recovery. [ »iio ] ^CHAPTER VII. 0/ what PROPERTY ivhereof the husband is seised the wife shall be ENDOWED, in respect to the nature and qualities thereof. Assuming the circumstances of jnarriage and seisi7i to have concur- red to give a woman a title of Dower, it remains to inquire on what kind of property of which the husband is seised that title will attach. The words of Littleton(a) are, " Tenant in Dower is where a man is seised of certain lands or tenements:^ The signification of the word "lands" is well known:(6) but, the extent of the word " tenements" has frequently been made the subject of discussion, in consequence of its being the only word contained in the statute De Donis. From the commentary of Lord Coke upon the 14th sect, of Littleton, (c) it appears, that to constitute a tenement, it is not necessary that the thing itself lie in tenure; it is sufficient if it is issuing out of, or concerning, or annexed to, or exerciseable with, corporeal inheritances which may be holden. ^ The word hereditaments *is properly omitted by Littleton, L -'for there may be hereditaments which do not in any degree savour of the realty, although descendible from ancestor to heir, and of such hereditaments as these a woman is not dowable. An annuity in fee that charges only the person, and does not issue out of any lands or tenements, is an instance of this.((/) And although it were originally gi-anted as a rent charge, yet if the grantee, by bringing a writ of annui- ty, elects to take it as a personal annuity, his wife will not be dowable.(e) But if, before any election by the husband, he dies, and his wife brings a writ of Dower against the heir, he cannot say in bar of her Dower (a) Sect. 36. (6) And see Co. Litt. 4. a. In Stoughton v. Leigh, Sir James Mansfield remarks on this passage, that Lord Coke says not a word to explain what is land, or what is a tenement, thinking the import of those terms well known in law. 1 Taunt. 409. (c) Co. Litt. 20. a. ; and see 2 Ves. J. 663. (J) Perk. sec. 347; Co. Litt. 32. a. (e) PerL sec. 273. OP THE KINDS OF PROPERTY" SUBJECT TO DOWER. 51 that he claims the same as an'annuity, and not as a rent charge, for he cannot determine his election by claim, but by suing a writ of annuity,(/) But of all real hereditaments, unless there is some special reason to the contrary, a woman is dovvablc, whether corporeal or incorporeal; as of — A Manor ;(jg-) An Advowson in gross, or appendant;(A) Tithes, Pensions, or other ecclesiastical profits, which came to the crown by the statutes of 27 Hen. VIII. 31 Hen. VIII. and 1 Ed. Vl.(e) A Rent Service; (k) *Rent-charge;(/) [ *112 ] Rent-seek; (m) A common certain, in gross, or appendant;(n) Of franchises, parcel of an honour;(o) Of all tenures which she is capable of;(/?) So, of all liberties and profits savouring of the realty,(5') wherein the husband is seised of an estate of inheritance; as, A Piscary ;(r) Offices,(5) As the office of a bailiff, or parker;(/) The office of the marshalsea of the King's Bench ;(w) [ *113 ] ^The custody of the gaol of Westminster abbey ;(z;) A fair;(t^) A market ;(a^) A dove-house;(3/) Courts, fines, heriots, 8ic.(z) A mill;(a) (/) Co. Litt. 144. b. (g) Bragg's case, Godb. 135; Gouldsb. 37; Cro. 4. (A) F. N. B. 148, 150 (cites 1 E. 1. Dow. 176 ;) Cro. Jac. 621; Co. Litt, 32. a.; Perk, sec. 342, 343. (t) Co. Litt. 159. a. 32. a. ; Sty. 99. (fc) Perk. sec. 345. [1) Perk. sec. 347. (m) Co. Litt. 32. a. Perk. sec. 347 (n) Perk. sec. 342. F. N. B. 148 ; Thel. Dig. 67. 1. 8. c. 5. sec. 15 (cites T. 4 E. 3. 146,) but in dower of common certain, demandant shall not be endowed unless she show the certainty. Godb. 21. (o) Howard v. Cavendish, Cro. Jac. 622. (/.) Style's Pr. Reg. 69. (q) F. N. 13. 18, 148. (r) Co. Litt. 32. a. (cites Bract. 98. 208 ; Brit. 247 ; Flet. 1. 5. c. 23 ; 17 E. 2 ; Dow. 104, 163.) (s) Style's Pr. Reg. 122; Thel. Dig. 67. 1. 8. c. 5. sec. 3. (cites 12 E. 3. Dow. 90,) F. N. B. 18, 149. (0 12 E. 3. Dow. 90; Co. Litt. 32. a. ; F. N. B. 8. (K) marg.; Perk. sec. 342 ; Gilb. Dow. 371. The author of The Woman's Lawyer observes, "an ancient keepership of a park with a fee belonging to it, may be appointed or assigned in Dower ; but so is not a keepership newly granted, and sans fee, which is a charge without gain or utilitv." p. 189. (m) 21 E. 3. .57; Co. Litt. 32. a.; F. N. B. 8. (K) marg. In Hughes on Writs, p. 192, it is said, " note that in every bailiwick or office in which the husband hath a fee, which bailiwick or ofRce the wife may by herself or others sufficiently keep, she shall have dower of it, but of the office of Steward or Marshal of England, which she cannot execute by her- self, she shall not be endowed." (v) Co. Litt. 32. fl.; Theloal. Dig. 67. lib. viii. cap. v. sec. 2. (w) 15 E. 3. Uow. 81; Co. Lilt. 32. a.; F. N. B. 8 (K) n. ; Bro. Ass. pi. 471; Fitzh. Sci. Fa. 122; Gilb. Uses, 371. (x) H. 12 E. 2. Dow. 157; Gilb. Uses, 371; F. N. B. 8 (K) n. iy) Co. Litt. 32. a. (z) Ibid. (a) Perk. sec. 342; Gilb. Uses, 371; F. N. B. 8 (K) a. 52 PARK ON DOWER. It is said by Perkins, that " if a man grant unto me and my heirs to take yearly out of his meadow three loads of hay, and I take a wife and die, my wife shall have Dower thereof. "(6) But "if a man grant unto me and my heirs to take yearly so many estovers in his wood in Dale, as I and my heirs will burn in the same manor of Dale, and I have a wife and die, my wife shall not have Dower of the estovers."(c) Upon the construction of some of the inland navigation acts, it has been decided that shares in those navigations are real estate, and subject to the incidents of real estate. So also it is held with regard to New J- ^... ., River shares, (c^) But generally speaking, *acts of this nature •- -^ negative, by express words, the quality of real estate, as ap- plicable to the shares. In Buckeridge v. Ingram, (e) it was made a ques- tion upon the Avon Navigation Act,(/) whether, if the shares were real property, a widow was entitled to Dower out of them. Lord Alvanley was clearly of opinion upon the language of that act, that the shares were not only real estate, but that they were tenements of which a woman is dowable; and he referred to the old authorities as to a mill, a fair, a piscary, &c. observing, " there can be nothing more like the present subject than the latter, which, without connexion with the soil, is the right of fishing; and if Dower can attach upon that, it is strange if this is not equally real estate."(^) It has already been propounded, that a woman is dowable of an ad- vowson appendant, of a common appendant, and of other thmgs which usually lie in appendancy. It should however be understood as mean- ing nothing more than that she is dowable of such things as are append- ant by reason of her right to be endowed of the manor, &c. to which they are appendant, and not as things to which she can make a sub- r *i 1 e n stantive claim of Dower, for that would be to sever the ap- L ^ pendancy. And this qualification is ^material to be borne in mind, since many things wliich are usually appendant, as franchises, &c. are considered in their own nature indivisible, and that consequent- ly a woman cannot be endowed of them unless she is endowed of the entirety of the thing to which they are appendant. Thus, a woman en- dowed of the third part of a manor to which franchises are appendant, shall not have the third part of the franchises, but, if she is endowed of the entire manor, in allowance of her Dower in all the lands, &c. of the husband, she shall have the franchises as appendant to the manor.(A) This subject will be further pursued in the chapter treating on assign- ment of Dower. It is laid down by Bracton, that a woman cannot claim a thing in Dower, unless she may use and enjoy the thing of which she is dowable sine vasto, exilio, et destructione.{i) In Thynn v. Thynn,(A;) in error {b) Perk. sec. 343 (cites M. 11 E. 3. 85 ; M. 15 E. 81; T. 4 E. 3. 32.) (c) Perk. sec. 341. {(1) See Drybutter v. Bartholomew, 2 P. W. 127; Swayne v. Fawkener, Show. P. C. 207; and see 2 Ves. S. 182. (e) 2 Ves. J. fi52. (/) 10 Ann. Priv. (^) 2 Ves. J. 664. Under the act in question, the undertakers were empowered to make cuts and erections, and to receive certain tolls, payable by all persons and goods navigating that part of the river, thereby giving them, as Lord Alvanley remarked, " a right in and over the soil, and certain real rights arising in and out of the soil. lb. 663. (A) Hughes on Writs, 192 (cites 3 E. 3. Ita Derby, Dow. 103.) (z) Hughes on Writs, 191 (cites Bract. 316. p. 1, 2.) (fc) Sty. 68. OF THE KirDS OP PROPERTY SUBJECT TO DOWER. 53 on a writ of Dower, it was objected among other things, that Dower was (lemandcd of a thing not dowable, viz. of a quarry of stones, which would be to the destruction of the inheritance; and that indeed it was impossible, for a quarry of stones could not be divided by metes and bounds, which must be, if she could endowed of it. And also if the mine and quarry should be divided, the tenant of the land would be prejudiced; and that a quarry could not be divided, they cited Co. Lilt. 164. On the other side it was replied, that a feme is dowa- ^ *, i p ble *of a quarry, and tliat it might l)e divided by metes and L ' J bounds, for it might be divided by the profits, although it could not be divided by the quantity of tlie thing.(/) No judgment appears to have been given on this point. In the late case of Stoughton v. Leigh, (/yj) it became necessary to decide upon the rights of a dowress as to proper- ty of this nature. In that case, the husband was the owner of several mines and strata of lead and coal, some of them in lands of which he was himself seised in fee, and others in the lands of other persons, and which had been granted to him in fee simple.(n) Some of these mines and strata had been opened and wrought, and others not. On a case sent to the court of Common Pleas, the judges of that court certified that the widow was dowable of all her husband's mines of lead and coal, as well those which were ih his own landed estates, as the mines and strata of lead, or lead ore, and coal, in the lands of other persons, which had in fact been open and wrought before his death, and ^ ^ _ .. wherein he had an estate of *inhcritance, and that her right '- ^ ' J to be endowed of them had no dependance upon the subsequent con- tinuance or discontinuance of working them, either by the husband in his life-time, or by those claiming under him since his death. The language of this certificate is perhaps open to some observation. It could scarcely be intended by the court that the widow was dowable of the mines in her husband's own lands as substantive hereditaments. Those mines were parcel of the inheritance, and her life-interest in the lands themselves, or rather in her third part of them, carried with it the legal right to the benefit of such of the mines included in that third part as were opened. That this was all the court meant to express might be gleaned from their observations upon the mode in which the assign- ment was to be made by the sheriff of the husband's own lands. "It was not absolutely necessary (they remarked), that he should assign to her any of the open mines themselves, or any portions of them. The third part in value which he should assign to her might consist wholly of land set out by metes and bounds, and containing none of the open mines. Or he might include any of the mines themselves in the assign- ment to the widow, describing them specifically, if the particular lands in which they should lie should not also be assigned; but if those lands (/) It is not stated in the report that the quarry was in the husband's own lands, but thi« may probably be gleaned to be the fact. On a former day it had been argued, that "here is a demand of such things whereof dower lies not, viz. of a ijuirry of stones, and it nppf.ars not that the quarry -vas open in the life of her liushund; and if it were, that it is improper to demand it by the name of a quarry." To which it was re])lied, that " tiie word quarry is a good word, and well liuown what it means, for (juarrera is au old well known Latin word for it ; and she is as well dowable of it as of a mine of coals, and it shall be intended to be open because she demands it by the name of a quarry." (»n) 1 Taunt. 402. (») So at least it was taken by the court. Vol. XI.— 2 F 54 PARK ON DOWER. should be included in the assignment, the open mines within them might, but were not necessarily to be so described, being part , of the land itself which was assigned; and as the working of open mines was r *iis 1 "°'' waste, the tenant in Dower might work such mines '- -' for her own exclusive ^profit. Or the sheriff might divide the enjoyment and perception of the profits of any of the particular mines as after mentioned;" i. e. by directing seperate alternate enjoyment for short periods. These observations seem fully to admit what the writer apprehends to be without doubt the real state of the law, that the wife is dowable of opened mines in her husband's lands as parcel of the inheritance, and not as distinct or collateral inheritances. INIines in a man's own lands are clearly so far from being distinct inheritances, that they are merely a mode of enjoyment. The right to the soil is the right to the profits of it, subject only to such restrictions as the law has imposed upon the owners of particular estates with respect to the mode of enjoying those profits. On the other hand, it is difficult to understand how tlie admis- sion that the sheriff might assign particular mines not within the lands assigned to her, is to be rendered consistent with this view of the law. If the wife is entitled to the benefit of mines in her husband's lands, merely in respect of her interest in the particular lands under which they lie, how can that benefit be extended to mines under other lands of her husband to which she is a stranger? As well might it be said that the sheriff might endow her of a clump of trees in lands which are not included in the assignment of her Dower. If she is endowed of the land itself upon which the trees grow, she has that interest in the trees which the law allows to a tenant for life, but if the land is not assigned to her, she cannot be substantively endowed of the trees. The mines P *iiq -1 being equally parcel of the inheritance as the *trees, are in ' -* the same predicament. These considerations will probably account for the circumstance which struck the court with some surprise that no mention was made of mines by Lord Coke in enumerating the species of inheritance of which a woman sliall be endowed. It may also be remarked, that if the mines were to be considered in any other light than as parcel of the inheritance, the certificate would appear to be wrong in saying; that '• it was not of actual necessity that the sheriff should assign to her any of the open mines themselves, or any portions of them;" for the law seems to be that the sheriff is bound to assign a third part (either in possession or in profit,) of each species of property of which the wife is dowable. (o) With regard to the mines and strata under the lands of other persons, the subject might perhaps have merited further consideration. Assum- ing the law to be that an interest of that nature though in itself per- ishable, is yet capable of being granted in fee, it may be made a question, if a woman is dowable in any case of such property, how the circum- stance of the mines being opened or unopened can make any difference; the analogy wholly failing between such property, and mines in the lands of her husband, which are parcel of the inheritance. In the latter case, her right to work opened mines arises as a mode of enjoyment, to which, in respect of her interest in the lands, she is entitled; while the (o) See the chapter on assignment of dower, infra. OF THE KINDS OF PROPERTY SUBJECT TO DOWER. 55 denial of her rio ^ suage in demand had time out of mind been called as well ^ ^ { p) 1 Taunt. 406. (c) Liber Succcssionis. 9.:. b. (i) Co. Liu. ni. A.; Bract. 9-3. a.; 2 List. 17. (s) Put. I E. 1. M. 17 ; and see Esch. 4. E. 1. nu. 88. (0 P. 2:5 El. C. H.; Co. Lilt. 31. 6.; Bract, f. 96; Brit. cap. 103 ; Flet. I. 5. c. 23 ; 30 E. 1. Vouih. 298; 17 H. 3. Dow. 1 92 ; 8 H. 3. Dow. 196; 8 H. 3. ib. 191. Sec furtlior on this lioiui in the chai)lpr 011 assicnmciil of dower. («) Co. Litt. 31 n ; 4 H. 3, dower. 180. {v) I Uavm. 72 ; 5 Mod. 64; 1 Saik. 253; 3 Lev. 101; Holt. 2r.O ; Comb. 352; Skin. 593 ; Cases B. R. 84. 56 PARK ON DOWER. Gerard's Bromley, as Bromley Hall; and that Sir Thomas Gerrard being seised thereof in his demesne as of fee, King James I. by letters patent under the great seal of England, created the said Sir Thomas Gerrard Baron of Gerard's Bromley, and that he was commorant there with his family, and so the messuage in demand became, and had ever since continued, caput baronise, and brought down the title both of the barony and messuage to himself, demanding judgment if the demandant ought to be endowed thereof. The Court of Common Pleas, upon demurrer by the demandant, gave judgment for her; upon which, the tenant brought error in the Court of King's Bench, and assigned in part, that the demandant ought not to be endowed of this messuage, being caput baronix, because it would tend to the dishonour of the dignity to have the capital messuage divided and dismembered; but, it was for the honour of the realm that it be kept entire, and for authorities were cited 1 Inst. 31. b.\ Fitz. Abr. Dower. ISO; Bract, lib. ii. 170. b.; P. 4. H. III. Rot. 7. For the defendant in error it was argued, that the authori- ties cited of the other side were of feudal baronies, of which there were not any remaining at that time except Arundel. And of this opinion was the whole court. And this privilege was allowed to them, because they ought, upon necessity, to defend the realm to which they were bound by tenure. For the King, at the creation of the barony, gave to the baron lands and rents, to hold of him by the defence of the realm. if, no -I I^iJt then this cannot be a feudal barony, *for it was in the L ^ seisin of the Gerrards before, and tlierefore was not given to the Gerrards by the King at the creation of the barony, to hold of him. And Rokeby, Justice, said, that this was the reason of the judgment in the Common Pleas. Of some tenures a woman is not dowable by reason of her incapa- city.(7o) If A. holds land of B. by homage, fealty, and lO.y. rent, and B. dies, his wife shall not be endowed of tlie homage and fealty, but shall have a third part of the rent as a rent-seek. (a.-) And there are some things whereof it is said a woman shall not be endowed, because they are so entire in their own nature, that they can- not be divided: as of a hundred. (y) Neither shall a woman be endowed of a common sans number, for otherwise, say the books, the common would be overstocked. (2) In a case reported by Godbolt, Windham, J., said, that if the common be uncertain, she shall be allowed for it; but Meade, J., said, he did not know how the allowance should be made.(a) So far as Dower is a legal right, and is to be pursued by legal reme- dies, it is obvious, that the estates in respect of which it is claimed, can be such only as have existence in the contemplation of a court of law. .- *,p. -1 It never could become a question, therefore, ^whether the *- -' wife of a cestui que trust could have a title of Dower at law. But a question which has been the subject of much agitation, and upon which, though now settled, the rule was for a long time in a vacillating (w) Styles. 69. (x) Kelw. 126; Perk. sec. 345, 346. (y) Styles. Pr. Reg. 68. (r) Perk. sec. 341 (cites 2 E. 2. 123) Godb. 21. \a) Anon. Godb. 21. OF DOWER AS TO EQUITABLE ESTATES. 57 state,(/;) was whetlier courts of ^equity, having in most cases , )»io«; i applied the rules and incitlents of legal estates to the owner- L " J ship of the trust, should or should not follow that principle in relation to Dower, and give the wife of a cestui que Iruttt an etjuitahle equiva- lent for her Dower at law, out of the trust estate. liefore the statute of uses, the courts of equity, alihough in many cases tliey made the estate of the cestui que use sul)ject to the incidents of legal estates, yet, for some reasons which can n^mf on!}' he conjec- tured, did not think (it to give Dower of an use.(c) Perhaps the courts, considering such interests only as arose by contract the proper subjects of their jurisdiction, looked upon Dower as a right arising solely by implication of law, and therefore not within the pale of equitable cog- nizance. Chief liaron (liibert states as a reason, that the chancery would not allow the fcoilurs to be seised to any body's use but those that were jiarticularly named in the trust;(^) and this does not seem altogether imi)robal)le, looking at the use, as courts of equity did then look at it, as the creation of the parties, and therefore to be solely go- verned by their expressed intent. However this may be, when, in consequence of the construction which had been put upon the statute of uses, chancery trusts had been introduced in practice, conveyancers, regarding them as equivalent to uses before the statute, and governed by the same rules, adoj)ted tiie plan of putting the legal estate in trustees, in cases where it was an object to avoid the attachment of a title of Dower, and the "efficacy of this mode was so little doubted ^ *ior of, that it became a very general practice. Here arose the L ^ ' difficulty; for, in the mean time, the doctrine of trusts had become the subject of j)rogressive consideration in courts of equity, and they had by degrees formed a system of equitable jurisdiction, witii regard to the estate in the trust, in which they had been cliiefly governed by analogy to the rules of law, and under which (the same objection not occurring,) (6) In Colt V. Colt (12 Car. 2.) 1 Ch. Rep. 254. 2 P. W. 640, cited ; the plaintiff filpil her bill, among other things, for dower of a trust estate, and the bill was dismissed, so fur as reialet! to the trust estate. In Fletcher v. Robinson (1053,) Pr. Ch. 2.'i0, cited ; 2 P. W. 710, cited from L. f?., dower was decreed out of a trust estate, and that the conveyance of the legal estate should not be given in evidence at law ; and the deed being set up at law notwithstanding, and the plain- tilfconseciuently nonsuited, the court afterwards ordered a commission to set out the dower. In Kadnor v. Hotheram (169(!,) I'r. Ch. 65, it was said by Lord Chancellor Somers, that all agreed that a woman cannot be endowed of the tntf,t of the inheritance, as she may of the inheritance itself. In lioUomley v. Fairfax (1712,) Pr. Ch. 336 ; 1 Ch. Rep. 254, it was clearly agreed, that if the husband before marriage conveys his estate to trustees and their heirs, in such manner as to put the legal estate out of him, though the trust be limited to him and bis heirs, that of this c(|uitable estate the wife shall not bo endowed, and that the court had never gone so far as to allow her dower in such a case. Ill D.ily V. Lynch (1715,) 1 Uro. P. C. 538, it was said, that there were several precedents in Ireland, where the widows of transplanters, who, in salisfailion of their old estates, had lands given to them under the government of Oliver Cromwell, by transplantation, and conse- quently had but ccjuitable estates, had obtained decrees in the Court of I'hancery in that kingdom, for the third part of such eiiuitable estates and transplanted interests. In Ambrose v. Ambrose (1717,) 1 P. W. ?/:i\; Printed cases in D. P. 1717. it was con- sidered clear, that a woman was not dowable of an estate bought I)y her husband in the name of a third person. 'Phe subscciuent cases are mentioned in the text. ((■) l Co. 1. b.; Perk. sec. 349; I Co. 123 ; Uy. H. pi. 47; 3 P. W. 233. ((/) Gilb. Uses, 25, 2 P 2 58 PARK ON DOWER. they had made the trust subject to curtesy .{e) Upon an attentive pe- rusal of the cases, it will be found, that after much hesitation, whether to prefer consistency of principle, or security of titles, the latter motive at length gained the ascendancy, the existence of an anomalous distinc- tion being regarded as of less importance than the extensive mischief which would have been produced by disregarding a practice which had been applied to perhaps half the titles in the kingdom. Some judges liave indeed endeavoured to vindicate, upon principle, the rule which denies Dower of a trust, but the consideration above stated has been the substantial and predominating ground upon which that rule is now decisively established without danger of further discussion. This was well stated by Lord Redesdale in D'Arcy v. Blake. (/") r *i P7 1 " ^^^ difficulty (he observed,) in which *the courts of equity »- -J have been involved with respect to Dower, I apprehend originally arose thus: they had assumed as a principle in acting upon trusts, to follow the law; and according to this principle, they ought in all cases where rights attached on legal estates, to have attached the same rights upon trusts; and consequently to have given Dower of an equita- ble estate. It was found, however, that, in cases of Dower, this principle, if pursued to the utmost, would affect the titles to a large proportion of the estates in the country; for that parties had been acting on the footing of Dower upon a contrary principle; and had supposed that, by the creation of a trust, the right of Dower would be prevented from attach- ing.(,o-) Many persons had purchased under this idea; and the country would have been thrown into the utmost confusion if courts of equity had followed their general rule with respect to trusts in the cases of Dower. But the same objection did not apply to tenancy by the curte- sy; for no person would purchase an estate subject to tenanc)' by the r *ioQ 1 curtesy, without the concurrence of *the person in whom ■- -' that right was vested. This I take to be the true reason of the distinction between Dower, and tenancy by the curtesy. It was necessary for the security of purchasers, of mortgagees, and of other persons taking the legal estates, to depart from the general principle in case of Dower, but it was not necessary in the case of tenancy by the curtesy. "(A) In the case of Banks v. Sutton(^■) (1732,) Sir Joseph Jekyll was (e) See the cases of Watts v. Ball, 1 P. W. lOS. 2 Eq. Ab. 727; Sweetapple v. Bindon, 2 Vern. 536; Casborne v. Scarfe, 1 Atk. 603. 2 Eq. Ab. 728 ; Cunningham v. Moody, 1 Ves. 174; Dodson v. Hay, 4 Bro. C. C. 404 ; Roberts v. Dixwell, 1 Atk, 609; Hearle v. Greenbank, 1 Ves. 299. 3 Atk. 716, for authorities on this head. (/) 2 Sch. and Lefr. 388 ; and see also 1 Bl. 160, 182. {g) Lord Chancellor Talbot, in Attorney General v. Lockley, Sugden's Vend. Appendix. 32, speaking of the practice, says, " I mention this, because it is hinted at as if the practice of conveyancers was not of great weight ; and truly it is not in their power to alter the law: but when there is a received opinion, and conformity of contracts and settlements thereupon, it is extremely dangerous to shake it, which would disUirb the possession of many who are very quiet, and think themselves very secure ; therefore, it ought to be done only on the clearest and plainest ground. In the present case, I cannot say they are mistaken ; because they have gone on this ground, that trusts are now what uses were at the common law, where a wife was not dowable of an use." (/i) Under this view of the subject, it is difficult to understand why the denial of dower of trust estates has been extended to frecbcnch in copyholds, unless for the sake of analogy to the anomalous case of dower. See Forder v. Wade, 4 Rro. C. C. 525. (t) 2 P. W. 700. OF DOWER AS TO KQUITABLE ESTATES. 59 strongly inclined to take a distinction, (though he decided the case on another ground,) between a trust created hy the husband himself, of which he admitted a woman was not dovvable, and a trust created by another person. "That the wife shall not have Dower of a trust crea- ted by the husband," he remarked "or (which is all one,) of a purchase made by him in a trustee's name, may be reasonalde, since it may be presumed to be done with intent to bar Dower, and every man may do as he pleases with his own. Accordingly, it has been commonly prac- tised for a purchaser to take a conveyance in his own name and in the name of another person, as trustee, purposely to prevent Dower." Ho then proceeds to cite the cases of Robinson v. Fletcher,(A:) Otway v, IIudson,(/) &c. and after observing upon them, ho added, " after all these reasons and authorities, *I must declare, that I would j- »,£,„ -i not take it upon myself to deternine whether a wife shall L " J have Dower out of a trust of inheritance, where it is created, not by Ihe husband, but by some other person, and no time limited for conveying, the legal estate; when that comes to be the case, it will be time enough to do it." In Chaplin v. Chaplin, (m) which was decided soon after,, one of the questions was, whether the plaintilf was dowable of an equita- ble rent charge created by a settlement to which the husband was no l)arty; and after much debate and consideration. Lord Chancellor Tal- bot was of ojjinion, that the cases cited did not bear out tlie general pro- position that there shall be Dower of a trust. In Attorney General v. Scott (1735,)(n) Lord Chancellor Talbot made the same decision upon an equitable estate taken by the husband by devise. The distinction con- tendeil for by Sir Joseph Jekyll does not seem to have been mentioned in argument in either of these cases, although both of them involved- it. in Godwin v. Winsmorc,(o) however, Lord Ilardwicke expresssly adverted to the point. " It is an established doctrine, now," he ob- serveil, " that a wife is not dowable of a trust estate. Indeed, a distinc- tion is taken by Sir Joseph Jekyll in Banks v. Sutton, 1 P. \V. 707, 709, in regard to a trust, where it descends or comes to the husband from another, and is not created by himself; but I think there is no ground for such a distinction; for, it is going on suppositions which hold on both sides; *and, at the latter end of the report, Sir Joseph ^ *iqn -i Jekyll seems to be very dilVulent of it himself, and rested L J chieily on another j)oint of erjuit}^ so that it is no authority in this case. But (he added,) there is a late authority in direct contradiction to the distinction above taken in Banks v. Sutton, the case of the Attorney General v. Scott," &.c. So also, in Burgess v. VVheate, Sir Thomas Clarke remarked that the distinction made by Sir Joseph Jekyll was founded on too precarious reasoning to go upon. " The husband," he added, ''^ found the estate subject to the trust created by the ancestor: who can say that he intended the wife to be dowable.'' Who can say, that if he had not found the estate under a trust, he might not have creatcil such a trust?"( j)) In the state of the law in modern times, as to etjuitable estates, it does (t) Supra, p. 124. note. (/) 2 Vern. .083. {m) 3 \'. W. 229. (»») Ca. t. Talbot. 138 ; and more fully, Suc;ci. Vend. Appendix. 32. (o) 2Atk. 525. " (.;>) 1 lil. 138; and sue lb. IGl. 60 PARK ON DOWER. not admit of a doubt that the rule as now settled, denying Dower out of a trust, is a departure from principle; but in considering this question from time to time, some of our equity judges appear to have unneces- sarily imposed on themselves another difficulty, and to have argued the case upon a ground which is very questionable. Much of the embarrass- ment which has occurred in deciding how far the right to Dower should prevail, as a matter of substantive jurisdiction, in courts of equity, par- ticularly in applying it to trusts and equities of redemption, has arisen from the notion that Dower is not merely a legal, but also an equitable right. To make out that it was a right of that description, and to bring ^ -.it within the grounds of original equitable jurisdiction, it L -I was necessary that it *shou]d originate in contract, either express or implied; and several judges have gone the length of arguing upon it accordingly. The bulk of the argument of Sir Joseph Jekyll in Banks v. Sutton, (^) is directed to prove, that Dower is a moral and equitable, as well as a legal right. "The relation of the wife," he ob- serves, "as it is the nearest, so it is the earliest; and therefore the wife is the proper object of the care and kindness of her husband ; the husband is bound by the law of God and man to provide for her during his life, and af- ter his death, the moral obligation is not at an end, but he ought to take care of her provision during her own life." All this is perfectly true, but nothing to the purpose. That the wife has a 7^ora/ right to a provision, is a consideration of legislative, and not of judicial application; courts of equity do not sit to enforce naked moral obligations; neither does the mo- ral obligation of a husband to provide for his wife dictate any such specific and defined provision as thatentitled Dower. The result of the mere moral obligation is equally undefined as that of a parent to provide for his children. That the law has followed up this obligation, in the case of the wife, with an arbitrary imperative provision, is nothing to the pur- pose, but leaves it merely to the original question (a question upon which it is true that convenience has got the better of principle) whe- ther in this instance equity should follow the law. " But," adds Sir J. -, Jekyll, " Dower arises from a contract made upon a valuable L "" J consideration; marriage being in its nature a *civil, and in its celebration a sacred contract, and the obligation is a consideration moving from each of the contracting parties to the other; from this ob- ligation arises an equity to the wife, in several cases, without any pre- vious agreement, as to make good a defective execution of a power, or defective conveyance; or supply the defect of a surrender of a cop}'- hold estate; in all which equity relieves the wife, and makes a provision for her, where it is not unreasonable or injurious with respect to others."(r) This argument confounds the contract itself with the ex- traneous legal fruits of the contract. It is the very absence of contract for the provision of the wife, which calls into operation the positive law to counteract the injustice which might arise from the omission of such contract. Strictly speaking, the engagement between the parties is nothing more than a contract to enter into the respective relations of matrimonial union, and the law, contemplating the consequences of {q) 2 Eq. Ab. 382. n. 2 P. W, 634; and see also Pr. Ch. 244, per Sir John Trevor, in Dudley v. Dudley, (r) 2 Eq. Ab. 382 n. OF DOWER AS TO EQUITABLE ESTATES. 61 that contract, by its own silent operation raises a provision for the wife in the event of her surviving, intlepcndent of, and without reference to the agreement of the parties. It may, indeed, be said, that allowing the right to J)ower does not enter into the essence of the original contract, yet, the general understanding that the wife should be so provided for by force of the marriage ordinance, does in fact form a basis of the con- tract, and as such a matter of ecjuitablc support. But, even this argu- ment fails to bear out the position; for, as was ingeniously ^ »iqQ t remarked by Lord Chancellor *Tall)ot,(5) " the answer is, L ^ equity, where there is a valuable consideration, will supply form. But hath she contracted for this particular estate? [the trust estate] No, for nothing but what the marriage implies, which is that she shall have Dower of what she is dowable by law; and then the question comes to this, whether she is dowable by law of a trust." The same answer ap- plies with equal force to another argument of Sir Joseph Jekyll's, viz. that the right of Dower is founded upon express contract. " By the common law (he observes) where the husband had an inheritable estate, it was part of the marriage contract that the wife should have her Dow- er, one species of which wrs ad ostium ecclesiie.'^ Litt. sec. 39. 'When the husband comes to the church door to be married, after affiance or troth plighted between the husband and wife, he endows her,' which implies that such endowment is before the marriage is completely so- lemnized; and though Lord Coke says such Dower is «/?e;' the mar- riage solemnized, this is a mistake. (^) Also by the Romish ritual used here ^before the Reformation, it appears that all marriages were cele- brated ad ostium ecclesise; so that it should seem to be incumbent on the husband if he could do it, to endow his wife, and to specify the Dower upon the marriage; instead of which the general words of eii- doiving with all his tvorldly goods, in the office of matrimony now in use,'came in; from whence it is to be inferred that Dower ^ *-ixa i is, and time *out of mind has been, a part of the marriage ^ -' contract when it came to be publicly solemnized; and, if so, a right of Dower is founded on contract, and is therefore an equitable right.''(w) It is difficult to conceive any reasoning more loose than the above, but even had it been otherwise, its application to equitable estates would have been sufficiently rebutted by Lord Talbot's observation before stated. Of the jjassage in the marriage service of the Church of Eng- land, alluded to by the learned judge, it is perhaps difficult now to point out the real history. That service was not composed by lawyers; and the divines who inserted it probably intended nothing more than to cx- j)rcss the moral duty of the husband to make his wife the partaker of his worldly fortune. (i;) If the lawyers had been *con- ^ ^ -, suited on the subject, and it had beeu proposed by them to •- ^ -^ (5) Attorney General v. Lockley. Sugden's VenJors. A pp. 34. (/) The mistake is not with Littleton, but witli 8ir Joseph Jckylh See Perk, sec 437, Hughes on Original Writs, 176. 2 Bl. Com. 134, note. {u) 2 P. W 638. 2 Eq. Ab. 382, n. (•t>) In a note to 2 Bl. Com. 134, are the following observations: " When special endow- ments were maile ud ostium ecclesi.v, the husbaml, after alliance made, and troth jilisihted', used to declare with what specific lands he meant to endow his wife, ijuod ilotiit earn ilr tali rncmcrlo mm pertitienUis, &c. (Bract. I. 2. c. 39. sec. 6.) and therefore in the old York ritual (i^eld. Ux. Hebr. 1. 2. c. 27.) there is at this part of the matrimonial service the fol- 62 PARK ON DOWER. engraft a species of Dower ad ostium ecclesigs upon the formulary of the Protestant church, they would surely have suggested some other mode of expressing it than that of " with all my worldly goods I thee endow;" and if the effect of that expression he such as Sir Joseph Jekyll has represented it, it is difficult to say how a man can answer to his conscience in making that declaration in the face of the church, who has the day before executed a settlement for barring his wife's Dower. These observations are of little importance at this day in application to the question of Dower out of equitable estates, which is too well settled on other grounds to be now agitated; but as it is impossible to define the influence of plausible, though fallacious, reasoning, under the sanction of great names, the writer has thought it might be not wholly without use to direct the attention of the reader to the fallibility of the argument in question. In the case of Banks v. Sutton before referred to, Sir Joseph Jekyll decided, that where there is a time limited for conveying the legal estate, and that time expires in the life of the husband, there, without regard to the question of Dower out of trust estates, the wife shall be dowable, upon the principle in courts of equity, " that when an act is to be done by a trustee, that is to be looked upon as done which ought to be done; P *] op -| consequently the estate directed *to be conveyed to the plain- •- -^ tiff's husband ought to be considered as actually conveyed to and vested in him; and then the plaintiff hath a right to Dower out oi\V^{w) This doctrine is now generally considered as over-ruled, and does not seem to have been ever much relied on. In the subsequent case of Crabtree v. Bramble, (.r) Lord Hardwicke observed, although without referring to Banks v. Sutton, " that it must be allowed equity follows the contracts of parties in order to preserve the intent, by carry- ing it into execution, which depends on this principle, that what has been agreed to be done for valuable consideration is considered as done, and holds in every case except in DowevP This observation was applied more particularly to the case of money agreed to be laid out on land, as to which no doubt is now entertained that a woman is not dowable. (y) In Curtis v. Curtis, however, Lord Alvanley observed, " it is now too late to contend that the widow can have her dower out of any estate in which her husband had not the legal fee; for Banks v. Sutton is not now to be supported; not that there appears to have been any decision directly contradicting it, for Attorney General v. Scott did not mean to find fault with Banks v. Sutton. However it is now a settled point,"(r) From the generality of the proposition that Dower can only be of an estate of which the husband had the legal fee, it seems lowing rubric : — Sacerdos intemget datem vud'ieris; et si terra ei in dotem detur, tunc dicutur psuhnus iste, &c. When the wife was endowed generally {^tbi quis uxorem suam dofavirit in generali de ownihiia tcrris et tenementis. Bract, ib ) the husband seems to have said " with all my lands and tenements I thee endow," and then they all became liable to her dower. When he endowed her with personalty only, he used to say ' wi.h all my worldly goods' (or as the Salisbury ritual has it, ' with all my worldly chattel) I the endow,' which intitled the wife to her thirds, or pars rationabilis of his personal estate, which is provided for by Mag. Ch. cap. 26, (hough the retaining the last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance which she acquires during coverture out of her husband's personaltv." (w) 2 P. W. 706. 2 Eq. Ab. 385. {x) 3 Atk. 687. ly) See 1 Ves. S. 176. 1 Bro. C. C. 499. (r) 2 Ves. J. 124. OF DOWER AS TO EQUITIES OF REDEMPTION. 63 quite *clear that LonI Alvanlcy intended to be understood . ^^^^ -, that lianks v. Sutton was not law on any point on which it •- turned. Although a case where, if huids had been purchased, or con- veyed, according to the terms of an agreement, the wile w(jul(| have had a title of Dower at law, may certainly he distinguished from that of a mere common trust, it cannot he said in one case more than in the other that the husband had the legal fee. The rule that a woman is not dowable of an equitable estate being once established, it follows, as a necessary consequence, that if the hus- band makes a mortgage in fee before marriage, the wife will not be dowal)Ie of the equity of redemption. If indeed the money was paid on the day named in the condition, the estate would revest in the husband, and the wife become dowable; but no subsequent payment of the mort- gage money by the husband will render her dowable, if he dies before a reconveyance of the legal estate. The question of Dower of a mere equity of redemption, like that of Dower of a trust, has undergone much fluctuation of opinion. In Banks V. Sutton, already cited. Sir J. Jekyll, after reviewing the cases which bore upon the question, declared that he " did not know nor could find any instance where a Dower of an equity of redemption was controvert- ed, and adjudged against the dowrcss; and as there were authorities in cases less favourable, therefore he declared that the plaintifl' being the widow of the person entitled to the equity of redemption of the mort- gage in question (which was a mortgage '-in fee) had a right ^ ^.^^g -. of redemption, "(a) But in the subsequent case of Dixon v. L Saville,(6) the doctrine of Banks v. Sutton was, after long argument, over-ruled by the Lords Commissioners of the Great Seal, upon the ground that the question was nothing more than whether a woman was dowable of a trust, and that this point was so much settled that it would be wrong to discuss it much. This has been since recognised to be the law by universal practice, and by several of the most learned judges, (c) Mr". Powell in his Treatise on JNlorlgagcs has observed, that "it is necessary to remark that there were some circumstances which distin- guished the case of Banks v. Sutton from this of Dixon v. Savilie, par- ticularly that, in the former case, the mortgage was made by the ancestor of the husband, whose widow claimed Dower, and the estate came to him by devise subject thereto; also, that the testator seemed to have intended, that the mortgage should be paid off out of his personal estate, and tiie rents and prolits of the real estate, which would accrue belore the devisee attainetl his age of twenty-one, at which time a moiety ot the legal estate was positively directed to be conveyed to him. For although the former circumstance of the mortgage descending does not appear to me to aflbrd any argument of considerable weight in favour ot tiie dowress, because the only inference that could be drawn ^ «i3 ) i from *that circumstance would be, that the mortgage being L made by the ancestor, and not by the husband, it could not be concluded that there was any intention in the husband to make the mortgage a means of depriving the wife of Dower (wliich was a distinction that had (a) 2 P. W. 7 IS, 719. (b) 1 Bro. C. C. .32fi. 2 Pow. Mort. 720. (c) See 3 Dro. C. C. 205, per Lord Thurlow in Williams v. Lamb. 2 Sch. & Lefr. 388. per Lord Kedesdale in D'Arcy v. Blake. 64 PARK ON DOWER. been attempted to be made, in cases when the wife claimed Dower of trusts, between trusts descending, and trusts made by the husband,) but which inference could not be applied to the case of a mortgage, because whether that descended to, or was made by the husband, the intention with which it was made, was obviously with a view to raise money only, and could not by any argument be made to supply an inference, that it was done with a view to prevent Dower: yet the latter circumstance might perhaps be considered as deserving more weight; for, if the trus- tee, who was himself the mortgagee, by misapplying the personal estate of the testator, and the rents and profits of his real estate, was himself the cause of the mortgage standing out, and made this a reason to hold back the conveyance of the legal estate, according to the directions of the testator, there seems as much occasion for the application of the rule of equity of considering that as done which ought to be done m order to let in the widow, in equity, to the same degree of title notwithstand- ing the mortgage, as she would have had if the trustee had conveyed the estate to the husband at the time directed, as there was for the application of it for that purpose, notwithstanding a trust. " And it is observable that in this point of view, the cases of Banks V. Sutton and Dixon v. Sir Geo. Saville, are perfectly reconcileable, and ^ may stand *together, the former being considered as esta- [ 140 J ^igj^jj-jg |-i^g general principles of law, that the wife of one entitled to an equity of redemption of a mortgage in fee, shall not be entitled to Dower out of such estate; the latter, as an exception to that general rule, as falling under another and distinct principle of equity. Sed quxre.^\d) These observations, of the value of which Mr. Powell himself appears to have entertained doubts, will probably be considered as disposed of by the result of the authorities already considered as to trusts. The case of a mortgage for years, differs, as relates to Dower, in this, that there is a legal reversion to which the equity of redemption is knit, and of which legal reversion the wife is dowable. As it is the doctrine of courts of Equity, that every person having an interest in the reversion shall have an equivalent interest in the equity of redemption, the dowress may consequently redeem the mortgage. This point will be considered in a subsequent chapter, which treats of the nature and incidents of an estate in Dower. 1^ *141 ] *CHAPTER VIII. Of the circumstances under which a title op dower will be de- feated after having once attached. It has been already shown that titles of Dower attach upon estates of inheritance, notwithstanding those estates are defeasible by reason of de- fect of title.(a) But, Dower being an interest annexed to the defeasible estate, the avoidance of the right to that interest is consequential upon {d) 2 Pow. Mort. 731. (a) See p. 37, 50, supra. TITLES OP DOWER HOW DEFEATED. 65 the restoration of the seisin under the prior title.(6) In these cases, the seisin of llie hiishiind is not merely determined, hut it is defeated; or, as the old hooks still more expressively term it, disairirmed. The restora- tion of the ori^^iiial seisin is not eonsidered as merely a f^iviii^; hack to the owner of that which had heon unjustly taken from him, with all the prejudice of an intermediate ownership, hut, in intendment of law, it is considered as purging and aholishins; the intermediate seisin, and all its consequences, and for purposes of title, negativing the existence of such seisin. The person having the right is not to he merely restored, hut he is to be placed i)i si a hi rjuo.(c) Therefore, if the owner of an estate is disseised, and the disseisor marries, and afterwards the disseisee enters upon, or recovers against the disseisor, *thc title of Dower in the wife of the disseisor j- *i^2 1 is therchy defeated ;(<^/) and if the disseisor had died seised, L J and his heir had actually endowed the wife, and the disseisee had re- covered the lands by judgment against the heir and dovvress, the estate of the dowress would he at an end.(e) So, if a man seised in right of his wife, before the statute of 32 Hen. VIII, c. 28, made a discontinu- ance of his wife's lands, and after his death, the wife recovered the lands against tlic disconlinucc, the wife of the discontinuee should not have Dower of these lands, for the seisin of her husband was defeated bv elder title. (/) ' The wife of a bargainee or releasee of a tenant in tail, is in like man- ner defeated of her Dower by the entry of the issue.(^) In a note to Mr. Serjeant Williams's edition of Saunders's Reports,(A) Margery Cally's case (24 E. III. 2S. b.) has been cited with disapprobation, as *inconsistent with this doctrine. « In that case (the learned ^ .^^^^ -. Serjeant remarks), the tenant in tail who had released to l- J the husband of the demandant in fee, was dead, and the demand of Dower was against the issue in tail, tvho had entered, and thereby de- termined the estate in fee out of which the Dower was claimed." Mar- gery Cally's case, however, is strictly consistent with the general prin- ciple of law on this head. That case was determined upon another ground, overlooked by the learned editor of Saunders, that the lease and releas'j of the tenant in tail being icitli warranty, was considered to work a discontinuance, and therefore the entry of the issue was not con- geable. The case is correctly stated belovv.(/) (i) Gilb. Uses. 399. (c) See Litt. sec. 358 ; 1 Roll. Abr- 474, &c. ((/) Countess of liarkshire ▼. Vanlorc, Winch. 77. (e) As to the lands assigned to the wife in dower, it is not nece.«sary that the disseisee should resort to a real action, notwithstanding a descent cast, for the endownient defeats the descent 7Hoari those lands, and the disseisee may therefore bring ejectment against the dow- ress. See Co. Litt. 240. b. But, " if after the dying seised of the disseisor, the disseisee abate, against whom the wife of the disseisor recover by confession in a writ of dower, in that case, though the descent be avoided, yet the disseisee shall not enter upon the tenant in dower, because the recovery was against himself; but, if he had assigned dower to her in pais, some say he should enter upon her. Ih. -41. n. ( f) Dyer. 41. a. citing a case in the time of Ed. 1. In that case, the wife of the dis- continuee recovered her dower for bad pleading on the purt of the tenant, " which she could not have done (adds Dyer) had the pleadings been good.' (g) 10 Co. 9G. a. 98. a. in Seymour's ease. (/«) Vol. l.p. 2G1. a. (i) Dower, land was given to husband and wife in tail, who had issue two sons; the baron dies, the feme makes a lease for years to the eldest son, and afterwards releases to him all her right 7uith warrarili/ to him and his heirs, and he takes a wife, and dies in the lifetime of his Vol. XL— 2 G 66 PARK ON DOWER. The law of remitter affords another example of the avoidance of the title of Dower, attended with the peculiarity that the seisin of the hus- band, and consequently the title of Dower, is defeated in the instant of his death. Thus, if a man seised in tail general, discontinues in fee, and ^ -, takes back an estate *in fee simple, and afterwards takes a [ 144 J ^yjfg^ ^pj Y\as issue, and dies, the title of Dower which at- tached upon the seisin of the fee, is defeated by the remitter of the issue to the estate tail;(A!) for the seisin of the fee being cast upon the issue, immediately upon the death of the husband, the issue is consequently restored to the estate tail, and thus the seisin of the fee, with all its in- cidents, is defeated, or, as Lord Coke emphatically expresses it, " van- ished bv the remitter," to the same extent as if the issue had recovered by formedon. So, if lands are given to husband and wife in special tail, who discontinue by fine sur grant and r-ender at the common law, and retake an estate in tail general, and have issue, and the wife dies, and the husband marries a second wife and dies, in this case also the title of Dower of the second wife is defeated by the remitter.(/) But, it is said, that if in such case, a stranger abates upon the death of the husband, the issue may bring a formedon of which estate tail he will; and, if he brings his action of the gift by which the wife should be dowable, he shall not be remitted, and the wife shall have her Dower. (m) A similar case of remitter is cited by Fitzherbert, in the instance of a man, who having a right of action, disseises the tenant, and dies seised, whereby his heir is remitted, and the wife's title to Dower consequently defeated, " for that estate which the *husband had is deter- L J mined, for that was an estate in fee by wrong, and the heir hath the estate in fee which his ancestor had by right."(n) It is an important point in pleading, that in these, and most other cases of the same nature, where there was a seisin in the husband during the coverture, but which seisin has been defeated, the tenant to the writ of Dower, mw^i plead the special matter, as the remitter, &.c. and cannot o-ive it in evidence upon the general issue of ne unques seisie que Dower, &c.; for, upon that issue, the charge of the jury is solely upon the seisin, and they must find for the demandant, (o) It has been already stated, that* a recovery by judgment against the husband in a real action, defeats the title of Dower of the wife. This proposition must, however, be understood as confined to recoveries by actual title, and does not extend to feigned or common recoveries. By the statute of Westminster 2, c. 4, it is recited, that by the common law, mother, without issue, and after the mother dies, and the second son enters, and the feme of the eldest son brings writ of dower and recovers judgment, 24 E. 3. 28; Bro. Dow. pi. 50. This case was indeed considered doubtful at the time, upon the question whether the release ■with warranty did work a discontinuance, for it seems, adds the book, that the release with warranty of the tenant in tail, is only a grant of her estate, and although she gave a fee, yet the younger son is remitted to the tail, which is paramount the title of the feme now demandant. (Jt) Fitzh. N. B. 149 (F.) (cites 41 E. 3. 30.) Dyer. 41. a.; and see 1 Leon. 37, in Par- tridge V. Partridge, Co. Litt. 31. b.; Gilb. Uses. 393; 1 Leon. 66. (/) Bro. Dow. pi. 14 (cites 44 E. 3. 26.) (m) Hughes Writs. 152 (cites 46 E. 3. 24.) (n) F. N. B. 149. (F) (cites 16 E. 3. 21.) Gilb. Dow, 393 (cites 10 E. 3. 27.) (o) Dyer. 41 . a.; 1 Leon. 66 ; Co. Litt. 31. b. Osmond's case, Noy, 66 ; but see Countess of Berkshire v. Vanlore, Winch. 77, contra. I TITLES OP DOWER HOW DEFEATED. 67 where a husband being impleaded, had given up llie land demanded to his adversary, dc piano, viz. by rcddition, the justices upon a writ of Dower brouj>;ht by the wife would adjuilge her iicr Dower, ]iut that wheFc iIh! land was lost by default, there was a difference of opinion; some justices holding that the widow was, and others that she was not *entitled to Dower. To remove this doubt, it was declared - ,, .^ -, by that statute, that in both cases the woman demanding her ^ J I)ovver should be heard; and if it was alleged against her that her hus- band lost (he land by judgment, so that she ought not to have any Dower, and upon inc]uiry it was fountl to he a judgment by default, then that the tenant should further show that he hoti and hath right in the land ac- cording to the writ wliich he had brought against tlie husband; and if he proved the husband had no right, nor any one but himself, then that the judgment should be quod tencns reccdut quietus, and quod uxor nihil capiat de dote; but if he could not show that, then that the woman should have judgment quod 7'ecuperet dotcm suam. Perkins remarks, that the statute of Westminster 2, cap. 4, is but a recital of the common law; " for, the common law ougiit to i)e intended where the husbaufl had right, and he who rccovereth no riglit; and so is the law at this day, if the husband lose by default, &c. And so was the common law before the making of that statute; so that statute is but an aflfirmancc of the common law on that point.(/;) And therefore, at the common law, before the making of that statute, if a man had been seised of land in fee by a rightful title, take a wife, and is disseised, and re- enterctii upon his disseisor, and his disseisor arraign on assize against him, and he confess the disseisin, and the disseisor relcaseth the damages, and hath judgment to recover, and entercth, and the husband dieth, his wife shall recover *her Dower against him who recovered ^ *]j7 in the assize by the common law; because that her husband L J had right, and he who recovered no right.(ower, immediately after the death of her husband; forasmuch as her husband mijirbt have pleaded unto the ac- tion of the writ of the demandant, and she cannot have an attaint. And if she shall stay imtil the heir hath defeated the verdict by attaint, then, perhaps, the heir will release, &c. or ])erhaps will not sue an attaint; and so the wife in despite of herself shall loose her Dower; which is not reasonable when she was once entitled to have Dower by the possession of her husband during the coverture; whicii possession had never been avoided, if not by the laches or pleading of the husband; ^ »i<5i t because *he might have pleaded unto tiie action of tlie writ ^ -' of the demandant, &c. lumen qiixrc; because that the judgment is given upon the verdict: within which verdict is found matter contrary and repugnant to the matter which ought to be pleaded to the action of the writ, &c. but if the entry of tlic demandant had been lawful, then the law is clear, and without question, that the wife shall not falsify; for then the demandant had been remitted by his entry."(i^') " But it is to know that a demandant in a writ of Dower shall not falsify a re- covery had against her husband by default, for laches of her husband in not pleading a plea which goeth merely in abatement of the writ, if not that it be in special cases. And therefore, to say that her husband might have pleaded misnomer, &c. or jointenancy, &c. are not causes to falsify a recovery.(a:) But if she shew matter proving that the demand- ant had not right, nor cause of action, if not jointly witii a stranger, the which stranger by his deed of release, which she sheweth forth, hath released all his right unto her husband (then tenant of the land.) before the action brought by the demandant, this is a good matter to falsify the recovery for one moiety of the land recovered. So shall it be of all such like cases. "(y) " And it is to know, if in a jM-ucipc brought against the husband he plead misnomer, which is found against him, by force of which the demandant doth recover, sucli recovery shall not oust the wife of her Dower, if the demandant had not right. And ^ *\^2 ^ if in *a precipe, &c. against the husband, the husband plead •- J jointenancy, &:c. which is found against him, by force of which the de- mandant doth recover, this recovery shall not oust the wife of her Dow- er, unless the demandant had right. "(r) It will appear from the last passage, that the wife may falsify re- coveries by action tried, as well as recoveries by reddition and default. This, however, must be understood with the (jualification, that the fidsi- fication is in another point than the point which was tried. Thus, (v) Perk. sec. 382 (cites E. 12 E. 4. 140.) (w) Perk. sec. 383. (.r) Perk. sec. 385. iy) Ibid. sec. 386. (i) Perk. sec. 381 (cites H. 5 E. 3. 2 a 2 70 PARK ON DOWER. where the husband pleads dilatory pleas, as in the cases put by Perkins, the wife may falsify, for this recovery does not disaffirm the possession of the husband, (a) It may be useful to remark, that in all such cases of falsification of recoveries suffered by husbands, by their widows, the widow shall falsify the recovery as to her title of Dower only, and no longer or fur- ther. (6) The implied special warranty upon an exchange af common law, affords another instance of the avoidance of the title of Dower by the seisin of the husband being defeated by title paramount. For if A. and B. exchange, and B. marries, and A. is evicted of the land taken in ex- change, he may recover in value against B. the land given in exchange, P *i f?q -| snd the wife of B. will thereby lose her Dower, for the re- ' -^ covery in value is paramount the title of Dower, *by rela- tion to the time of the exchange made, which was before the marriage,(c) The same law is stated as applicable to a partition between coparceners in gavelkind, where, if one is impleaded, and prays in aid of the other, and the demandant recovers, the tenant shall have ]j)'o rata of that which remains, unaffected by the Dower of the other coparcener's wife, because the title of the coparcener who had pro rata, shall have relation to the time of the death of the ancestor, (c?) But if a man recovers by way of recompense in value, against the husband, by a warranty ancestrel, the wife shall be endowed, because the recovery there is simply by force of the warranty, and not by reason of any elder title to the land, and so the land is bound only from the time of the judgment. (e) The warranty here is only a collateral charge, and not a specific lien upon the land, as in the case of an exchange or partition. The doctrine of the common law as to evictions by title paramount, applies also to persons re-entering by force of conditions, for, on the condition being called into operation, the estate defeated by it is con- sidered as void ah initio, and the entry of the feoffor has relation to the time of the feoffment made. r *i ^14 1 Therefore, if there be tenant in fee, or in tail, ^upon con- L -J dition, and the feoffor enters for breach of condition, or if there be a feoffment in fee upon condition, to be performed by the feoffor, who duly performs the condition, the wife of the feoffee is defeated of her Dower. (/) It should also be remarked, that although only a portion of the estate of the husband is defeated by force of the condition, as where the con- dition is annexed to the freehold only, yet as the operation -^f that con- dition deprives the estate of that quality in respect of which the wife is dowable, and converts it into an estate in remainder or reversion, while (a) See Bro. Dow. pi. 24, 26 ; Bro. Restore, &c. pi. 1. (6) Shep. T. 49. (c) 2 Roll. Vouch. (R. b.) pi. 4. Perk. sec. 309 (cites M. 4 E. 3. 52. T. 5 E. 3. 129.) (,/) Perk. sec. 310. (e) Fiizh. N. B. 150 (D.) (cites 3 E. 3. Dow. 139, 149.) Gilb. Uses, 399 ; Hughes Writs, 162. (/) 1 Roll. Abr. 474; Perk. sec. 311, 312, 317; Ley, 299, arg. But in this, as in many other cases already mentioned, the special matter must be pleaded, for upon the issue of ne iinques seisie que do-uier, the jury must find for the demandant. Dy. 41, a.; Noy. 66. TITLES OF DOWER HOW DEFEATED. 71 the former seisin of the freehold is disaffirmed hy the entry for breach of condition, the title of Dower is equally avoided as where the whole estate is defeated. In the cases already put, of lessee for life surrender- ing to the reversioner upon con) 8 Co. 67. (g) 2 Danv. Abr. 655. AS TO THE EFFECT OF CONDITIONAL LIMITATIONS. 79 divided upon tlic question. Tliu note of this case is in the following words. ''If A. seised in fee of land, covenants to stand seised thereof to the use of himself and his heirs, till C. his middle son takes a wife, and after to the use of C. and his heirs; and after A. dies, hy which it descends to li. the elder son of A., who has a wife, and dies, and after C. *takcs a wife, it seems the wife of H, the elder son shall not ^ ^^^^ i he endowed of the said estate of her hushand, because his •- " ^ estate is determined /n/ an express limitation, and therefore the estate of the wife heing derived out of it, this cannot continue longer than the original estate. P. 10. .la. B., between Fhivill and Ventrice, duhitatur upon a special verdict; for, upon argument, the court was divided. Scil. Crawley and Vernon, that she shall not l)e endowed, and Ilutton and Heath, e contra. Intratur Tr. S Car. Rot. 134.3." In Ileyns v. Villars(7') (1658,) this case was cited at the bar, hy the name of Rochester and Venters, and it was added, that it was a question to that day, whether tiie feme should have Dower. Thus the law appears to have stood in Summer v. Partridge, at the Rolls, July 25, 1740 (a case which has been altogether overlooked in practice,) in which it was decided, that a title of curtesy is defeated by a conditional limitation by way of devise. The short note of this case given hy Atkins is as follows. "A devise to A. and her heirs, and if she die before her husband, he to have 20/. a year for life, remainder to go to her children. The wife died before the husband. " It is a rule, said the court, in the case of a tenancy by the curtesy, as well as in a tenancy in Dower, that the estate shall come out of the inheritance, and not out of the freehold. A tenancy by the curtesy, and a tenancy in Dower, arc excrescences out of the inheritance, and a con- tinuation of the inheritance for a certain time in the husband [or wife,] which would otherwise have ceased. *" A tenancy by the curtesy must arise out of the inherit- j. wj^o 1 ance which must vest in the wife, and there must be a pos- ^ ^ sibility of its descending upon the children; now, they take hereby virtue of the remainder over, not by descent from the mother, and there is no dillerence between making an estate of inheritance to cease in the wife the moment she dies, and to arise in the children, and a jointenancy. " Neither a tenant in Dower or curtesy can entitle themselves to an estate in Dower, or curtesy, where the children [issue] who are left, cannot jiossibly take an inheritance, for, the moment of time the hus- band takes as tenant by the curtesy, the inheritance must descend upon the children, and therefore it is impossible, in the present case, to main- tain the father is tenant by the curtesy. ■*'(5) The reasoning of the court, so far as it is reported, although evincing a considerable command of the subject, fails to dispose of the point, whatever influence the judgment itself may have. That titles of Dow- er and curtesy are incidents of estates of inheritance alone is undenia- ble; but no inference arises from that as to the present question, which is simply whether the particular mode by which the estate of inheritance is defeated in the case of a conditional limitation, shall also put an end to the title of Dower, &.c. The case of jointenancy is distinguishable (r) 2 Sid. 66. (s) 2 Atk. 47. 80 PARK ON DOWER. on the old technical principle, that the survivorship disaffirms the seisin of the deceased co-tenant, and for purposes of title, negatives, ab initio, ^._. -, such seisin and all its fruits. The latter part of the *judg- L J ment assumes, that the possihility of the issue to inherit must continue to the time when the question arises by the death of the parent, a proposition for which it is not difficult to say the books furnish no authority. It remains to call the attention of the reader to the case of Buckworth V. Thirkell(/) (17S5), the leading case in modern practice on the point now under consideration. In that case, Joseph Sutton devised to trustees in fee, in trust to re- ceive the rents and profits, and apply them for the maintenance of Mary Barrs, the testator's grand-daughter, until she should arrive at the age of twenty-one years or be married; and from and after her attaining such age, or being married, she gave and devised the lands to the said Mary Barrs her heirs and assigns for ever. But, in case the said Mary Barrs should happen to die before she arrived at the age of twenty-one years, and without leaving issue of her body lawfully begotten, then, from and after the decease of the said Mary Barrs without issue as ' aforesaid, he gave and devised his said estates to his grandson, Walter Barrs, and to his assigns for his natural life, remainder over. Mary Barrs married Solomon Hansard, had a child, and afterwards died, un- der the age of twenty-one years, and without leaving any issue. On the trial of an action of replevin, at the Cambridge assizes, a special case was reserved for the opinion of the court upon the above facts, whether ^ -- -, Solomon Hansard was entitled to be tenant by the curtesy. L 175 J rpj^g ^^gg ^^g *twice argued at the bar by desire of the court and the distinction was relied upon between estates spent or expired, and estates defeated by way of condition. With regard to the case of estates tail, they observed, that " before the statute de Donis, estates tail w^ere conditional fees, but on the birth of a child, the condition was considered as performed, so as to become an absolute estate to three purposes: 1st, that the donee in tail could alien; 2dly, could forfeit; 3dly, it was descendible to the issue of a second marriage, and of course gave curtesy to the husband of a second marriage. The statute de Donis took away the power of alienation, and the curtesy of the second husband, but left the right of the husband of the first marriage to be tenant by the curtesy, as it stood before the statute [viz. notwithstand- ino- a subsequent failure of issue], that is, as being the husband of a woman whose estate on condition was become absolute by birth of a son. This, (they observed), accounted for husbands being tenants by curtesy of estates tail, but it explained the difference between estates tail, and estates defeasible on condition, such as the present, and proved how inapplicable the case of an estate tail was to the present estate as to the right of the husband to curtesy. (w) On the other side it was ar- gued, that this was a limitation conditional, and not merely a condition, for the defeazance has no relation to the time of creating the estate, as ^ -.in the case of a condition merely, the breach of which avoids t ^'^^ J all mesne *incumbrances.(i;) The judgment of the court is (n 1 Coll. Jur. 332 ; 3 Bos. and Pul. 652. n.; Bull. Co. Litt. 241; a. note, (u) 1 Coll. Jur. 334. {v) 3 Bos. and P. 653. n. AS TO THE EFFECT OP CONDITIONAL LIMITATIONS. 81 Stated to have been in the roUuvving words.— " Lord Mansfield. Ten- ancy by the curtesy existed before the statute de Bonis, and the defini- tion of it is, that the wife must be seised of an estate of inheritance, whicli by possibility her issue by the husband may inherit, and there must be issue born.' Estates at tbat lime were of two sorts, conditional, or al)suhite, and curtesy applied to both eciuaily. 1 cannot agree with the argument, that on performanoe of the condition by birth of a child the csllite became absolute; it was so by a subtlety in odium of perpe- tuity, and for the special purpose of alienation, but for no other. It otherwise reverted to the donor on failure of the issue, according to the original restriction. At common law, the only modification of estates was by condition. The Statute of Uses introduced a greater latitude of qualification, but there arose a great dread of letting in perpetuities, by means of the extensive operation of that statute; and, in the time ol Elizabeth and James, many cases were decided with a view to prevent that effect; with this view, it was allowed to bar contingent remainders before the person who was to take came into esse; others were held to he too remote in their creation. The cases proceeded in that view too fiir, and estates were to much loosened, and it became necessary to re- strain them again; and in the time of the troubles, eminent lawyers who were then chamber counsel, devised methods, which ^ ^^-^ 1 on their return to Westminster "Hall, they put in practice, •- such as interposing trustees to preserve contingent remainders. It is not of long date that the rules now in use have been established. I re- member the introduction of the rule which prescribes the time in which executory devises must take eficct to be a life or lives in being, and twenty-one years afterwards. " it is contended, that this is a conditional limitation. It is not so, but a contingent limitation; all the cases cited go upon tbe distinction of their being conditions, and not limitations. During the life oi the wife, she continued seised of a fee simple, to which her issue mi<^hl by possibility inherit. 1 am of opinion, that the defendant is entitled to be tenant by the curtesy. " The rest of the court assenting, judgment for the defendant."(e^;) The former portion of Lord INIansfield's observations appears to be little more than a skirmishing with the arguments which had been used at the bar, and to bear very slightly, if at all, ui)on the grounds of the decision. The latter passage, in which he is made to assign as a reason for his decision, that it was not a conditional limitation, is not easily re- concileable with the case stated. The original limitation to iSIary Barrs was expressly a limitation of the fee, and the subsequent estate being limited in derogation of that fee, and not upon tliedetermina- j- ^^_g -, lion of a ])rior particular estate, was necessarily *a condi- tional limitation. If it was not so, it is dillicull to conjecture what Lord Mansfield understood by a conditional limitation. It might jjcr- haps be thought, that his Lordship's observations, as aliove staled, mere- ly intended to take the distinction between a limitation, and a condi- tion, properly so called. But the language as staled in the report of the {w) 3 13os. ami P. 652. n. A case of Goodenough v. Goodcnough, in 177 5, in mentioned in the 3d vol. of Mr. Preston's Treatise on Abstracts, p. 37-.', as a similar decision upoa dower. This case docs not appear to be reported. ii U 2 S2 PARK ON DOWER. case in Collect. Jurid. is still more irreconcileable with any correct view of the law, in application to the facts of the case stated. It is as follows — "Now, it is contended, that this is a conditional limitation: it is no such thing. There is no condition in it; it is a contingent limita- tion. If it is a limitation, it does not defeat the right of the husband to be tenant by the curtesy, though the estate is spent. [x) It is certainly inconsistent with all ideas entertained in modern practice, to consider an estate orignally limited in fee, and abridged by a subsequent limita- tion over upon the happening of a particular event, in any such light as that implied by the observation that it was spent, upon the happening of that event. Indeed, were not the observations of Lord Mansfield found in a judgment upon a case which, as reported, was indisputably that of a conditional limitation; they would without doubt have been considered as establishing the general distinction, as to dower and cur- tesy, between estates expiring by their natural and regular limitation, and estates abridged or defeated by some collateral term annexed to P *]'-q -| their creation. So far as the language of *the judgment is ■- -■ to be relied on, it would seem to proceed upon the very distinction which Buckworth and Thirkell is daily cited to overturn. The decision itself has never been cordially acquiesced in. We are informed by Lord Alvanley, that " it occasioned some noise in the pro- fession at the time it was decided ;"(?/) and though, in delivering his judgment in Doe v. Hutton, his Lordship studiously avoided implicat- ing that decision with Buckworth v. Thirkell, which had been urged at the bar, it is easy to perceive, that his forbearance was owing to that re- luctance which the judges so laudably feel to disturb decided cases, where the questions before them can be disposed of on any other prin- ciples. The learned editor of the latter portion of Co. Litt. has devoted a part of one of his valuable notes to animadversions on this case. " By a MS. report of this case (he observes), the ground upon which the court appears to have formed their opinion on it is, an analogy they sup- posed it to bear to the cases of estates in fee simple conditional, and estates tail; in both of which Dower and curtesy continue after failure of the issues; and in both of which the wife's being seised of a fee, to which the issue might by possibility inherit, entitles the husband to curtesy. Some observations have been offered above(r) to show, that (x) 1 Coll. Jur. 336. {ij) 3 Bos. and P. fio3. (:) These observations were to the following effect. "As to estates in fee simple con- ditional at the common law, and estates tail under the statute de Donis, the wife was en- titled to her dower, and the husband to his curtesy, out of them, after the failure of the issues in tail. But, it may be observed that though it is now difficult to avoid considering estates in fee simple conditional, in any other light than as estates originally granted to the donee, and to the heirs general, or to some particular heirs of his body; and the estate of the donor, as that of a reversion expectant on the failure of those heirs ; yet, this restriction to particular heirs, and exclusion of others, is understood to be produced, not by any limita- tion of persons introduced into the grant, but by a condition supposed to be annexed to it, that if there were no such heirs, or being such, if they afterwards failed, and the donee did not alien the estate, it should be lawful for the donor and his heirs to enter. This entry, therefore, was not an entry upon the natural expiration of a previous estate, but for a con- dition broken ; in which case, as in all others where entry is made for breach of a condition, the right of the wife to her dower, and the husband to his curtesy, if the general rule were adhered to, would be defeated. But, for reasons now rather to be guessed than demonstrated, this case was made an exception from the general rule. So with respect to the right of the wife of tenant in tail to her dov^er, and the husband to his curtesy, after the failure of the AS TO THE EFFECT OF CONDITIONAL LIMITATIONS. 83 the continuation of *Dower and curtesy in the cases of es- _ »»cf) -i tatcs in fee .simple conditional, was an exception to a jjcne- L J ral rule (Dower and curtesy, in all other cases of conditions, being de- feated *l)y tlie entry for the condition broken), and that the _ «iqi -t same reasoning may be applied to the continuation of Dower L J and curtesy, out of an estate tail, after the failure of issue. It may there- fore seem singular that the court, on tiiis occasion, should prefer rea- soning by way of analogy from the only admitted exception to the general rule, to reasoning by analogy from the general rule itself. It is the more singular, ;is the general case of estates on conilition approached nearer to the case then under the consideration of the court, than the particular case of estates ui fee simple conditional, or estates tail, for the distinguishing feature of tlie devise wliich gave rise to the case before the court (as of all devises of that description), is, that after the whole fee is first devised, it is made defeasible by a subsequent clause. Now, neither an estate in fee simj)le conditional, nor an estate tail, has any such defeasible quality or incident annexed to it, but this fpiality forms the very essence of all other estates upon condition. With respect to the application of the maxim that where the issue may by possibility inherit, the husband shall have his curtesy (and so vice versd oi Dowgv); in every place in the books where that is mentioned, it is to introduce an enquiry whether the wife, being in the actual seisin of an estate, was in fact seised of an estate, the (jiiulity of which was such, that the issue of the husband might inherit it, but never with a view to show that the quantily of the estate was such that it might endure so long as to be in- heritable by the issue. On the contrary, when the wife's estate is evicted by title paramount, or by an entry *for the breach ^ *io<> t of a condition, in both cases the issue might have inherited; ^ "J but the husband would be entitled to his curtesy in neither after the eviction or entry. Another dilferencc between the case of an estate in fee simple made defeasible by a suljscquent executory limitation or de- vise, and that of an estate in fee simple conditional, or an estate tail, is, that an estate in fee simple, made defeasible by an executory limitation or devise, cannot, by any means whatever, be discharged by the first taker, or devisee, from the operation of the subsequent limitation or de- vise, but an estate in fee simple conditional may immediately after the birth of a child, and an estate tail immediately after marriage, be de- stroyed, and a fee simple absolutely acquired, by the husband and wife joining in a fine or common recovery. The case is the same with respect to the wife's right of Dower. Besitles, the quality we are speaking of is not sullicient of itself to entitle the husband to curtesy or issues in tail ; the statute de Donis introduced no new estate, but only preserved estatei limited as eonditional fees to the issues inherital)le under them, by preventing: the tenants of Bucli conditional fees from alienating or disposing of them, and as they preserved the estates, BO they preserved the incidents belonging to them, and among others, the right of the wife to her tlower, and the husband to his curtesy." lUitl. Co. I-itt. 241. d. note (4.) It may, however, be doubtful, whether the right of the donor to re-enter upon an eventual failure of issue, after the condition had been once performed by the birth of issue, did not arise rather from a determinable quality annexed to the estate (as a fee, as long as the donee should have heirs of his body,") than from the operation of an implied condition. And see Preston on Estates, chap, on ('ondilional Tees. If so, the case of dower of a gift to a man and the heirs of his body, at the common law, after failure of the issue, would seem to be an excep- tion to the rule as to collateral limitations, rather than as to conditions. 84 PARK ON DOWER. the wife to Dower; it is only one of many incidents which the estate ouo;ht to have to give that title."(«) To these observations may be added, that Mr. Sugden, in his valuable Treatise on Powers,(6) has in- timated his opinion that the case of Buckworth v. Thirkell was not rightly decided. Such appears to have been formerly the opinion of another conveyancer of great eminence. In the later writings, however, of that gentlemen, there appears to be an inclination to adopt the law of that case, and in one passage it is remarked, that " the cases of Dower of estates determined by executory devise and springing use, owe their r *ieo -] existence to the circumstance *that these limitations are not *- -^ governed by common law principles; and when the limita- tion over was allowed to be valid against the former donee, it was on the terms that the limitation over should not impeach the title of Dower of the wife of that donee."(c) The writer has not hitherto been so fortu- nate as to meet with the passages in the books from which this proposi- tion is collected. The case of Flavill v. Ventrice, already noticed, proves that at that period two of the judges entertained a different opinion, and upon what the doubt of the dissentient part of the court turned does not appear. The language of the court, too, in the earlier case of Sammes v. Payne, assigning as a reason that the husband sliould be tenant by the curtesy, that the estate tail of the wife was ^^ spent and determined by the dying without issue, and doth not cease, or is cut off by an}'' limitation," if it mean any thing, must imply, that in the latter case, the court thought it might have been otherwise. The term limitation must here necessarily signify some qualification annexed to the creation of the estate, operating in derogation or abridgment of the time comprised in that estate, and it is peculiarly the property of a con- ditional limitation to cut ojf\ or produce a cesser of, the estate upon which it operates. It has been usual to represent the cases of Dower of an expired estate tail, and of a fee simple conditional at common law, after failure of the issues, as exceptions to the rule cessante statu primilivo, cessat atqiie r *1S4 1 '^^^'^'^o.tivus, and to give some colour to the ^decision in L -' Buckworth v. Thirkell, it has been frequently said, that that case is no more than an additional instance of exception. This is a pro- tection which the writer doubts whether it is correctly entitled to. The language of the resolutions in Paine's case seems to put the point upon another ground, and to show, that the former instances are erroneously alleged as exceptions to the rule cessante statu, &c. "At the common law (said the court), if lands had been given to a woman, and the heirs of her body, and she had taken a husband, and had issue, and the issue died, and the wife also without issue, whereby the inheritance of the land did revert to the donor, in that case the estate 0^ the wife is deter- mined, and yet the husband shall be tenant by the curtesy, for that is tacite implied in the gift."(i/) So, "if tenant in tail takes a husband, and hath issue and dies, now the husband is tenant by the curtesy; and although afterwards the issue dies without issue, so that the estate tail is determined, yet his estate sliall continue, for it is not derived merely out of the estate of the wife, but is created by the law, by privilege and (a) Bull. Co. Liu. 241 a. n. (4.) (6) P. .333. n. (II.) (c) 3 Prest. on Abst. 373. \il) 8 Co. 68. AS TO THE EFFECT OF POWERS OF APPOINTMENT. 85 benefit of law lacilh annexed to the gift."(e) These passages seem to prove, that though for all other purposes^ the estate tail, &.c. is deter- mined, yet for the purposes of a title to he tenant by the curtesy, or tenant in Dower, tlie estate still continues in intendment of law, the dowress, &c. although not expressly included by mivic,{in the heirs are, in the language of the gift, being considered as tacitly included in that gift, and her *estate as a portion of tlie time comprehended ^ •lor t in the terms of the limitation, or, as Coke exj)resses it in ^ "^ -■ another place, "yi/of/rtm?;ioc/f>, a continuance of part of the estate tail."(y) So long then, as any portion of the original estate is subsisting, the rule cessunte statu priniitivo, ccssat derivativus, cannot apply, and the cases of Dower and Curtesy would seem to be improperly propounded as exceptions to it. This point also, it is important to remark, is not, aa has been usually represented, peculiar to estates tail, and estates in fee conditional, but, as has been already shown, ecjually apjdies to estates in fee simple, determining by escheat for defiult of heirs. In all these cases, then, the estate of the dowress may continue, not upon any special ex- emption from the api)lication of the rule cessante statu, &.c.; but, because, although there are no heirs, issue, &c. the limitation has not yet finally operated, nor can operate till her death, to determine the quantum of enjoyment originally designated. So long as there are heirs, the estate continues iti toto; so long as there is a dowress, the estate has a partial continuation. On the other hand, a conditional limitation takes eiVect, without any respect to the amount of enjoyment comprehended in the original limitation of the estate to which it is annexed. Although there are heirs answerable to the given description, the existence of those heirs no longer ensures the continuance of the estate; and it may be made a question why that portion of the timo of enjoyment which is ta- citly implied by the original ^limitation, is in a better situa- j. »,cp -i lion than that other portion of it which is expressly desig- ^ ^ natcd by the terms of the grant. These observations, whatever their value, will be received by the student with caution. Until the law of liuckworth v. Thirkell (if it be a decision for the point understood), shall be reconsidered before a com- petent jurisdiction, it cannot be considered in jjractice but that a title of Dower does exist under the given circumstances, and the remarks of the writer, although not standing alone, can have no other influence than as they may tend to show that there is a possibility that tliat decision may not be followed. The point here discussed is of the more importance to be correctly understood, since it goes to the extent of governing, in a great measure, a question of frequent discussion in practice, which has never yet been decided, and u|)on which much diflerence of opinion exists. This (pies- tion arises upon a form of limitation occasionally met with in modern deeds, and in most cases adopteil for the express purpose of defeating a title of Dower; namely, a limitation to si'ch uses as A. shall appoint, and in default of appointment, to the use of himself in fee. This mode of limitation was adopted under the impression, that as the appointee came in as if named in the deed creating the power, he was in paramount the risht of Dower in the wife, and consequently held (e) 8 Co. 71. (/) 7 Co. 73. 86 PABK ON DOWER. the estate discharged of the Dower. The following remarks, in Mr. Sugden's treatise on Powers, will open the law on this point. '•' As to P #-107 -\ ^powers with estates limited in default of their being exer- '■ -' cised; immediately upon the execution of such a power, the estates limited in default of appointment cease, and are defeated, and the estates limited under the power take effect from the time of the execu- tion of the power, in the same manner as if they had been contained in the deed creating the power. The estates however, limited in default of appointment, arc, as we have seen, vested estates. Therefore, where an estate is limited to such uses as a man shall appoint, and in default of appointment to him in fee, as he is seised in fee until appointment, his' wife becomes dowable; and it has been doubted, whether a subsequent appointment will drive out the wife's right of Dower.(^) It is to pre- vent this question from arising, that in the limitations to bar Dower an interposed estate is given in default of appointment to a trustee. But we must now inquire whether the doubt is founded. There are few points upon which a greater difference of opinion has prevailed in the profession. It was formerly much debated whether the fee was vested in the party, but that question is now at rest. Some opinions have taken a distinction between a limitation in default of and inifil appointment, and a limitation merely in default of appointment; in which last case, it has been contended, the fee does not vest; this doctrine, however, cannot be supported at the present day. It must be taken as a settled principle, that the fee is vested in the husband, and the right of Dower P *ioo -I has attached. And the opinion *of most of the eminent men '- -^ of the times, and amongst them of the late Mr. Fearne, was, that the right of Dower was defeated with the estate on which it attached by the execution of the power. The opinions of the judges stand thus. In Cave v. Holford, Mr. Justice Heath expressed an opmion, that the power would enable the donee to bar the claim of Dower. (A; In Cox V. Chamberlain, (e) Lord Alvanley spoke rather dubiously of the question. He said, that by the execution of the power, the estate in fee might be superseded, " though perhaps not to bar Dower." Lord Eldon appears to have thought with Mr. Justice Heath that the appointment drove out all intermediate estates, and the dowress could not sustain her claim of Dower upon the new estate in the appointee of the power.(A;) However, it has never been necessary to decide this point;(/) and in the last case, Lord Eldon said, that notwithstanding his own opinion, if the point had arisen, he would have permitted the party to take the opinion of a court of law upon it. " Upon principle, it is difficult to frame a reason in favour of the right of Dower; for, although the estates limited by the execution of the power take effect only from the time of the execution of the power, yet r *18q 1 ^'^® estates limited in default of appointment *cease the in- •- -I stant before the new uses arise.(m) Perhaps, the doubt may iff) See n. (2.); Co Litt. 216. a. (A) "See 3 Yes. J. 657." 0) 4 Ves. 637. {k) " See Maundrell v. Maundrell, 10 Ves. 267." (/) " The case of Wilde v. Fort, 4 Taunt. 334, may be treated as an authority in favour of the right of dower, but ic is not stated whether Halliday executed his power, or conveyed his estate. If the latter, of course the point did not arise." (m) " The doubt could scarcely be supported on Buckworth v. Thirkell, Coll. Jurid. 332; 3 Bos. and Pull. 652. n. even if that case itself had been rightly decided." AS TO THE EFFECT OP POWERS OK APPOINTMENT. 87 have been raised on this ground, that as a conveyance of the fee would in fact, destroy the power, a |nirlial cliarge or right altacliing on it even by operation of huv must have the effect of defeating the operation of the powev pro ianio. And this, it is aj)prehended, is the principle: for it has never been contended, tliat where a general power of appointment is given to A., with a Hniitation in defaiiM, of appointment to li, in ft-e, the right of Dower of li'.s wife wouUl noi be defeated by the execution of the power. "(/a) It appears to the writer that the decision in JJuckwortli v. Thirkell (if that decision shoukl be followed,) is more relevant to the question now under consideration, than seems to be admitted by Mr. Sugden. It is admitted, that estates created under powers of appointnicnt take effect, in point of title, as if inserted in the deed creating the power, and therefore v/hen, in the case in (piestion, the power has been exercised, it comes to the same thing as if the fee had been originally limited to the donee of the power, with a limitation over by way of springing use to the i)crson taking under the exercise of the power. If the law is once admitted to be that the title of Dower continues notwithstanding the es- tate to which it was annexed is defeated by springing use, it is useless to remark that the execution of the power " drives out all intermediate estates, *and is prior and paramount to them;"(o) for tiiis , » on i operation may be fully admitted, and yet the title of Dower L 1-'-' J supported; and without reference to the principle suggested by Mr. Sugden, in the concluding passage of his observations. Lord Eldon's remarks upon the point, in Maundrell v. Maundrell, can hardly be con- sidered as conclusive, until it is understood whether his Lordshij) intend- ed to express an opinion hostile to the law of Buckworth v. 'I'hirkell, or whether the law of that case, in its application to estates defeated by the execution of a power, escaped his consideration. No case has occurred, to the writer's knowledge, in which this point has been again considered. At the present time, however, the j)revail- ing and almost universal practice is not only to make the vendor execute his power, i)ut to require him and his wife to levy a fine at the vendor's expense; and till this case can be distinguished on principle from the case of a fee defeated by executory devise or shifting use, or the law of Buckworth v. Thirkell shall be solemnly overruled, the practice is cer- tainly right. *CH AFTER I\. [ -lUl ] Of the intans hy ivh'ich a title of dower wjr/// be extinguished, DISCIIAUGED, or SUSPENDED, by tlic uct of t lic ])(irty. It is an imi)ortant quality in lilies of Dower, and, indeed the the cir- cumstance which makes them matter of so anxious consideration in modern conveyancing, that after they have once attached, they cannot be extinguished or suspended by any act of the iiusband alone, in the nature of alienation or charge. The law, in its anxiety for theprcserva- (n) Sugd. Pow. 331, et seq. (o) 10 Vcs. 26G. 88 PARK ON DOWER. tion of this favourite provision, put it absolutely out of the power of the husband to deprive his wife of it without her concurrence solemnly manifested by matter of record. (a) These circumstances of preservative caution, warring against the wants and conveniences, of mankind, in a country where property is incessantly changing hands, and where the ingenuity of lawyers seldom fails to keep pace with the requisitions of the times, have eventually P *i QQ -1 issued in the virtual abolition, in *the great majority of cases, L '* -• of the very provision which they were intended to pro- tect.(6) It was for a long time doubted by great lawyers, whether, before the death of the husband, there were any means by which the wife's inchoate title of Dower might be voluntarily extinguished. It was thought that as she had no right of action until the death of the husband, she had nothing to part with till then, and could not be bound even by fine.(c) But it is now clearly established, that the title of Dower, although inchoate till the death of the husband, yet being an interest attached on the lands from the instant of the concurrence of marriage and seisin, is extinguishable by those modes by which a married woman may relin- quish any other legal interest, and even so long since as the time of Lord Coke, we are told that " no question was made but that if the husband and wife levy a fine, the wife is barred of her Dower, for the intermar- riage and seisin are the fundamental causes of Dower, and the death of the husband but as an execution thereof."(f/) If an action was brought against a husband and wife for the recovery of lands wherein the wife had any estate, and judgment was given against them, the wife was barred ;(e) and at an early period it seems to have been admitted, that a recovery against the husband and wife of the hus- band's lands, should bar the wife's title of Dovver.(y) And a fine being an accommodation of a suit, and a concord being deemed to have the same force and effect as a judgment in a real action, it follows, that a ^ -- married * woman must have been as effectually bound by a L -' fine, as by a judgment in an adversary suit. (^) In Eare v. Snow,(A) a husband who was tenant in tail, suffered a re- covery, in which he, and his wife, who had nothing in the land, were named as joint tenants, and the wife appeared as joint tenant, and vouched, and she surviving her husband, it was contended that she should have the recovery in value, by conclusion, and consequently that the issue were not barred. But the court held, that the recovery in value should not go to the wife, for that she lost nothing, and that the recovery in value shall go to him who hath lost the tenancy, and shall be of the like estate which he lost, and that they <' ought to adjudge that she who had no estate in the land recovered shall have no estate in the land recovered in value, but that she was named in the praecipe only to (a) There are two instances in Madox's Formiilare Anglicanum (No. 14S. 319,) of feoffments which are expressed to be made with the assent of the feoffor's wife. And Mr. Reeves (Hist. Eng. Law, vol. L p. 91.), supposes, that the wife's claim of dower might in those day^be barred by such assent, because feoffments were then made publicly in court. See BuU. Co. Litt. 330. b. n. (1.) (i) See chap. V. (c) See 10 Co. 49. Id) 10 Co. 49.6. (e) 2 Inst. 342. (/) Plow. 514; Shep. T. 46. {g) See Hargr. Co. Litt. 121. a. n. (1.) (/«) Plow. 504. TITLES OP DOWER HOW DISCHARGED. 89 be barred of her Dower, to whicli purpose women arc commonly named in common recoveries had against their husbands, and the common usage in this case is to be regarded, for in such cases, it has always been the intent of the parties before this time, that the wife siiall be barred of her Dower, and the estate tail should be barred also." In this case, the praecipe was brought against the husband and wife jointly; and they did not, as in moilern practice, come in as vouchees. The i)rincij)le upon which a woman was considered as barred of her Dower by such a recovery, would seem to be that there- ^ , , covery had disaflirmed her husband's title, *an(l she by being '- ^ a party, was estopped to lalsify the recovery.(/) At this day, the practice is almost invariably for the husband and wife to come in as vouchees, and it is universally admitted, that the voucher of the wife will extinguish her title of Dower. The statute de modo levandi Jines[k) has prescribed, that where mar- ried women are parties to lines, they sliall first be examined by the jus- tices, to ascertain their consent; and this private examination is used as well where the woman joins in a fme to extinguish her Dower, as where it is levied as a conveyance of her estate. And although fines only are mentioned in the statute, yet it was the usage in Lord Coke's time, when a common recovery was suffered by iiusband and wife, to examine the wife, and to grant a dcdinius polestalem, to take her acknowledg- ment upon examination, as in case of a fine.(/) Pigott, in his Treatise on Recoveries,(7;i) remarks, that this practice is wholly disused in com- mon recoveries; but his editor, Serjeant Wilson, observes that this is a mistake, and that the Serjeants at the bar now examine feme coverts when they come to suffer recoveries. In modern practice, a fine is uniformly used for the purpose of barr- ing the wife's title of Dower, except in cases where a recovery is neces- sary to discharge the title from an existing estate tail. In ^ ^^■\^\r, -\ cases of vendor and purchaser, the fme must of 'course be at ■- J the expense of the vendor, as necessary to discharge his title from the existing incumbrance.(yi) Proclamations are not necessary upon a fine levied for the purpose of extinguishing a title of Dower only, but the modern practice is to pro- claim every tine. By the custom of particular places, a married woman may Ijc barreil of her Dower by a customary alienation, without fine or recovery. Tjuis, in London, a deed of bargain ami sale by husl)and ami wife, acknowledged before the Lord Mayor, or the Recorder and oiu- Alder- man, and upon which the wife is separately examined, and proclaimed and enrolled in the Husting's Court, shall bind as a fine at the common law.(o) An(l a recovery by writ of right in the Husting's Court of London, is as effectual to bind the right of a feme covert by the custom of London, as a fine at common law.(/^) (0 See Pig. on Rccov. C7. {k) IS E. 1; 2 Inst. b\b. [I) 10 Co. 4:3. (»i) r. OCi ; niul so nUo is 5 Mod. 210. (?i) See an opinion of Mr. Booth's on this point, in 1 Williams' Prcc. 72. (0) Hughes' Writs (cites 29 H. 8 M. 5 E. 47 p. 1. SuiU Enrolled, 10, li, 15); Bohuti Priv. Lond. Emerson, 26. (p) Dy. 290. a. Vol. IX.— 2 I 90 PARK ON DOWER. It is said that by the custom of Winchester, a deed enrolled, is equiva- lent to a fine at the common hw.{q) In treating a fine as an absolute bar to a title of Dower, these obser- ^ vations assume that the fine levied by the husband and wife L J is of such a nature *as to import a grant of the fee,or at least of an estate of freehold. Where, however, the fine only creates a par- ticular interest by way of charge, or term for years, it seems that the operation of the fine bars the title of Dower only to the extent, and as against the owner, of the particular interest created; and the old title of Dower still subsists upon the fee, subject to the charge, &c. As if the husband and wife grant a rent-charge, or make a lease, by fine, the wife will recover her Dower of the land, and hold it charged with the rent, or the term,(?') And when a fine is levied by husband and wife, which imports a grant of the fee, and no declaration of the uses of that fine is made, as the use results to the conuzor, the wife necessarily becomes again dowa- ble of that use, and it may be made a question whether this new title of Dower will be defeated by a subsequent declaration of the use. So, if no declaration of the use is made which puts the freehold out of the husband, as where the fine is levied in confirmation of a demise for years, the wife becomes dowable of the reversion which the husband takes by the resulting or declared use. This sometimes occurs in practice where a fine sur conusance de droit come ceo, &c. has been levied, on a mortgage for years made by the husband, and the use is declared in confirmation of the mortgage, without going further; or subject thereto, to the husband in fee. If the intention, therefore, is that the fine should operate generally to ex- ,^.„„ -| tinguish the wife's title of Dower, and not merely to con- L ' -■ elude *her as against the mortgagee, to avoid all doubt, it is prudent that the fine should be declared to enure, subject to the mort- gage, to the usual uses to prevent Dower. Where this is omitted, upon a subsequent sale by the husband it is sometimes contended that another fine is necessary to extinguish the wife's title of Dower on the rever- sion, unless the purchaser would be satisfied with taking an assignment of the mortgage term. Where, however, the fine has not been already declared to enure to the use of the husband in fee, it seems clear that a declaration of the use of the former fine (subject to the term), to the purchaser in fee, would defeat the title of Dower. It does not indeed appear ever to have been expressly determined whether a declaration of uses, subsequent to the levying of a fine, shall conclude the wife of her title of Dower upon the fee which resulted to the husband in the mean time between the levying of the fine, and the declaration of uses. The old doctrine was that the subsequent declara- tion of uses (" nothing appearing to the contrary"), took effect, not as creating the uses from that time, but as evidence of prior parol uses, or in other words, of the agreement of the parties that the fine, at the time it was levied, should enure to those uses;(6) and this affirmation being by deed indented, was held to conclude the heir of the conuzor, though (f/) Hughes' Writs, 119 (cites 5 H. 4. 14. p. 1.) (r) Per cur. in Lampet's case, 10 Co. 49. 6. (s) Downman's case, 9 Co. 7. b. TITLES OF DOWER HOW DISCHARGED. 91 no party to the deed, by estoppel, and it may he supposed that it would have been held ef|ua]|y conclusive on the wife.(/) *This was without doubt tlie correct way ol stating the ^ •los 1 law previous to the statute of Frauds and Perjuries, but that •- ^ statute has introduced a difliculty wliich the statute of 4 Ann. c. IG, has not altogether removed, in application to the title of Dower. The statute of Frauds and Perjuries having done away with parol declarations of uses, it became doubtful how eflc-ct could be given to subsecpient declarations of uses of lines, &:c. consistently with the doc- trine upon whicli they had been originally established. The statute of 4 Ann. c. 16, " for the amendment of the law," adverting to the exist- ence of those doubts, enacted, (u) " that all declarations, or creations of uses, trusts, or confidences, of any fines or common recoveries of any lands, tenements, or hereditaments, manifested and proved, or which hereafter shall be manifested and proved, by any deed already made, or hereafter to be made, by the party who is by law enabled to declare such uses or trusts, after levying or sullering of any such fines or reco- veries, are and shall be as good and eflcclual in the law, as if the said last mentioned act had not been made." The object of this clause was. it is sufliciently evident, to place subse- quent declarations of uses of fines and recoveries upon the same footing, as to validity, as if the statute of Frauds and Perjuries had not existed; but it does not necessarily follow that to eflect that, it virtually repealed the statute of Frauds and Perjuries, as to parol declarations of uses, and re-established the validity of those uses, provided they were ^ ^^^^ -. evidenced by some subsequent declaration by deed. 'On •- the contrary, the impression in modern practice undoubtedly is, that the use does, in point of fact, actually result to the conuzor in the mean time, and that the subsequent declaration of uses does not take effect as evidence of a prior parol agreement, but as creating the uses iii point of e5/a/e, though not in point of title, from the time of executing the de- claration. It is consequently considered, that intermediate charges and conveyances take effect out of the ownersliip acquired by lorce of the resulting use; while the old judges treated them rather in the light of adverse evidence, setting the matter at large, and sending the persons claiming under the subsequent declaration, to furnish other evidence of the agreement of the parties at the time of the fine levied. (z;) In this respect, therefore, the law appears to be materially altered; and if the use of the fee results to the conuzor, it may perhaps be asked how the title of Dower which conseciuently attaches, can be extinguished without another fine, admitting that the subsequent declaration of uses does not suppose a previous parol agreement to the same uses. Bui whenever there shall be occasion to discuss this doctrine, although there can be little doubt that the courts will decline construing the statute of 4 Ann. as a partial repeal of the statute of Frauds and Perjuries, yet, in order to support subsequent declarations of uses upon any recognised principle, {t) Sec Co. Litt. 352. a. b. tliat tenant in clower shall Ik- boiiml by estoppel. So also she shall have tlie advantage of an ealoppel between her baron anil the tenant. Roll. Abr. Estoppel (L.) pi. 1. (u) Sect. 15. (v) See the argument of the court in Downman's case, ut supra ; and see 12 .\IoJ. ICI, in Jones v. Morlcy. 92 PARK ON DOWER. they will find it expedient to resort to the technical doctrine of relation, *200 1 ^"^ decide, that though the party claiming under the de- L ^^^ J claration was not in in point of estate by force *of any parol use arising by agreement at the time of levying the fine, yet in point of title, he is in by relation to the time of the fine levied, and so as to avoid all mesne titles accruing by act of law. In any other point of view, a subsequent declaration of uses Avould require a consi- deration either of money or blood to support it. In leading the uses of a fine which is intended to have the operation of extinguishing the Dower of the conuzor's wife, it is not necessary, though in practice always usual, that the wife should concur. The point appears to have been raised in Haverington's case,(w;) and the re- solution upon it was in these words: "That the wife who had title of Dower in the land is concluded of her right of Dower by the declara- tion of the uses of the fine by the husband only, which fine is afterwards levied by them jointly ; because no contradiction of the woman appears that she doth not agree to the uses which the husband solely by his deed of indenture had declared." Perhaps it was not necessary to resort to this reasoning to decide the point. The case of a woman joining m a fine for the mere purpose of extinguishing her title of Dower, stands quite upon a different footing from that of a woman joining with her husband in levying a fine of her own lands, from which the reasoning was borrowed, (a:) In the latter instance, her agreement, either express or implied, is of the essence of the creation of the uses, which take ef- fect out of her ownership; in the former case, the wife has nothing to r ^o(\\ ^ *^° '^'^^^^ the creation of the uses — her instrumentality *^is ■- '^ ^ confined to the simple act of extinguishing her incipient title of Dower; and her consent to do that is evidenced, not by her join- ing in the declaration of the uses, but by her being a party to the fine itself, after personal examination by the judge. It was no otherwise necessary that there should be any declaration of uses at all, for the pur- pose of completing the effect of the fine to extinguish her title of Dow- er, than that in the absence of such declaration, the husband would take the fee again by resulting use, and consequently revive her title of Dower. The agreement of the husband alone that the fine should en- ure to the use of some other person, was fully sufficient to intercept such resulting use, without any concurrence, express or implied, on the part of the wife. The author has been the more free in his remarks on the resolution in Haverington's case, because the doctrine, as set down by the reporter, appears to go towards rendering nugatory all the anx- iety bestowed by the common law in superintending the circumstances of consent in the case of a woman under coverture; and to transfer the operative force of that consent from the personal examination in court, to the simple act of executing the deed declaring the uses. Where a contract for sale has been entered into by the owner of an estate, of which his wife is dowable, and a fine is to be levied to extin- guish the title of Dower, if the husband dies before the fine is completed, the purchaser cannot car^-y the contract into effect as against the Avife, even though she may have joined in acknowledging the fine. This (w) Ow. 6. (x) See Beckwith's case, 2 Co. 57. a. TITLES OF DOWER HOW DISCHARGED. 93 *vyas determined at a very early period. A man seised \n ^ ^ tail, bargained and sold to another in fee, and covenanted L '^^~ J that he and his wife would levy a fine for better assuranoo; and it was agreed that 30/. part of tiic consideration money, should he paid to the wife upon the conusance of tiic fine by the husband and wife; and after, the husband and wife acknowledged a fine before a judge on the circuit in the vacation, and the 30/. was paid to the wife. The husband died before the term, and thereupon the wife stopped the passing of the fine, and afterwards brought a writ of Dower. The purchaser came into equity to be relieved, but it was resolved that he should have no remedy in equity against the Dower, because it was against a maxim in law that a feme covert should be bound without a fine, and the bill was dismissed accordingly as to the Dower.(,y) Uniil of late years, however, it has been almost uniformly held, that if a husband contracts to sell an estate which is subject to a title of Dower in his wife, or an estate of which he is seised in her right, speci- fic performance would be decreed against him, although the wife should refuse to join in levying a fine. In Tothill's Reports, there are several decrees of this nature;(r) and in Hall v. IIar(ly(«) (1735,) Sir Joseph Jekyll said, that "there had been a hundred precedents, where, if the husband for a *valuableconsidei"ation covenants that the wife ^ *g^„ shall join with him in a fine, the court has decreed the bus- L ~ J band to do it, for that he has undertaken it, and must lie by it if he does not perform it." That case was a bill for specific performance of an award that the party should convey a piece of land (respecting which there were disputes,) and procure his wife to join in a fine. It does not appear that the wife had any other interest than her Dower. In many other cases the estate itself was^,the wife's, which certainly made it strong- er, but the same decree was made.(/>) — In the case of Oulread v. Round, (c) however. Lord Chancellor Cowper observed, that though there may be precedents in some cases where a husband has been de- creed to procure his wife to levy a fine, yet it ought to be sparingly- done; and the rather as it puts the husband upon compelling the wife lo do what the law takes to be done voluntarily and without restraint. In that case the wife had executed the release, and joined in the covenant to levy a fine, and part of the consideration was paid by the plaintilf to the husband; who had taken her before a judge, and had done all he could to procure her to join, but could not; and she said she had exe- cuted the deed by comj)ulsion; and the husband ofliering to refund the purchase money with costs, the court decreed accordingly. In the case of Emery V. Wase,(f/) Lord Alvanlcy, and afterwards *Lord _ ^,^04 t Eldon upon appeal, availed themselves of some dissatisfac- L J tory circumstances attending the contract, to refuse decreeing specific performance against a husband of his wife's lands, although it was not (y) Hody V. Lunn, 1 Soli. Abr. 375; aiul sec 1 Ei]. Ab. CC. pi. 2. side note, correcting the dictum in Baker v. Child, 2 Vcrn. 61; see also 1 Atk. 617. (z) Haddon's case, Tolh. 205; Grifiin v. Taylor, lb. 106 ; Barty v. HerendcD, lb. 156 ; Sands v. Tomlinson, lb. 157. (a) 3 P. \V. 187. (6) See Barrington v. Horn, 5 Vin. Abr. 517, pi. .'35. 2 Eq. Ab. 17. Berry v. NVadc Finch. 180. Morris v. Stephenson. 7 Ves- 471. VN'iihers v. Pinchard, Ii>. I'.S, cilcd. (c) 4 Vin. Abr. 203, pi. 4. (f:HAj».GED. 90 exception of it, and afterwards the sued for her Oower in .- mo^r the Chancery, *she was held barred of her Dower (hirinu; ^ *15 J the nonage, lor her Dower and such a j)atent are incoiisiHi-'i'.t/(/v) But " if a man seised in fee of White-acre, lease tlic saaiu ycrc unto a. sole woman for forty years, and tlie lessor intermarrieth with the lessee, and the husband sufl'er the term to continue as it was without any uli'ena- tion, or other thing done therewith, and dieth within the term, it Is ^aid that in this case the wife may have her Dower presently, notwithstand- ing that the term does continue; because tliat at the time of the lease she was not entitled to Dower: and notwithstamling that the term doih continue, it shall not cast her of her Dower, because if it [viz. her taking her Dower] shall be prejudicial to any person, it shall be unto the pre- judice of the wife herself, "(c) It is also said that if the husband is attainted, and dies, and the feme takes a lease for years, of the king's grant, of his lands, and afterwards by act of parliament, or by reversal of judgment (the heir of the hus- band being in the king's ward, for that the tenements were intailed) now she shall have her Dower, because it was before her title ^ »oi r of Dower ^commenced, or rather during its suspension, that L " J she accepted the lease. (^/) As the husband cannot prejudice his wife as to her freehold, a waiver of Dower by a second husband will not bind the wife after his death. So if the heir, during the coverture with the second husband, makes a lease for years to the wife of the land of which she is dowable, although the husband enters under the lease, she may after his death waive the lease, and claim her Dower.(e) Neither can he prejuiiice her by ac- cepting less than a third part for her Dower, for after his death she may waive the portion which he accepted, and have her full third part.(y) »CHAPTERX. [ *217 ] Of the circumstances under which a title of dower will be Ton- VEiTED bt/ reason q/* crime, or excluded bi/ reason 0/ personal disqualification. The forfeiture of a title of Dower by reason of crime may accrue either by the crime of the wife herself, or, as most commonly, by the crime of the husliand of whose lands she is dowable. By the ancient law, the wife of a person attainted of treason or felony (/y) .Tcnk. Cent. 2. ca. 38. F. N. B. 150. Hughes' Writs (cites .M. 2 H. 4. 7.) Bro. Dow. pi. 27, (cites 1 1 H. 4.) (c) Perk. sec. 351, (cites H. 6 H. 4. 7.) F. N. B. 149 (E.) n. But see Ow, 154. Arp. in Goodridgo v. Warlmrton, where it is .said that if feme boIo Icsccp marries the IcsRor, and the lessor dies within the term, and the wife enters, this siiail not conclude her dowrr n/ter the lease is expired; and cites 11 H. 4. The fact of entry by iho wife is, however, not noticed in the case as put by Perkins. ((/) F. N. B. 149. (E,) note. {e) Jcnk. Cent. 2. Ca. 38. (/) 4 H. 6. 32. E. 1. Fitz. Dow. 121. Jenk. Cent. 2. Ca. 56. 100 ., ;,PARK ON DOWER. .cpiild not be endoWfiil,'fa) to the intent, says Staunforde,(6) that if the ; loye of a man's •<;)wn life cannot restrain him from such atrocious acts, the love of„lijs.\yl'fe and children may; though Britton(c) gives it ano- 'iher turny' Vi'2;.>t'hat it is presumed the wife was privy to her husband's crime. '.■. , . ' By/Aie 'mitigating statute of 1 Ed. VI. c. 12, it was enacted "That aib°;it''any person or persons of what estate, condition, or degree he or they'be, shall hereafter fortune to be attainted, convicted, or outlawed of any treason, petit treason, misprision of treason, murder, or felony what- soever, yet that notwithstanding, every woman that is or shall fortune r *9i« 1 *to be wife of the person so attainted, convicted, or outlawed, L J shall be endowable and enabled to demand, have, and enjoy her Dower in like manner and form as though her husband had not been attainted, convicted, or outlawed; any statute, law, usage, or custom to the contrary in any wise notwithstanding."(c/) But by the 5 and 6 of the same king, cap. 11, the forfeiture of Dower was partially revived, it being enacted "That the wife or wives whose husband or husbands here- after shall be attainted of treasons specified in this act, or of any other treasons whatsoever they be, shall in no wise be received to ask, chal- lenge, demand, or have Dower of any the lands, tenements, or heredita- ments of any the person or persons to be attainted of treason as is afore- said, during the said attainder in his force. "(e) The words of this act being general, exclude the wife as well in cases of petit, as of high treason. (/") But in the case of certain modern trea- sons relating to the coins, the forfeiture of Dower is expressly saved. (^) And a feme covert, 7ion compos, by killing her husband, would not for- feit her Dower, since she is incapable of committing petit treason or any other crime.(A) r *oi q 1 Upon the ground, probably, that the forfeiture of *Dower L " J on attainder was by reason of the disinherison of the issue,(e) it is said in Litt. sec. 55, to have been the opinion of Vavisor, that if a man seised of land committed felony, and after aliened, and after was attainted, the wife should have a g jod action of Dower against the feoflfee, although not if it escheated to the king, or to the lord. If this point is law, it might be expected to be applicable to treason at this day, but Lord Coke denies this section to be Littleton's, and adds that " it is clear that the wife at the common law should not have been endowed against the feoffee. For to deter and retain men from committing of treason or felony, the law hath inflicted five punishments upon him that is attainted of treason or felony." He then enumerates these punish- ments, and among then the loss of his wife's Dower, and adds " so as the woman shall lose her Dower as well against the feoffee as against the lord by escheat. And so it was resolved in a writ of Dower brought by Mary Gates, late wife of John Gates, who after the coverture had infeoffed Wiseman in fee, and after committed high treason, and was (a) Perk. sec. 308, 387, (cites 13 E. 1. Dow. 172. M. 15 E. 3. Dow. 68.) Bro. Forf. de terres, pi. 78. F. N. B. 150. Gilb. Uses, 402. (b) P. C. b. 3.0.3. (c) C. 110. Id) Sect. 17. (fl) Sect. 13, (/) Co. Litt. 37, a. 392, b. Stanf. PI. Cor. 195. (g) St. 5 Ei. c. 11. 18 El. c. 1. 8 and 9 \V. ?. c. 26. 15 and 16 G. 2. c. 28. (h) Perk. sec. 365. 3 Bac. Abr. 534. (i) See Sav. 54. TITLES OF DOWER HOW FORFEITED. 101 thereof attainted, that the wife should not be endowed against the feoffee, and in that case it was resolved that so it was at the common law in case of felony."(^) In the report of this case hy Dyer, he notes the words of the statute, 5 and 6 Ed. VI. c. 11," that the wife of any man attainted of any manner of treason whatsoever *//^/// m *no wi.se he r *.^ ^ ■, received to ask, challenge, demajid, or have Dower of any '- J of her husband^s lands during the force of that attainder. And yet note the case above, that the lands aliened before the treason committed, were never subject to any forfeiture or escheat, as in the case of Vavisor at the end of the Chapter of Dower in Littleton; and therefore A. Browne, serjeant, was very angry with the above judgment." This judgment however is confirmed by the decision in Maynye's case.(/) Maynye, seised of lands in fee, made a feoffment to a stranger, commit- ted treason, and was attainted thereof, and had a charter of pardon and died. It was moved by Plowden in the Exchequer, if the wife of May- nye should have Dower against the feofiee; and per Man wood, C. B. "By reason of this attainder Dower cannot accrue to the wife, for her title begins by the intermarriage, and ought to continue and be consum- mated by the death of the husband, which cannot be in this case, for the attainder of the husband hath interrupted it, as in the case of elopement, and this attainder is an universal estoppel, and doth not run in privity only betwixt the wife and him to whom the escheat belongs, but every stranger may bar her of her Dower by reason thereof, for by the attain- der of the husband the wife is disabled to demand Dower as well as to demand his inheritance; and he cited the resolution of all the justices of England in the case of the Lady Gates, 4 Ma. Dyer, 140." When, however, after the attainder of treason, the husband procures a charter of pardon, his wife will, *it seems, be dowable of ^ „ _ all lands of inheritance of which he becomes seised after the ^ > J charter of pardon, for, as Perkins observes, " notwithstanding that she was his wife at the time of the attainder, yet the issue which the hus- band might have had by her, after the purchase of his charter of pardon, is inheritable, "(w) But notwithstanding the charter of pardon, the wife shall not have Dower of the land which he had before the pardon; and even, as it seems, thougli such land descended to, or was purchased by him mesne between the attainder and the pardon. (;^) In Maynye's case, before cited. Chief Baron Manwood observed, " the pardon doth not help the matter, for the same extends but to the life of the offender, but doth not take away the attainder, by which sho is barred to demand Dower during the said attainder in force."(o) This observation, however, if the cases above cited are to be received as law, appears to be too general in its language. But if the heir reverses the attainder by writ of error, then the wife shall be endowed; and though before the treason committed the baron had levied a fine with proclamations, and five years had passed before the reversal, yet she shall have her Dower; for during the attainder she (fc") Co. Liu. 41, a. Gate v. Wiseman, Dy. 140, b. 13onloc ami Dal. 55, a. S. C. {I) 1 Leon. 3. (h)^ Perk. sec. 387, and see Rro. Escheat, pi. 27. S. P. as to fclouy before the Stat 1 Ed. 6. c. 12. {n) Bro. Escheat, pi. 27, as to felony before the Statute, (o) 1 Leon. 3. Vol. XL— 2 K 102- PARK ON DOWER. could not claim, and she had no means of reversal, and the action and ^ *ri2:ht of Dower accrued to her after reversal of the attain- r *223 1 J ^, > If a woman is herself attainted of treason or felony, she will thereby lose her Dower, hut if she is pardoned before the death of the husband, she will be restored to her Dower. (9-) In an ancient reading by Phil- ins, it is held that if the wife be attainted, and then the husband pur- chases land and aliens it again, and then the wife is pardoned, she shall have Dower of that land. And he cited Maunsfield's case, adjudged 28 Elizabeth. In that case a jointure was conveyed to the wife before the coverture, and during the coverture the husband purchased other lands and aliened them again, and died: the land which the wife had in joint- ure was evicted, and the wife had Dower of the land which was pur- chased and aliened by her husband at the time when she was barred of her action of Dower. So if wife elopes, and husband purchases lands, and aliens them, and then the wife is reconciled, she shall have Dower of those lands, (r) These cases seem to proceed upon the ground that the bar is to the action only, and not to the title. There are some acts of the wife which amount to so violent a breach ^ of the marriage contract, as, of *their own force, to amount L ^-"^ J to a forfeiture of Dower, by way of penalty. (5) These for- feitures arise by the statute law. By St. 1.3 Ed. I. c. 34, (commonly called Westm. 2,) it is enacted, Si uxor sponte reliqtierit virum suum, et abierit, et moretur cum adultero suo, amittat in perpetuum ac- tionempetendi dotem suam, nisi vir suus sponte, et absque co'trcione ecclesiasticd,[t) earn reconciliet et secum cohabitare permittat. Lord Coke, in commenting on this statute, observes on the words si sponte reliquerit, et abierit et Tnoretur cum adultero, that although the words of this branch be in the conjunctive, yet if the woman be taken away not sponte, but against her will, and after consent and re- main with the adulterer without being reconciled, she shall lose her Dower; for the cause of the bar of her Dower is not the manner of the goino- away, but the remaining with the adulterer in avowtry, without reconciliation. (?/) He also observes upon the words moretur cum adultero, that although she does not continually remain in avowtry with the adulterer, yet if she be with him, and commits adultery, it is a tar- rying within the statute: also if she once remains with the adulterer, and ^ ^ . -, after he keens her against her *will: or if the adulterer turns L -■ her away, yet she shall be said 7norari cum adultero, withm the act.(y) And if the wife goes away with her husband's agreement and consent with A. B., and after A. B. commits adultery with her, and she remains with him, without reconciliation, she shall be barred of her Dovver.(tf;) ( p) See Mcnvill's case, 13 Co. 19. Moor 639. S. C. 2 Bulstr. 24.5. cited. Iq) Co. Litt. 33, fl. 13 Co. 23, in Menvill's case. Perk. sec. 349. (r) Hargr. Co. Litt. 33, a. n. (8.) (s) Co. Litt. 32, a. (cites Fleta. 1. n. c, 22. Br. c. 109. Mirr. c. 5. sec. 5.) 2 Inst. 433. Perk. sec. 354. 43 E. 3. 19. 19 E. 4.30. Sydney v. Sydney. P. W. 276. (() See 2 Inst. 436. Perk. sec. 354. («) 2 Inst. 435. Co. LiU. 32, 6. 43 E. 3. 19 i. Perk. sec. 3.54. Bro. Dow. pi. 12. (v) 2 Inst. 43G ; Co. Litt. 32. b.; Perk. sec. 354. (w) 2 Inst. 436. In Coot v. Berty, Kep. t. Holt. 232 ; 12 Mod. 232, in dower, the de- fendant pleaded elopement in the wife, who replied, that her husband had bargained and TITLES OF DOWER HOW FORFEll KD. 103 But, it seems there must be a going away in some sense, for it is said that if she remain in adultery upon the husband's hinds or tenements, she shall have Dower, l)ecause the sanic is not an eh)i)('inent.(r) So, if the lands were of the joint purchase of the husbanil and wife; '< because the husband is to see that none such live within his land;"(y) or though the wife live within the house of a free tenant of the manor which is her husban{rs.(r) And, " if a man seised of two manors in fee, takes a wife, and when the husband is dwelling at one manor, the wile goelh unto the other manor, and when she is there she lives in adultery, it is said that by so doing she shall not lose her Dower, because it cannot be intended a running away from ^hcr husl)an(l, when the law cannot in- ^ •oor n tend that she can dwell upon the manor of her husband l " J without the agreement of her husband. Tanicn rjit:rre.^\a) It was held in Payncll's case, that after elopement there should not be any averment c/itod )innfuit a(/ii/le7'him, although the man and woman married after the death of the husband, and produced a sentence of purga- tion of adultery in the Ecclesiastical Court. (/;) To prove a voluntary reconciliation by the husband. Lord Coke says that the cohabitation is not sullicient, without reconciliation made by the husband sponte; so as cohabitation only, in the same house with her hus- band, availeth her not. But in a case in Dyer, cohabitation as man and wife, appears to have been held a sullicient proof of reconciliation. Thus, where a reconciliation was jjleaded, it was given in evidence, that the husband and wife had, after the elopement, lain together divers nights, and in divers places, and demeaned themselves as man and wife. It was objected, that they never lived together in one house, but were apart; and the wife continued in adultery with one or more, during the life-time of the husband: sed non (illocatur, for there might have been divers elojiements, and divers reconciliations; and the dclendant ought to take issue on one at his peril. (c) If the friends of the husband esloin him from his wife, so that the wife does not know what is become of him, and the friends of the hus- band publish that *lhe husband is dead, and after, they pro- , •oofi 1 • cure tl)e wife to release all marriages and interests which she L ~ J can have in him as her husi)and; and after the wife, by the persuasion of the friends of the husband, marries with another, that dies, and she takes another husband to whom notice is given that the first is living, but no notice is given thereof to the wife, though the wife lives in adultery, and though the husband was not out of the realm, or beyond sea, so that the wife ought to take notice that he was living, yet, inasmuch as she non reliquit virum .sjjoule, as the statute says, but by the persuasion of the friends of the husband that he was dead, and it does not appear sold her to the adulterer, and held bad. Sec also Poyncll's case, Rol. Pari, vol.1. 110. No. 2 ; 2 Inst. 435 ; Hargr. Co. Lilt. 32. a. n. (10.) (.j) V. N. B. 150 (cites 43 E. 2. 19.) Uilb. Dow. 402 ; Co. Litt- 32. b.; 2 In«L 43fi. quxre. (»/) 8 E. 2. Dow. 153, adjudged. (:) Ibid, adjudged ; 2 Iiist. 436 ; S. P. contra ; though Lord Coke says it ha» been held otherwise. (a) Perk. sec. 335. (/') '- Inst. 436. (c) lb. Uaworlh v. Herbert, Dy. 106. b. 104 PARK ON DOWER. that she ever knew that he was living, this is not any such elopement as to bar her of her Dower, {d) It is said by Perkins, " that notwithstanding a woman will not go unto her husband into another country, where he dwelleth not, when he is wounded; and notwithstanding that he dieth of the same wound, she will not bring an appeal of his death, yet she shall be endowed, (e) But quaere, if the husband lie sick in his house, where he and his wife are both dwellina:, and his wife will not come to him in his sickness, if she shall have Dower."(/ ) Another cause of forfeiture is stated by Lord Coke. " If a woman say she is conceived with child by her husband whilst he lived, and in P ^^ g- ^ truth is *not, whereby the next heir is disturbed, she shall *- J lose her Dower, if she acknowledge the same before the justices."(^) By an Irish statute, 6 Ann, a woman by subtle means, or secret in- sinuations and delusions, threats, and menaces, prevailing on the son and heir apparent of any person having lands of the yearly value of 50/. or personal estate of the value of .500/. to marry her, is rendered incapable of demanding any Dower or thirds, or other interest out of the real or personal estate of her husband. (A) It only remains to add under this head, that if detinue of charters by the demandant is pleaded to a writ of Dower, and the demandant denies the detinue, and takes issue thereon, and it is found against her, accord- ing to the books she shall lose her Dower, {i) Supposing all the circumstances requisite to the attachment of a title of Dower to have concurred, and no act to have been done either by the r *99« 1 1^'Jsband *or wife by which that title is barred, extinguished, *- -^ or forfeited, there may yet exist a personal disqualification on the part of the wife, to prevent her becoming entitled to the benefit provided for her by the law. At this day, the only existing disqualification of this nature appears to be that of Alienage. (A;) The law, which nihil facit frustra,vf\\\ give no estate which it does not enable the donee to keep, and therefore an alien can take nothing either by Descent, Curtesy, or Dower.(/) This disability appears to have been partially removed by an act of parliament of Hen. V. (not inserted in our statute book) by which aliens who from thenceforth should be married to Englishmen by license of the king, are enabled to demand their Dower after the death of their husbands in the same manner as Englishwomen, (w) It seems also that the Queen consort is dowable, though an alien, by the law of the crovvn.(n) (d) Green v. Harvy, 9 Vin. Abr. 241. (e) Perk. sec. 364 (cites H. 6 H. 3. 102.) (/) lb. sec. 365. Ig) 2 Inst. 436, (cites T. 9 E. 2.) (A) See Kent v. Whitby, 4 Bro. P. C. 362, where it was held that this being in nature of a penal statute must be construed strictly, and therefore when it is pleaded to a writ of dower, the jury must expressly find that subtle means, &c. were used, for they are not to be presumed from the circumstances of the marriage being private, without the father's consent. (i) Hob. 199, per cur. in Brickhead v. Archbishop of York, and see chap. xiv. infra. {k) Doctr. Plac. 148. Co, Litt. 31 b. Jenk. Cent, 1. ca. 2. (/) Per Hale, C. B. 1 Vent. 417. Molloy, 364. 7 Co. 25. 2 Danv. 321. {m) Rot. Pari. (Vol. IV. p. 128) 8 H. 5. n. 15. Hargr. Co. Litt. 31, b. n. (9.) 2 Danv. 652, pi. 3. („) Co.Litt. 31, A. OP ALIENATIONS AND rilARGES BY THE HUSBAND ALONE. lO'i The (lisqiinlificalion of alienage may be removed cither by denization, or naturali/ation; but as to the efroct of these two modes there is an im- portant distinction, for in the former case, if the husband aliens the land before the wife is denizened, she will not be entitled to Dower, " be- cause (says Lord Coke) *her capacity and possibility to be .o o endowed come by the denization. "(o) L " J According to a case in Jenkins, an Englishwoman residing in France at the time of war between the two nations, shall not have her Dower in England of her husband's lands until there is peace; and the reason given is, that she is under the power of the king of France, and if she should have her Dower while she resides there, it would tend to weaken the king of F^ngland.(;;) Tlie j)oint will scarcely be considered law at this day. As an alien, although he has a capacity to purchase lands, can oidy hold them for the benefit of the king, the wife of an alien, although an Englishwoman, can derive no title of Dower; for as he has no interest in the lands himself, no person can have any interest by him.(y) It was formerly held that the profession of Judaism by the wife, was a disqualification to her enjoyment of Dower. The following case is put by Lord Coke: " A Jew born in England taketh to wife a Jew born also in England, the husband is converted to the Christian faith, purchaseth lands, and enfeoficth ''another, and dieth; the wife brouglU a writ of _ *no/i t Dower, and was barred of her Dower; and the reason yielded •- J in the record is this. Quia vera cuntra justiliam est,qiiud ipsa (lutein petat vel habeat de teneniento quodfuit viri sui, ex quo in conver- sione sua noluit cum eo adhrrere el cum eo convert i.'\i') This law may, without much hazard, be stated as obsolete. (a-) ^CHAPTER XI. [ "SSI ] Of ALIENATIONS Ulld CHARGES hj/ the HUSBAND ALONE, pVCvioUS and subsequent to the attacliinent of a title of dower. Any effectual alienation by the husband, previous to the attachment of a title of Dower, confers an estate on the alienee which will be gooil against the wife, although she afterwards survives her husband. Tlie estate being taken out of the husband, is placed beyond the reach of the attachment of the title of Dower; for a woman is not dowable of such estates as her husband was seised ot at any time, but of such estates only as he was seised of at any time during the an'erture.(a) (o) Co. Litt. 33, a. 13 Co. 23. Jenk. Cent. 1. ra. 2. C/j) Jenk. Cent. 1. ca. 2. (cites 4 H. 3. Dow. Filz. 179. 8iamf. Prar. ch. 12.) (q) Co. Lilt. 31, a. (cites Bract, f. 2'J8. I'J E. 2. Uow. 171. Dame Hole's case, 1.1 E. 3. Uow. ytatham. 13 E. 1. Dow.) (r) Co. Litt. 31, b. (cites Dors, ciaus. 18 H. 3. .M. IV.) Jeiik. Cent. 1. ca. 2. (cites 3 H. 6. 65.) (s) See the very learned disquisition on tlie laws of England with regard to Jews in Plowden on Usury, Part I. Chap. iii. (o) See p. 24, supra. 2 K 2 106 PARK ON DOWER. The rule is generally propounded that the title of Dower will be pre- vented by any alienation by the husband before marriage', but under some circumstances this may happen as well by an alienation after marriage as before, and therefore the correct mode of stating the rule is, that the alienation shall be previous to the attachment of the title of Dower. For if the husband has an estate in lands which, by reason of any precedent or interposed estate of freehold existing in another person, r *2'?2 1 3t the time of the alienation, is not subject to an incipient L ^ title of *Dower, an alienation of that estate, whether before or after marriage, will prevent the wife from ever becoming entitled, although the particular estate afterwards determines, or is consolidated, in the life-time of the husband. In this case, although the husband is seised during the coverture, the estate is not of such a quality, during his seisin, as a title of Dower will attach upon; and it was not till after his alienation that it attained that quality. If however the estate of the husband is of such a quality as that Dow- er incipient will attach upon it, the alienation must necessarily be before the marriage is solemnized to transfer a title discharged of Dower, For this purpose it is sometimes necessary to distinguish between alienations which are voidable only, and those which are ipso facto void; for although the alienation were voidable, yet if it never was avoided during the coverture, there will of course be no title of Dower. But if the alienation were simply void, the seisin never having been transferred to the alienee, remained in the husband, and became subject to the attachment of Dower. This question has sometimes arisen upon the effects of different modes of alienation by tenants in tail; since, in some cases, an alienation by a tenant in tail is merely void, and in other cases is voidable only; and consequently the question that the wife is or is not dowable of the estate tail, will depend upon the mode of alienation which was adopted. It is now clearly settled, that if a tenant in tail conveys to a man and his heirs by bargain and sale, lease and release, or covenant to stand seised r *oQq -] to *uses, a base fee passes, commensurate with the time of *- ~ -' the estate tail, though defeasible by the issue in tail when their right to the possession accrues. (6) If therefore a tenant in tail conveys in either of those modes before marriage, as the estate of the bargainee, releasee, or covenantee is good as against the tenant in tail himself, there will be no seisin in him during the coverture. It is ad- mitted likewise that where the conveyance operates by transmutation of possession, the tenant in tail may limit the use by way of remainder, even though that remainder cannot take effect till after his death; as where it is previously limited to himself for life, remainder to another.(c) It is admitted also that although the conveyance does not operate by transmutation of possession, the use may be limited by way of remain- der, if it may by possibility take effect in the life of the tenant in tail, as a bargain and sale or covenant to stand seised to the use of the cove- nantee for life, remainder to J. S. in fee.(c?) But it is clearly decided(e) (6) Marhel V. Clarke, 2 Raym. 778. Salk. 619. 11 Mod. 19. Holt. 615. Goodright v. Ti^ead. 3 Burr. 17U3. (c) 2 Raym. 782. Goodright v. Mead, ubi sup. {d) 2 Raym. 782. (e) Machel v. Clarke, ubi sup. OF ALIENATIONS AND CHARGES BIT THE HUSBAND ALONE. 107 that if on a conveyance by tenant in tail without transmutation of pos- session, the use is so limited that the remainder cannot take effect till after his death, (as to himself for life, remainder to another) the remain- der is void, and as a covenant hy tenant in tail to stand seised to the use of himself *lbr life is only good for the sake of remainders, if the remainders arc void, the whole is void, and lie contin- ^ ^^^ I ues seised of his old estate tail. In this cason which ihcy grounded this, "that he being tenant in tail, and reserving to himself ati estate for iiisi own life had reserved all that he might lawfully dispose of," cannot now be accinled lo a* ibe true ground. See also Yelv. 51. Moor, 683. iff) P. 2'2f). and see Gilb. Uses, 97. Cro. Car. 569. (A) See Kiggil v. Player, I Salk. 111. (t) The point has been determined, in ctrect, by the cases of Parker v. Hlicke, Cro. Car. 568, 569, and Benson v. Scott, Carth. 275. 1 Sulk. 1H5. 3 Lev. 385. 4 .Mo reversion *of the same land, and the tenant for life attorn, '- -* and the grantee of the rent dieth leaving the tenant for life, his wife shall be endowed of the rent, but not of the land, because the freehold and inheritance were not in the husband simnl et scviel during the coverture. ''(^) So if the owner of a rent-charge, after marriage releases the rent to the terre-tenant, the widow shall notwithstanding be en- dowed of the rcnt.(r) In this case the remedy of the widow is ng.uiist the terre-tenant, and not against the heir of the husband, for the heir has (<) Shep. T. 273, 274. Stoughton v. Leigh. 1 Taunt. 410. Co. Liu. 46, a. S. P. ■■ (o tenant in tail, 7 Co. 8, 72. In priicticc this point is never oilvcrteil to as to leases nt rack- rent, as the rent is an equivalent for the possession, and censes on evictiim, ami it is very improbable that a dowress would evict a responsible teniint unless there is any grow* dim-re- pancy between the rent and the actual value ; but as to building leases, or other leases for the purpose of improvement, the point seems to deserve more attention than in UKually directed to it. The rarity of actual evictions by a dowress is probably the cause of the existing ab- sence of solicitude. {11) Jenk. Cent. p. 36. As to Crown debts, see chap. xvi. (r) Bro. Seisin, pi. 18. (cites P. 19 E. 2.) Co. Lilt. 42. a. (cites 7 H. b. X.) (w) Co.LiU. 32, fl. (.V) Perk. sec. 320. (i/) Perk. sec. 340. (z) 6 Co. 7D. (cites b E. 2. Dow. 143. 10. 20 E. 3. 27. 24 E. 3. 29. 34 Am. I.'). 22 E. 3. Dow. 131. 44 E. 3. 32.) 7 Co. 130, where see the form of the writ of dower in .-uch case, S. P. as between lord and tenant. Perk. sec. 322. 110 PARK ON DOWER. nothing for which the writ can be broutrht, and though the tenant has not the rent, yet he has the land out of which the rent issues, and the tenant of the land pays iL(a) A case put by Perkins shows that in some instances the wife may be benefited by the release or surrender of the hus- band. '-Lord and tenant are by fealty and twelve-pence [rent]; the tenant taketh a wife, and the lord purchaseth the tenancy in fee, and the estate is executed in him, and the tenant dieth, and his wife is endowed of the third part of the tenancy; now she shall not be attendant for any rent, because that by the purchase of the tenancy in fee by the lord, the seignory was determined, and a thing which is determined cannot be revived. (A) r *241 1 "And it may happen in some cases that the wife will con- clude herself from avoiding charges created after the title of Dower commenced, by praying damages upon her recovery in Dow- er; for as she can have no damages unless the husband died seised, (c) by praymg damages, she accepts herself dowable of that estate of which the husband was seised at his death; and if, at the time of the charge created, he had a different estate in the land, that charge will be sustained against her; for of that estate the husband did not die seised; and if she had elected to take her dower of that estate, she could not have prayed damages. As when A. seised of lands in fee married, and granted a rent charge, and afterwards made a feoffment in fee, and took back an estate tail, and died, and the wife recovered Dower against the issue in tail by reddition, and making a surmise that her husband died seised, prayed a writ of inquiry to assess damages, which was granted to her; in this case, remarks Coke, she holds the land charged with the rent charge, for by her prayer she accepteth herself dowable of the second estate, for of the first estate whereof she was dowable, her husband died not seised, and so she hath concluded herself; wherefore if the rent charge be more to her detriment than the damages beneficial to her, it is good for her in that case to make no such prayer.(c^) It should also be observed, that if the widow accepts Dower of the r *oAo "1 ^^i'" against common rights in *that case she shall hold sub- •- "^ -' ject to the charges of the husband, (e) at least asto so much of the land charged whereof she is endowed against common right. As " if a man be seised of three manors in fee, and take a wife, and granteth a rent charge issuing out of all the three manors, and dieth, and the wife taketh one manor by assignment of the heir for her Dower, in allowance of all the three manors; now two parts of this manor doth remain charged to the distress of the grantee, notwithstanding that the grant of the rent charge was made during the marriage: and the reason is, because that as to the two parts she had taken her Dower against common right; for according to common right she ought to have the third part of every manor."(/) This doctrine however appears only to extend, generally, to assignments made without suit, for it is added, " but in the same case, if she had recovered her Dower, and such assignment had been made (a) Jenk. Cent. 1. ca. 6, (cites 22 E. 3. Dow. 131.) (i) Perk. sec. 429, (cites M. 21 E. 3. 130.) (c) See post, chap. xiv. {d) Co. Litt. 33, a. (cites 14 H. 8. 28.) (e) Co. Liit. 32,6. (/) Perk. sec. 330, (cites M. 26 E. 3. 133. T. 17 E. 2. 164.) and see Hargr. Litt. 32, b. note (2.) OP ALIENATIONS AND CHARGES BY THK IirSBAND ALOXK. HI unto her by the sheriff, she should have holden the same discharged. '^f^) But if a man be seised of three advowsons of three several cliurcbes, and takelh a wife, and f^ranteth unto a stranjjer that lie shall [)rf ;ient to the next avoidance of the three churches which shall lirst become void, and the grantor dieth, his wife bringeth a writ of Dower against the heir before any church become void, and recovereth; and the sheriff doth assign unto her the advowson of one church for her Dower in allowance of the "^othcr churches, whicli advowson assigned unto her , , doth first become void after the grant made by the husband, ^ J and the avoidance happeneth after the assignment of the Dower, it seemeth unto some in this case that the wife shall not have this avoid- ance, but the grantee sliall have the same; because that she is endowed against common right, for of right she ought to have but the third avoid- ance of each advowson of each church. And notwithstanding that the assignment be made by the sheriff it shall not prejudice nor oust the grantee of his right, because he is a stranger unto the assignment, and also he cannot otherwise take advantage of his grant, but only at this avoidance, tamcn qicerc. ]iut otherwise it is in case of a grant of a rent-charge out of three manors, for when the assignment is made by the sheriff of one manor in allowance of all the manors, the grantee may distrain for the whole rent in the other two manors, and in every part of them; and it shall not be more prejudicial unto the heir this way than the other way. "(A) It frequently happens also that a person who purchases 6o77rf^r/e from the hus!)and after the title of Dower has attached, may protect himself from an eviction under that title, by taking an assignment of some prior term to a trustee for himself This is a ])oint of such frequent occur- rence and discussion in practice, that the student should be recommend- ed to make himself familiar with the learning on the subject which he will find discussed in a subsequent chaj)ter. ■*As a qualification to the rule that the husband cannot ^ *oa\ n defeat the wife of her Dower by alienation after marringe, ^ " ^ must 1)C noticed the cases of alienations by force of parlicidar customs, in which cases, the estate of the customary tenant or alienee, takes effect in point of title, by relation to the custom, and not merely from the actual period of the grant. Thus if the husband be lord of a manor, in which there are customary tenements, demiseable for lives by copy of court roll, and before or during the coverture, the lives expire, and the lord afterwards grants new copies, and dies, the wife shall hold her Dower of the manor subject to these co])ics, and shall not avoid them.(i) So also, if there be a custom to grant copies in reversion, expectant upon existing copies for life, such grants, tiiough made after the marriage of the lord, will be binding upon the wife.(k-) And although, in the case first put, the copy for lives had determined during the coverture, and the lord had entered, and kept the lands for a time, yet, if he afterwards grants a new copy, the copyholder shall hold the land discharged of the Dowcr.(/) The principle in all these cases is, that the copyholder is in {^) Ibij. (/,) il.ul. .pr. :i.Ti.aa2. (i) Ijrowne's casp, 4 Co. 24 ; 8 Co. 63. b. said to have been so adjudged ; and see Sn»yJ V. Sncyd, 1 Atk. 441; and p. 45, supra. {k) ciiam V. Dover, 1 Leon. H>, adjudpod. (/) Per Gawdy, J. in Cham v. Dover ; 1 Leon. IG. 112 PARK ON DOWER. by the custom, and not by the act of the lord: and the custom is para- ^ - 1 "^ount the title of Dower. (m) *Till, therefore, the demise- L J able quality is destroyed by non-user, or otherwise, the hus- band may at any time charge the Dower of the wife with a new demise by copy. The estate of the copyholder is not derived out of the own- ership of the lord, but the lord is only as an instrument to make the grant. It is scarcely necessary to mention, that in order to afford this pro- tection against Dower, the custom must be strictly persued; and there- fore where the custom of a manor was, that the land was used to be de- mised by the lord of the manor, or his overseer, or his deputy, and a man seised in fee of the manor, married, and made his will, and thereby gave authority to certain persons to make leases according to the custom of the manor to raise fines to pay his debts, and died; and those persons held a court in their own names, and granted a reversion belonging to two men who were copyholders to three others, it was held, upon de- murrer, that the wife, who had had the third part of the manor, includ- ing these copyholds, assigned to her by the sheriff, should avoid the grant made by the persons authorised by the will.(w) And yet, it seems such grant is good in other respects, (o) It has also been formerly decided, that the simple alienation of the r *o4R I husband may be a good customary bar to the wife's title of '-''-' Dower, where she partakes *of the benefit of the sale, as where a custom was pleaded that if the baron aliens the land, and ex- pends the money between himself and his feme, she shall be barred of her Dower; and a like custom, where the feme receives part of the purchase money; both these customs were held good.(^) The writ- er is not aware that any such customs are considered as existing at this day. It should also be noticed as the prevailing impression of the profession that under enabling acts, such as those of the West-India and London Dock companies, the Grand Junction Canal, and the improvements at Temple Bar, Snow Hill, and Smithfield, the wife's title of Dower will be bound by the alienation of the husband, although the title is taken by way of conveyance only, and the purchase money is not invested in other lands, or paid into the Bank. This is understood to have been the opinion of several gentlemen of high professional reputation, in an- swer to the requisition of an eminent conveyancer, who, on the behalf of the corporation of London, had called for fines from vendors whose wives had titles of Dower, and the writer believes that the subsequent practice in the great majority of cases has been to dispense with fines. (m) 1 Leon. 16, in Cham v. Dover ; 8 Co. 63. b. in Swayne's case ; 4 Co. 2d, in Browne's case. In Cordel v. Clifton, 2 Leon. 1.52, a different and mistaken reason was assigned by Periam, J. viz. that the title of dower is not consummated before the death of the husband, so as the title of the copyholder is completed before the title of dower. This reason would' equally prove, that every estate made by the husband during the coverture, would prevail against the dower. (n) Slowman's case, Dy. 2.51. a.; 1 Leon. 16. S. C. cited. (o) Co. Litt. ,58. b. (/>) Bro. Customs, pi. 78 (cites 3 Ed. 3 ;) pi. 53 (cites 20 E. 3.) Bracton says, that there is a custom in Lincoln, that if the husband sell his inheritance for need, his wife shall not have dower of it, but otherwise if he mortgage it, or make a lease thereof for need. I3ract. 309. OF THE DEATH OF THE HUSBAND. 113 *Cir AFTER XII. [ -247 ] Of the CONSUMMATION of the title op dower Ijj/ the death of the husband. The last circumstance requisite to the completion of a title of Dow- er, is the death of the husband. («) PVom this period, the incipient title which existetl in tlic wife durinj^ the coverture, becomes consum- mated and perfected, and her right of action to obtain the fruits ol that title commences. It seems to have been the old law that, where it could not be made to appear positively that the husband was dead, as where he was absent beyond seas, and no intelligence of him could be obtained, the wife might recover Dower conditionally, viz. that if he did return from be- yond seas, she should render back her Dower to the fcoflec of the hus- band, without suit, and receive the prolits in the mean time, wiih sufli- cient sureties on her part to do the same, or otherwise the tenant to keep the land.(Z») In a later case, where issue was taken upon the death or life of the husband, the demandant brought two witnesses, wliereof one was the brother of her husband; but their testimony tended to no full proof, but only by conjectures and presumptions, viz. *' because the ^ ♦24s i husband departed the kingdom in *the first year of Queen L ^ Mar)^, on account of his religion, and was a minister, and for these seven years has been absent, and in this time of this religion restored here, he is not come back, nor can any merchant of that country, sc. of Germany, or Englishmen who travel in those parts, tell of his Ijcing alive, nor is there any token of it; wherefore they conclude in their consciences, that they rather think him dead than alive." And no wit- ness of the life of the man being produced by the tenant, judgment was given upon this evidence for the demandant. And a case was cited of M. 2 E. II. 24, where, in Ciii in vita, the death of the husband of the demandant was proved by four, who agreed in all points, and at the essoin day, the tenant produced twelve proofs of the life of the man, who also agreed in all points, which proof was holden stronger, where- fore the demandant was barred, (c) It is observable that this question of the death of the husband, when brought in issue on a writ of Dower, is not triable by a jury, but by the court, y;er testes;{(l) and it has been said, that after the court have given judgment upon the proofs, the matter shall never be broueht in question again upon better proofs, for this is in cllert to attaint the court, and im- peach their credit. (e) It has been formerly held, that the civil death oi" tlie bus- , ,^, ^^ . band by his entry into religion, shall not consummate 'his l wife's title of Dower, although his heirs should inherit immediately, and the reason is saiil to be because he cannot be professed in religion with- (rt) Litt. sec. 36. ib) Hughes' Writs, 159 (cites Bract. 302. pi. 2.); ami mo Woman • Lawyer, p. -74. (f) Thorne v. Rolff, Dv- IS;''- <»•: 1 And. 20 ; Moor. 1 1. 15 ; Bendl. S9. y. C () .*^ec the iuccceding section of ihii chtpler. Iq) See F. N. B. 8. note (Z.,) 149 (K.) 116 PARK ON DOWER. presenting at every third avoidance ;(r) or, of the moiety of an adowson in gross, by presenting at every sixth avoidance.(5) As to tithes, it was held in the Countess of Oxford's case, that the most equal assignment is of the third sheaf; for if the garbs of the third part of the aral)ie land were assigned, it would be in the election of the terre-tenant, whether he would sow it or not.(^) But it seems, that the assignment is good, though the tithes of the third yard land be as- signed. (?^) In Dower of the tithes of wool and lambs, it was demanded of the court how the sheriff should deliver seisin, and the court held it the best way for the sheriff to deliver the third part of the tenth part, and the third tenth lamb, viz. the thirtieth lamb.(z>) Of mines, which were opened in the lifetime of the husband, whether in his own land, or in the lands of others, it was held in a late case, that the slieriff may lawfully execute his duty by assigning such a number of ^^ 1 *them as may amount to one-third in value of the whole, or L "' -'by directing separate alternate enjoyment of the whole for short periods, or by giving the widow a proportion of the profits.(tt') It is said that the heir is not compellable to assign unto his mother for her Dower the capital messuage which was his father's, or any part thereof, although she be dowable of the same. But he may assign unto her other lands and tenements, of which she is dowable, in allowance of the capital messuage. But if there are not any other lands or tenements of which she is dowable, and the heir assigns unto her a chamber in the capital mes- suage, in the name of Dower, and in allowance of the same messuage, and she agrees thereto, it is a good assignment. But it seemeth (says Perkins), she is not compellable to take the same, because the messuage is as it were an entire thing; and it shall be but trouble and vexation unto a woman to have a chamber within the house of another man; and if she will not agree unto the same, then the heir may assign unto her a rent issuing out of the same messuage in the name of her Dower.(a:) r- iSQfjt; n *It ^^ difficult to gather from the books any distinct pro- ■- J position, as to the mode in which the proportion of the dowress is to be estimated and ascertained, in setting out her Dower. It is obvious, that if regard were to be had to the quantity alone, a mere (r) Perk. sec. 342 ; Co, Litt. 32. c; 3 Leon. 155 ; 17 E. 3. 38. 6.; contra 17 E. 3. 22. b. (s) Woman's Lav?yer, 1632. 4to. p. 98. (i) 1 1 Co. 25. 6.; Co. Litt. 32. a.; Roll. Rep. 68. (w) Kettleby's case, Hargr. Co. Litt. 32. a. n. (3.) (t)) Anon. Brownl. 126. {iv) Stoughton V. Leigh, 1 Taunt. 410. Some observations have already been made on this caise, at p. 116, to which the reader is requested to refer. (x) Perk. sec. 406 (cites H. 33 H. 6.) sec. 342 (cites M. 45. E. 3. Dow. 50. 16 Ass. 41.) The author of The Woman's Lawyer, 1632, 4to, observes, that " by the old v?riters, a woman cannot challenge a castle, chief mease, or head of any barony or county, or any thing within the close or circuit of the chief mease to be assigned her in dower, but for her habitation she may choose aliquod honestum messuagium de villenaffiis, that is, some bond tenements within the manor. And where there is none such to choose, she shall have one clapped up for her in aliqua platea competenti de communi bosco, as long and broad as the third part of her husband's chief house. If there be neither base tenement, nor wood, nor ground wherewith and whereon to build a widow's habitacle, she may be endowed (for necessitv,) of the principal messuage, and without necessity always, if the heir be so con- tented."' p. 99, 100. OF ASSIGNMENT OF DOWEB. 1 1 7 illusory assipfnment mie;ht be made, by setting out a tract of land of lililc or no annual value; and in modern times, the relative value, even of ad- jacent property, is often enormously disproportionate, in con!«c(iucnce of buildings, and numberless oilier circumstances. Tliat an Jssi^nment of onc-tliird in v;due, and not iti point of (jiiantilij merely, was wbat was contemplated by tbe old law, admits of no doubt; but in tbe simple state of property in former times, it is probable that the only provision that was made for the security of the dowress was, by requiring that the sheriff should assiy;n to her a third part of each existing denomination of property. Thus, he was bound to assign her a third [)nrt of each manor, if there were several; or a third j)art of the arable, a third part of the meadow, and a third part of the pasture. (_y) In assignments by the heir, it was a matter of arrangement between him and the widow, what particular portion of the property should be set out, and if they could not agree, she resorted to her suit. With some apparent dereliction of principle, we find it asserted by Perkins, that buildings or other *imj)rovements made />_y //it _ •orr i alienee nfihe husband, shall not be included in the compu- ^ ^ J tation of value on the endowment of the wife. The passage is as fol- lows. " If a man be seised of twenty acres of land in fee, and taketh a wife, and enfeolfeth a stranger of the land, and the feoffee build there- upon a castle, or a mansion-house, or other bid/diin^s, or otherwise doth improve it, so as it is worth more by the year than it was in the possession of the husband, the wife shall not have Dower but according to the value it was at in the time of the husband. And yet, if a dis- seisor build upon land which he hath by disseisin, and the disseisee enter, he shall have the building, &.C.; ami so shall it be if the feoffee upon condition broken, &.c. the difference is apparent. "(r) So, in tlie book of assize, wc find that a woman demanded Dower of the third part of land, and the tenant said that he bought the land of her husband, not being built upon, and that he builded upon it, and she had judgment of the third part, sa/vis eclificiis; and it is added with some "inconsistency, and no damages, because the land was amended by build- ing upon it.(«) The reason for this is assigned in one of the books, because the heir is not bound to warrant except according to the value as it was at the time of the feoffment, and so the wife would recover more against the feoffee than he would recover in value, which is not reasonable. (A) *0n the other hand, it is said, if a woman is entitled to ^ .^^^ , have Dower of a marsh, and the heir by his industry makes ' ' it good meadow, she shall recover and have Dower as now it is, because the title is to the quantity of the land, and not to the value; but, if the heir hath improved it by building, or any collateral improvement, it is otherwise, (c) The latter point is, however, slated contrary by Lord Coke.(^/} {y) 1 Roll. Abr. 683. See however 12 E. 4. 2 ; Bro. Dow. 72. contra. (r) Perk. sec. 328 (cites M. 17 H. 3. 192;) and sou 30 E. I. Uow. 81. \l) Har5rCo?Litt.32. a. n. (8) ^cilea I H. 5. 11. 17 E. 3. 17 H. 3. Dow. l'J2. 31 E. 1. Vouch. 2SS.) (c) 13 H. 3. Dow. 292 j Co. LiU. 32. o. ; Plow. Qu. IG. Id) Co. Litt. 32. a. 2 L ^ 118 PARK ON DOWER. It is probably difficult to find any satisfactory reason for the distinc- tion. A house erected upon another man's land, becomes attached to, and parcel of the freehold, and ensues the title of the land ; and if it shall go with the land to the person absolutely entitled thereto, it is not easy to understand why it shall not also become subject to particular interests in the land. The understanding of the profession, the author believes to be, that the wife shall be endowed of the land as she finds it at the time of her title of Dower consummated, and the succeeding passage in Per- kins is strictly consonant with that proposition, viz. " But if a man seised of land in fee, upon which there is building, that by reason thereof is worth Ad. more by the year, and he taketh a wife, and enfeoffeth a stranger, who takes down the building, and the feoffer dieth, the wife shall have Dower according to the value of the land, as it was at the time of the death of the husband, and hath no remedy for the taking away of the building before the death of the hus- band, notwithstanding that the building was upon the same land in the ^ 1 possession of the husband *during the coverture; for the L J wife hath not right to have Dower before the death of the husband. Tamen qnsere of this case. "(e) So also it is stated by Coke, that " if the value be impaired in the time of the heir, she shall be endowed according to the value at the time of the assignment, and not according to the value as it was in the time of her husband.'-*(/) In the late case of Stoughton v. Leigh,(^) it was the opinion of the Court of Common Pleas, that where a husband is seised of lands wherein there are mines open and wrought in his life-time, the sheriff must esti- mate the annual value of the open mines, as part of the value of the estates of which the widow is dowable. No authority was referred to for this opinion, and it may perhaps be considered as encountered by a passage in Chief Baron Gilbert's Tract on Dower, which was not ad- verted to in the argument. The passage is as follows. " If the wife, after the assignment of Dower, do improve the land, and make it better than it was at the time of the assignment, an admeasurement does not lie of that improvement. 14 H. 3. Admeasurement 10. 13 E. 1. ibid. 17; but if the improvement be by casualty, as a mine of coals, or of lead, which are in the land, &c. which have been occupied in the hus- P *c)cn -1 band's *time, the doubt is the more; but she shall not dig '-"'-' new mines, for that would be waste. The distinction touch- ing the mine seems to be this, that where a mine is not open, she cannot work it at all, because it will be waste; if it be open, and in work, it seems to be only a casual j)T0 fit ; and a casual profit shall not avoid an assignment, or be so admeasured as to vacate it, since it is not certain to continue during the life of the dowress; and therefore not to he com- puted into the value of that part luhich she possesses, unless the value was co-extensive [in point of duration] with the estate which she is to have in it."(/i) (e) Perk. sec. 329. In 14 H. 4. 33, it is made a query if the heir decay the land, tene- ments, or houses, if the wife shall be endowed in the land according to the value when it was in the possession of her husband, or shall have the third part as it is, and have allow- ance for the improving. See also Plowd. Qu. 46. (/) Co. Litt. 32. a.; (cites 30 E. 1. Vouch. 298.) (^) 1 Taunt. 402. (A) Gilb. Dow. 390. OF ASSIGNMENT OF DOWEH. 1 1 '» In Hoby v. Hoby(/) (1683), the subject seems to have been viewed in mucli the same li^ht as it was in the later case of Stou^hton v. LeiKh. In that case the tenant came into ef|uily to l)e relieved against an awi^n- ment of Dower by the sherid', cliargin^ fraud and colhnion, atul that there had been assii;ned to the defendant for her Dower one full third part of the lands, wliich amounted to 300/. per annum; and that in this third part there was a coal work, which one year with another was worth 300/. per annum beyond all charges, and yet no consideration was had of it in the assignment of Dower. It appears from the Register's hook, that the court projjosed to the parties that the defendant .•should either take 300/. per annum, tlie sum originally proposed to he settled on her by articles before marriage, or that she shouUl work all the coal-pits, and dig coals, as well on the plaintilF's land, as the land assigned the de- fendant in Dower, and to take a third peimy thereof, or else a new writ *of seisin on the judgment in Dower should be issued to , mnrn -i the sheriff, to divide the lands into three parts, and to choose ' J by lot; the defendant thereupon consented to accept a third penny of the clear ])rofits of the said estate, j)rovidcd she might have it allotted to her out of the lands and coal-works already allotteil her in Dower, which not being opposed on the part of the jjlaintitr, was so decreed, and the de- fendant was to be at liberty to break or make any new mouths to the said coal-pits, in any part of the plainlilV's laruls, not assigned, or any part of the lands assigned ber in Dower, and to work the same as she should think fit, and should at any time sink pits, work, dig, and carry away coals in and from any part of the plaintiff's lands, not assigned in Dower, as well as in what lands arc assigned, the defendant in Dower allowing and accounting to plaintilV two-third parts of the clear profits, and the defendant was to have an allowance of 40/. jjer aimum out of the plaintill's two-thirds of the jjrolits to repair the mansion-house.(A*; What weight would have been allowed to the proposition of (lilbert, in the particular case of mines, if that authority had been adduced to the court in Hoby v. Hoby, and Stoughton v. Leigh, it is not for the author to determine; but from the language of the certificate in the latter case, it may l)e gleaned as the impression of the court, that in assigning Dower by the sherilf, the one-third of the widow is to be ascertained by refer- ence to a general estimate of the annual value. The purposes of sub- stantial justice may propably be better consulted by the adoption of this ^principle, than by a strict adherence to the old rule requir- , .^g. , ing the sherifl'to assign a third part of each denomination of l- *" ^ property;' but, as the authorities on this head were not brought before the court in Stoughton v. Leigh, that case can hardly be considered as overruling the more ancient decisions, j)articularly as the jiu!ge« ex- pressed themselves as declaring their imj)ressions of what the existing law was, rather than as pronudg.iling any new exposition thereof. It seems that a rent may be reserved for equality of Dower, if the thin"- assigned be of greater value than the dowress ought to have. Hut it is added, that this cannot enure as a reservation, if the wife in another clause of the deed makes a grant of a rent without any mention in the deed that the thing is of greater valuc.(/) (/) 1 Vcrn. 218. 3 CI. Ca. IfiO. (A.-) R05. Lib. 1683. A. f. 256. (/) 17 E. 3. 10. 120 PARK ON DOWER. In some cases, the widow may be put to her election to take her Dower out of one or the other of different estates on which she is dow- able, and will be restrained from demanding Dower of both. Thus, if a man seised of one acre in fee, takes a wife, and exchanges the same acre with a stranger for another acre of land, and the exchange is ex- cuted, and the husband dies, the wife has a title of Dower upon both acres, but she must elect to have Dower either of the acre which the husband ga^-e in exchange, or of the acre which he took in exchange, and she shall not have Dower of both.(7w) «ofio 1 *Some other cases of election have been noticed in a pre- ^ - -' J ceding chapter. (t?) 2dly. Of assignment contrary to common right. An important distinction prevails between an assignment of Dower made by the sheriff, in pursuance of a juflgment at law, and a voluntary assignment made by the lieir or grantee. In the former case, the rules of law as to the modes in which Dower shall be assigned according to the particular nature and circumstances of the property, are to be strictly pursued, (o) for although the wife should consent to take her Dower in some other manner than that due of common right, yet the sheriff cannot bind the heir or tenant,(/>) whose assent to an assignment against com- mon right is as necessary as that of the wife; but on a voluntary assign- ment by the heir or terre-tenant, the parties may, by mutual agreement, waive a strict assignment according to the rules of law; and make such arrangement for the mode of enjoying Dower, as they think fit. (y) Thus, the heir may, on the acceptance of the widow, assign one manor in lieu of a third part of each of three manors;(r) he may assign an un- P *Qf;q -i divided *third part in common, in lieu of a third part in •- ~' -' severalty. (5) And, in an assignment by the heir or terre-tenant, parcel of the thing to which the woman has right of Dower may be assigned unto her in the name of Dower, and it is not necessary that the third part of the thing unto which she hath right of Dower should be assigned unto her, for if the fourth part, the fifth part, or the moiety, is assigned unto her in the name of Dower for all the freehold which her husband had, and she agrees thereunto, it is a valid assignment.(/) So also lands in Wales may be assigned unto a woman in allowance of all the freehold of her husband; and by this assignment she shall be (m) Co. Litt. .31. b.; F. N. B. 149 (N.); Perk. sec. 319 (cites M. 23 E. 3. 130. M. 13 H. 3. Dow. 93); 3 Leon. 271. i_n) Supra, p. 239. (0) Booth V. Lambert, Styles, 276 ; Perk. sec. 414 ; 12 E. 4. 2 ; but see 18 H. 6. 27, contra. (p) See Perk, sec. 332 ; but see Anc. Entries, Qua. Imp. 529 10; and Qua. Imp. in Dow. 1. contra. (9) See Stvles, 276, in Booth v. Lambert ; 12 E. 4. 2 b. 26 Ass. 41. 1. (r) 1 Roll. Ab. 683. 4. (s) Coots or Booth v. Lambert (1651,) 9 Vin. Ab. 682 ; Styles, 276 ; Co. Litt. 32. b. n. (1); and see also Rowe v. Power, 1 Bos. and P. N. R. 1; and Perk. sec. 413, who makes a qu.TBre on the point. (t) Perk. sec. 405. But it is said that alt the land of the husband cannot be assigned in the name of dower. lb. sec. 408. OF ASSIGNMENT OF DOWER. 121 excluded to demand Dower of any other lands which her husband had within any place in England. (m) On assignment by the shcrilF, a rent issuing out of the land cannot be assigned in lieu of l)ower of the land, for such assignment is againul common right, and the sherilf cannot charge the land with the rent, but only he who is owner of the land;(t') but such an assignment by the heir is good enough, if the widow assent.(?/') *So it is said, G Eliz. that in Dower, acceptance of quar- j- •ord, ^ ters of corn during life is a good bar, as of acceptance of ^ ■' rent; otherwise of an horse, and sucii things as do not arise from the land, (a") But an assignment of rent or other thing in recompense of Dower, cannot have a condition annexed to it, but such condition will be merely void; for the rent comes in place of the Dower of the land, and ought to be of the same nature, viz. absolute. (?/) And such rent oannot be for a less estate than the life of the dowress.(r) Nor can lands or tenements, or rent issuing out of lands or tencmcnta, of which a woman is not dowable, be assigned unto her in the name of her Dower, in allowance of other lands or tenements, whereof she is dowable. (rt) The reason of this is, that a right to an estate of freehold cannot be barred by the acceptance of any collateral recompense in pais;{b) and therefore such an assignment would not conclude the wife from claiming her Dower of the other lands, which is what is to be un- derstood by the proposition. If Dower be assigned of the land, excepting the trees growing upon the land, this is a void exception; *and, if Dower be as- j- .jg^ i signed upon condition, the condition is void, for the dow- *- ress is in by her husband, and the party making the assignment, which merely ascertains the certainty of the parcels, cannot qualify her estate or deprive it of its incidcnts.(c) II. What persons, in respect of interest in the land, are competent to make a valid assignment of Dower in pais, namely, when it is not as- signed by the sheriff, or commissioners, upon suit. The assignment of Dower in certainty being an act involving the interests of the persons entitled to the inheritance, it became requisite that no one should be legally comi)ctent to assign Dower, who had a less estate than one of freehold. As no tenant of an inferior nature was capable of binding the rights of the freeholder in a real action, and con- (m) Perk. sec. 409 (cites P. 7 E. 3. 9. Dow. 103;) Jcnk. 41. pi. 88. So of land, m Ireland. Arg. Cart. 187. (v) 22 E. 4, cited Noy. 10; but see 20 Ass. 41, roiilra. (w) Jenk. Cent. 1 . ca. 17; 1 Roll. Abr. 683 ; bro. Dow. pi. 01. And it »crm». .uch in assignment is good even after judgment for dower, and ii shall l>e a uood bar in o ncire fnaua. Perk. sec. 410 (cites E. 31 E. 3. Sci. fa. 99;) and sec Uy. 91. a. (x) Moor. 48. [59. pi. 167.] \y) See Wenlworth v. Wcntworth, Cro. Eliz. 452 ; Noy. 55 ; and see 1 And. 288, (z) Hob. 153. ... (a) Perk. sec. 407, 410; Co. LiU. 34. /;. 5.34. I,.; Dy. 91. /'■; Uro. Dow. pi. 61: but M« Harg. Co. Lilt. 34. h. n. (9), that if the licir assigns dower of laiidx of which the husband was seised, but the wife was not dowable, she is tenant in dower. Setl qu. (f)) 4 Co. 1. /;. . . (c) Colthirs Iv, Bejushin, Plow. Com. 21; Law of Baron and Feme, p. 105 ; Lo. Li«. 34.6. 122 PARK ON DOWER. sequently, as judgment obtained on a writ of Dower brought against a person having merely a chattel interest, would be voidable by the free- holder, the consistency of the law required that such person should not bind the freeholder by assigning Dower without action. A person having only a chattel interest is not entrusted with the defence of the inheritance, and the freeholder might possibly have had a good bar to allege to the claim of Dower. The propositions are indeed conversible, that agamst whomsoever a writ of Dower will lie, that person is com- r * e 1 petent to make a valid assignment, or in other words, L '^"" J whoever is ^compellable by writ to assign Dower may do it without writ. It will accordingly be found in the books that an assignment of Dow- er by a guardian in socage, a tenant by elegit, statute staple, or statute merchant, or a lessee for years, is not good.(^) An exception to this doctrine existed formerly in the case of a guardian in chivalry, found- ed upon reasons which it is no longer of practical, importance to inquire into.(e) But an assignment made by a disseisor, abator, intruder, or other per- son having the freehold by wrong, may, and in most cases will, be good, and binding upon the persons having right.(/) In inquiring into the competency of different persons to make a valid assignment of Dower, it is a material circumstance, and very ne- cessary to be borne in mind in consulting the old cases, that different degrees of capacity are required for the different modes of assigning Dower. Dower is assignable, as it has been already shown, either according to common right, or specially, and against common right. An assign- ment of Dower according to common right, if made by a person pos- ^fp^- -i sessed of the freehold by right or by wrong, is binding both L -' upon the wife, and upon all persons ^having interests in the lands assigned :(^) an assignment against common right is binding upon neither further than they are agreeing thereto, and therefore such an assignment, if made by a person having only a particular or defeasi- ble interest in the inheritance, though valid during the continuance of his interest, if accepted by the wife,(A) is not binding upon his success- ors, or other persons having title; nor if made by the heir, is it binding upon persons having charges or other interests in the land, although created subsequent to the attachment of the title of Dower.(2) Thus if a disseisor, abator, or intruder assign a rent unto a woman in allowance of her Dower of the land, the disseisee, or he who has right unto the land, shall not be bound by such assignment.(/t) And if a tenant in tail {(1) Perk. sec. 404. Co. Litt. 35, a. 6 Co. 58. 19 Ass. 6S. A qusere is made as to a guardian in socage in 1 Roil. Abr. 682. (e) See Co. Litt. 38, b. Vexk. sec. 403. 9 Co. 17. 6 Co. 58. Bract. 314. (/) Co. Litt. 35, a. 357, b. 2 Co. 67. 6 Co. 58. Perk. sec. 394. 12 Ass. 20. (^) Perk. sec. 404, and see sec. 426, that if a disseisor assign dower [according to com- mon right] and the disseisee enter upon the tenant in dower, she may have an assize against him. (A) See 2 Bos. and Pul. N. R. 33, in Rowe v. Power. (/■) See p. 241, supra. {k) Perk. sec. 398, (cites 7 Ass. 41. E. 10 E. 2. Dow. 189.) Jenk. Cent. 1. ca. 17. OP ASSIGNMENT OF DOWER. 123 assign an undivided third part of the lands in Dower, it is good only during the continuance of his interest.(/) On the same principles an assignment by one of several jointenanta, if according to common right, is a good assignment, and shall bind his com|)anions; "butif against common right, they shall I- ® J not be bound by \\,{iii) and the law is tiie same of an assignment by a husband seised in right of his wife.(7i) For the complete validity of an assignment uguiml common right, it is necessary that there should be the agreement of all parties who may be prejudiced by it. IJut if niade by a person having the fee, he is of course competent, in regard of his unlimited ownership, to bind all persons claiming under him. The consequences of these distinctions have been already traced in the preceding portion of this chai)tcr. On the general i)rinciple that whoever is compellable to assign Dow- er by writ, may assign Dower in pais, an assignment made by an in- fant is good; for, as it will be seen in the following chapter, the parol shall not demur for non-age in a writ of Dower.(o) It would seem from one j)assage, that if Dower be assigned by a per- son not legally competent, as by a guardian, the heir may treat the wife as a disseisor, and he may have an assize. (/;) But it is held that the assignment is not merely void, but shall stand good until avoided. ((^) So also of an assignment made by , »oro 1 a person legally competent *to assign Dower, but of a thing L " J of which the woman was not tlovvable.(r) Although an assignment of Dower by a disseisor, abator, &c. is, gene- rally speaking, good, it is otherwise if it is procured by the covin of the wife; as if she cause another to disseise the tenant, and recovers Dower against, or has Dower assigned by him.(.v) From the abhorrence of the law to covin, it refuses to recognise a recovery obtained by it, although upon a rightful title: and the heir may treat her as a disseisor, she having made herself a party to the disseisin. (/) Although no estate is vested in the dowress until the certainty of the land is ascertained by assignment, yet as the estate, although suspended in the meantime, does not pass by the assignment, but the dowress is in, in intendment of law, by her husband, ncillier livery nor writing is essential to the validity of an assignment. (y/) In the very learned reasons for the appeal in Rowe v. Power, drawn up by Mr. Margrave, it was contended that this was only true as aj)plicable to assignmcnt.s (/) See Itowe v. Power, 2 Bos. nml Pul. N. U. II. But it has lieon saiJ that if a tenant in tail assigns a rent out of the land in lieu of dower, thin shall bind his i^sul^ unlci>ji it amounts to more than a third part. Per two judnes in Hicklv v. Bickly. I .And. -S8. (w) Perk. sec. 397, (cites E. 7 H. G. :}. 1. Dow. 2.) 'Z Co. 67. Co. Lilt. 34, i. 35. o. Bridg. 130. (m) Perk. sec. 399, (cites E. 10 E. 2. 4, 139.) and see Hargr. Co. Litt. 35, a. n. (2.) (o) y H. 6. G, b. {p) 19 Ass. G8. Gilb. Dow. 387. Such at least seems to be the inference. See also Plow. .'Jl. 54. F. N. B. 148, note (a.) {q) Perk. sec. 403, and sec 1 And. 268. (r) PcrU. sec. 404. (s) 18 H. 8. 5. 19 H. 8. 13. 44 E. 3. 4f.. 11 E. 4. 2. lo E. 4. 2. 7 H. 7. 11. Plow. 61, 54. Perk. sec. 394, 395. Jenk. Cent. 4. ca. 98. \t) 11 E. 4. 2. (u) Co. Litt. 35. a. 2 Bos. and Pul. N. K. 34, in Kowc v. Power. 124 PARK ON DOWER. according to common right, and that even a tenant in fee could not, by mere agreement with a widow, and without livery, pass a legal estate in Dower to her by assigning an undivided third, that being against .^ ^ -, common *right. It was therefore contended, that an assign- [ 2/0 J j^gj^^. Qf j)ower in the form of an undivided third by a tenant in tail solely seised, and accompained with livery, was nothing more or less than a lease or feoffment for life by tenant in tail, not war- ranted by the enabling statute of the 32d of Henry the eighth. Tliis argument is negatively opposed by the current of authorities in the old books assuming an assignment against common right by parol to be valid,(y) and it meets with but little support from principle. The law does not suppose that because a woman takes an assignment of Dower against common right she takes thereby any thing short of an estate in Dower properly so called, and if she takes an estate in Dower she must take it as an emanation from the estate of her husband, and not as a free- hold created de novo by the heir. All the books testify that if a woman accepts an assignment of Dower by word against common right, she is bound by it, and cannot afterwards demand her Dower to be assigned to her in the strict manner. Now if such assignment against common right was to be considered merely as a g7'ant by the heir in satisfaction or allowance of her Dower, such grant could not be a bar to her, for the right to an estate of freehold cannot be barred by a collateral recompense. It will indeed be found from the books that even a rent assigned in *„-, -, allowance of Dower of land or *a capital messuage is good V ' \ without deed,(tt;) which plainly shows that it is considered as coming in lieu and in the nature of Dower. And such rent must be pleaded by the word assignavit, and not dedit.[x) If the sheriff assigns Dower contrary to common right, when it might have been assigned regularly, it seems that this is error in the execution and may be taken advantage of by the tenant as such.(y) It is how- ever said by Doddridge, J. in another case, that if the sheriff commit er- ror by assigning a larger part than he ought, a writ of admeasurement lies, but not error, inasmuch as the judgment and award of execution are good.(z) It is, however, very doubtful whether the writ of admeasure- ment lies in this instance; and the writer does not believe that any pre- cedent for it is to be found ; but it is said that if on a recovery of the third part in Dower the sheriff assigns a moiety, &c. the tenant has remedy against the sheriff by assize, or he may have a scire facias to r *272 1 ^^^^S" ^^ novo.{a) In one case it seems the sheriff *was L -^ committed for an improper assignment of Dower, as where (v) It was admitted in the reasons for the appeal that the case of Coots v. Lambert supra, p. 263, was an authority to the contrary, but the plaintiff in error claimed, if necessary, to controvert that case. (-u>) 12H. 4. 176. 7 H. 6. 33. i. Jenk. Cent. 1. ca. 17. Hob. 153. Perk. sec. 406. And upon an assignment of part of the lands in dower,the heir by parol may assign away through the other parts. White v. Robinson, 2 Roll. Rep. 475. (x) Cro. Eliz. 4.')2. ly) Styles, 276, in Booth v. Lambert. As to error in the return, see Howard v. Mans- field, Palm. 264. (i) Palm. 266, in Howard v. Mansfield. (a) Bro. Extent, pi. 13. F. N. B. 138, note (b.) (cites 22 R. 2. E.'cecution, 16.'5. 21 H. 7. 29.) Gilb. Uses. 388. The writ of admeasurement, however, lay on downment by the king in Chancery. F. N. B- 149, (A.) OP ASSIGNMENT OP DOWER. 125 he returned that he had assigned to the demandant, for her Dower of a house, the third part of eacli chamber, and liad chalked it out for her.(A) In another case, the sheriff "was committed for taking CO/, to execute his writ of execution, and the court ordered that the assignment of Dower being under vahie, sliould be amended. (f) Itseems also that a court of C(iuity will entertain a hill to he relieved against a partial assignment of Dower hy the .«herifl', and thai that court may direct a new writ of seisin to the sheriH", and even order him to di- vide the lands into three parts and to choose hy lot,(c/) In the particu- lar case from which this doctrine is gleaned, the assignment was charged to be fraudulently done, and besides the excess of value, it appeared that the dowress's own father was the only person that, on behalf of the in- fant children, defended the writ of Dower, and appeared to see the same set out, which was relied on as looking like a collusion. The case of Sneyd v. Sneyd(e) affords another instance of an assignment by the sheriff* being set aside in a court of equity on a bill charging partiality and excess. In every case where Dower is recovered by judgment, the assignment is at this day made by the sherifr,(/) unless the parties , , previously agree upon a ^division. In all cases where it is ^ ■* set out by agreement, it is certainly advisable to have a written instru- ment to ascertain the lands. The course pursued by the Court of Chancery, on the title of Dower being establislied or admitted, appears to be to appoint a commission to set out the Dower, and to decree the heir to assign accordingly ;(^) but it appears in one case that it was ordered to be allotted by the master, and the dowress to be let into possession. (A) In a case where the de- fendant in his answer said that he had offered to assign her Dower to the plaintiff", and to pay one third of the rents and profits from the lime to come. Lord Loughborough said he should think uj)on that case, if there were any difficulty, that upon the view of the answer, a commission would hardly go to sot it out; hut that it would jiroceed u|)on the con- fession in the answer. («') Under a decree, the dowress can of course only have an equitable title till assignment by the heir in pursuance of the (\ccrec.{k) Of the writ of Admeasurement of Dower, a remedy now nearly obso- lete, the following account is given by Chief Baron Gilbert. "The writ of admeasurement of Dower lieth where the heir, when he is witliin age, endoweth the "wife of more than siie ought .. ,.,-. -, to have Dower of, or if the guardian(/) endoweth the wil'e of ^ " ' J more than one third part of the land of which she ought to have Dower, then the heir at full age may sue this writ against the wife; and thereby (b) Abingdon's case, cited Palm. 265. (c) l-onRvjII'H cmo, 1 Kcb. 743. (J) Hobyv. Hol)y, 1 Vern. 218. (e) 1 .\lk. 412. (/■) .\s to assignments (now obsolete) by the escheu.or, see K. N. B. 263. (^) Sec Lucas V. Calcraft, 1 Bro. C. C. 1:M, and JUT I or.l I.ouifhborouRh in Mumlt ». Mundy, 2 Ves. J. 125. Megolt v. Mcgott, 2 Dick. 7^, (for thi orip;inal duth not extend to another county,) and pray that she may he endowed of his estate, and that is for the bene- fit of her voucher to he newly enihjwed. Vide in 4 K. III. 36, b. and 6 E. III. 1 1, a, h. The tenant in a writ of Dower vouched the heir of the husband, and the demandant testified tliat he by tiescent, A:c. in the same county; and judgment was ^iven a^aifi.st the heir if he had, and if not against the lenant.(5) In G E. III. 20, b. the wife of a stran- ger brought a writ of Dower, and the tenant vouched the heir,(/) &c. the demandant shall not recover against the heir, because there wantji privity. In 18 E. III. 30, b. in Dower, the tenant vouched, and the vouchee vouched the heir of the husbanil of the demandant, the demandant testi- fied that the heir had assets by descent in the same county, the demand- ant shall not recover against the heir, but against the tenant , .q,- -, only, for there is *nol iinmediate j)rivily betwixt the de- t " J mandant and the heir, for the demandant sliall recover against the heir only when the tenant in demesne vouches him. Vide HcgisL Judic. 15, 16 E. III. Dow. 56. 3 El. Dy. 202." It seems, however, that if a woman is endowed by a disseisor, she shall have the warranty. (?/) It has been already oi)servcd that the edect of an assignment of Dow- er is to discharge the remaining lands from the title of Dower, except so far as there may be a lien upon them by reason of the warranty. IJut it has been doubted whether if there be three or four several fcofTees of land of which a woman has right to have Dower, and one of them, by agreement with her, assigns parcel of his land unto her in allowance of ah the freehold which belonged unto her husband, whether this assign- ment shall discharge the other feotlees against the dowress. It is sup- posed by Perkins that it shall; " but some (he adds) have said tin- con- trary, (z') for they say that they cannot j)lead this matter against the wo- man in several writs of Dower brought by her against them, tameti quxre. And the feofiec who made assignment cannot come into court and plead this matter in actions brought against the other feoflces, be- cause he is a stranger unto those actions, and there is not any means to bring him into court."(?^») " If, however, a man seised of two acres in fee "takes wife, _ mo-a i and enfeoll's a stranger of one of the acres with warranty, and '- • ' J dies, and /(o/A aci'esare ino/iecoiinli/, und the heir doth emlowhisniother of ids acre in allowance of all her Dower in both acres, it is a good :>-•> gn- ment; for if the feotfee had been impleaded by the woman in a writ of Dower, he might have vouched the heir, and the demandant shall re- cover against the heir conditionally. (.r) And if the heir leases for life unto a stranger parcel of the laml which he hatli by descent from his fa- ther, and doth assign unto his mother parcel of the laml which he hath in possession in allowance of all her Dower, as well for the land leased as for the land which rcmainelh in his possession, the assignment is (s) 2 KoU. Abr. 751. Dy. 202, pi. 71. Winch. 81, 8S. Hull. 71, 72. (/) Quivrp, what heir? (u) V. N. H. M'J, note, (cites 7 E. 3. 7, 21 E. 3. 48, 10 E. 3. Quid juri. 41.) (r) See Co. Li.t. 3.^ a. («•) Perk, •ec, 402 (cite. 3 E. 3. Dow. 76.) (x) Perk. sec. 400, (cites M. 3 H. 6. 17.) Moor 25, 26. Co. LitU 35, a. 128 PARK ON DOWER. good, and yet, if the woman implead the lessee by a writ of Dower, and he vouch his lessor, the wife shall not have judgment to recover against the heir, because he is not bound unto the warranty by his father, who was husband to the woman. Quaere if in such case the lessee vouch the heir generally, and the heir enter generally into the warranty, then it seems that judgment shall be given for the demandant against the vouchee conditionally. "(y) It should be noticed as a point of possible occurrence, that where the wife recovers Dower, by writ, against a vouchee conditionally, [z) the lands of the tenant are not absolutely discharged from the title of *o7o 1 Dower, but may eventually be liable, and that *the lien •- J of tbe judgment will follow the lands in the hands of an alienee. As in the following case: "If a man seised of two acres of land in one county take a wife, and enfeoffeth a stranger of one of the two acres with a warranty, and hath issue and dieth, and his issue en- tereth into the other acre, and the wife brings a writ of Dower against the feoffee, and he vouch the issue, &c., who loseth by default, and the wife hath judgment conditional, viz. to recover against the vouchee, if he, &c. and the demandant sueth execution accordingly, and she is put in execution of land which the vouchee hath by descent in the same county where the Dower is brought as heir to her husband, of which land she is dowable, and tenant holdeth in peace, and the vouchee is restored to the land which the wife recovered by a writ of deceit: in this case the wife shall have a scire facias against the feoffee who was tenant to the writ of Dower; and, notwithstanding that the tenant hath enfeoffed a stranger of the same land before the scire facias brought against him, yet his feoffee shall be bounden by the judgment given in the writ of Dower, because that the writ of Dower was given of the land conditionally, &c."(«) It is also said, that if a woman having a title of Dower marries a second husband, and the issue of the first husband assigns the third part of the lands to his mother by the agreement of the husband, for her r *o9i,r\ ^ I^ower, in allowance of all the freehold which *his father L " -' was seised of; after the death of the second husband, she may refuse it, and be new endowed according to the value of the whole land which was in the possession of her husband during the coverture.(6) But it would have been otherwise if she had been endowed by the sheriff upon writ of Dower brought by her and her husband. (c) We have already seen that, in consequence of the implied warranty, if the particular lands which are assigned to the wife in Dower by the heir are recovered against her by lawful title, her title of Dower on the remaining lands revives, and she is entitled to be new endowed of one third of those lands, although sold by the heir during the interval. (^) It would therefore seem that where a person selling lands relies upon an assignment of Dower of other lands, as discharging the lands sold from a title of Dower, and the lands assigned are held under a different title from those sold, the purchaser ought to be satisfied of the goodness {y) Perk. sec. 401. (i) See chap. 13, infra. (a) Perk. sec. 421, (cites 43 Ass. pi. 32 M. 8 E. 2. Voucher l.o7. M. 3 E. 3. 50.) (b) Perk. sec. 422, (cites H. 33 E. 1. Dow. 177, 2 Inst. 309.) Jenk. Cent. 2. ca. 56. (c) Ibid. ((/) Perk. sec. 418, 419, and 420, OF ASSIGNMENT OP DOWER. 129 of the title to the lands assij»;ned as well as to those !»old. The prtctice, however, should tin; point arise, w(juld |)rol)al)ly l)e cofiaidcrcil otIierwi.M;, governed by tiiat with regard to the bar by jointures, the titles to which are never required. (e) *In the case of (irigbyv. Cox,(y*) part of the plaintiff's bill _ , . appears to have been framed upon an id(;a that a jjurcha.ser '■ J of part of an estate which is sid)jeft to Dower has an equity to have the Dower turned upon tiie part remaining unsold, in discharge of the part purchased. In that case, the estate had been settled, on the marriage of the defendant and his wife, subject to the Dower of the mother, to the separate use of the wife, who ajjpointed part to the plaintiff. He fdcd his bill to have the effect of this l)argain, and also praying that he might he decreed to receive the rents and profits of this part of the estate free from the deduction of the motiier's Dower. It does notapj)ear from the report that the mother was a party of the bill. 'I'lie observations of Lord Ilardwicke on this part of the prayer of the hill are scarcely intelligible, and probably depend upon specialties of the case which the report does not dcvelope. *♦ As to the exoneration of this part of the lands from tlie mother's Dower (he remarkeil) by turning it on the other part of the estate, which still is settled to the sej)arate use of the wife, that depends on the appointment of the wife, whether she was bound by that appointment to do so; for as to tlie covenant by the husband that it is free from Dower, that will not allect the wile; nor has plaintiff a title to that decree against her: but has a remedy against the husband. The power of the wife was under this settlement, which is made subject to the Dower, she being to receive the rents and profits to her separate use, over and above the Dower, which *ran over the whole. ^ .^^^ , Then if the wife made an appointment, it was only over and ^ above the Dower; the plaintiff then must rely on that covenant to indemnify and make him satisfaction." In cases where the writ of Dower is brought against several purchasers, it seems that the court of Common Pleas will itself order that the sheriff shall charge them all proportionally, though otherwise he might have charged all out of one party, and the parly could have no reniedy at law. (A') •CHAPTER XIV. [ '283 ] Of the REMEDIES >r the recovery of Dowr.n at law. A DowRESS having no right of entry till her Dower is assigned, cannot. if an assignment is refused^ maintain a possessory action. The legal remedv to enforce an assignment of Dower is by a writ of Dower uudc nihil hahet, or by a writ of right of Dower, brought :.i;:unst the tenant of the freehold; upon which, it" she obtains judgment, Dower is assigned (e) The student is advised to consult the disnission on this •ul.jcrt in Mr. SuKJ.-n'i Treat, on Vend, and Purch. p. 304, 5th edit, and see t^impson v. Gutterulco, 1 .Madd. 009. (/) 1 Ves. S. 517. is) Anon. Frccm. C'.',. 130 PARK ON DOWKR. by the sheriff on the land; and she may then proceed to recover posses- sion by ejectment. lu consequence of the jurisdiction which courts of equity have assumed, in modern times, of setting out Dower, the prosecution of a writ of Dower has become a matter of some rarity: Dower, however, being a legal right, can only be regularly tried at law; and therefore, whenever the title of the Dowress is disputed, upon a bill in equity for a commis- sion to set out Dower, the plaintiff is sent to law to try her right, which can only be done by a writ of Dower; this writ therefore cannot be con- sidered as obsolete. The writ uniformly adopted when the circumstances will allow of it, is the writ of Dower, unde nihil habet,{a) which is a writ of right ^ /I 1 "^ ^^^ nature, *and lies in every case where no Dower has [ 284 J ^^^^ already assigned by the tenant to the writ, within the vill wherein the lands lay of which Dower is demanded; but if she has received part of her Dower of the tenant himself, in the same vill, the proper remedy is the writ of right of Dower, which is a more general writ, extending either to a part or to the whole; and is, with respect to the claim of Dower, of the same nature and efficacy as the grand writ of right, respecting a claim to an estate in fee simple.(6) Before the abolition of wardships, if the lands were held of the king in capite, and the heir was in ward, the only mode by which the widow could obtain an assignment of Dower was by suing the king, as guardian, in the Chancery, or, as is said by some, in the Court of Wards.(c) The whole of the proceedings in this case (now obsolete) will be found in Fitzherbert's Natura Brevium, 263, and Gilbert's Tract on Dower, 412. ^ *To collect all the points upon the writs of Dower would [ 285 J g^^gn ^i^ig volume to an immoderate bulk, and at this day would scarcely be considered as an accomplishment of any value. The following outline, with the help of the references, will probably be suf- ficient for most purposes of practical research. 1. Against whom this writ will lie. It has been already stated that at this day the writ of Dower lies against no one but the tenant of the freehold. (fi?) Therefore it cannot be brought against the guardian in socage,(e) or any person who has but a chattel interest, as a tenant by elegit, tenant for years,(/) &c. And it seems that although judgment and execution should be bad against such a tenant, yet he may afterwards enter upon the demandant. (^) And the tenant of the freehold, before judgment, shall be received; and upon (o) See the form of this writ and the process thereon in Fitz. N. B. 147. (E.) Booth Re. Act. 166. Rast. Ent. 227. b. Reg. 170. a. Gilb. Dow. 37.5. 2 Saund. 42. m. where the whole course of the process upon a writ of dower is detailed with great accuracy in a note by the learned editor. There is a special writ of dower of lands or tenements in London, directed to the mayor and sheriffs. See Fitzh. N. B. 148. (Gilb. Dow. 378. and see 1 Vent. 267. Rayra. 233. Co. Ent. 176. b. (6) Gilb. Dow. 371. 367. F. N. B. 18. (C.) Kel. 128. Booth Re. Act. 166. 118. (cites Registr. 3.) St. Westm. 1. c. 49. 2 Inst. 261. This writ lies for dower of the profits of an office. Fitz. N. B. 8. H. For the form of the writ and process, see Booth Re. Act. 118. Reg. 3. a. Rast. Ent. 234. Fitz. N. B. 7. (E.) Gilb. Dow. 357. (c) Smith V. Angel, 2 Ravm. 78.5. and 7 Mod. 43. Jenk. Cent. 1 ca. 17. Dy. 228. b. 263. pi. 36. 2 Inst. 270. Keilw. 133. b. (d) Supra, p. 265. (e) 29 Ass. 68. Bro. Dow. pi. 63. (/) 9 Co. 17. Iff) Mitchell v. Hyde, 1 Leon. 92. OF THE WRIT OF DOWER. 131 default of the tenant to pray to he received, yet he may falsify after judgment. (A) So also tlie revc r.sioiicr may he received to save his title, where the writ is hrought against the tenant for life.(i) II. As to the process in this action. The process is hy summons to aj)pear, and if the tenant neglects, or does not cast an essoign, then hy grand cape and petit cajMi in the Com- mon Pleas.(A') *0n the return'of the writ of summons, the , ,^ tenant's attorney may enter appearance with the fdazer, and •- * J pray view, &c. Then passes in .some cases a writ of view, whereby thu sherifl" is to show the tenant's land, and on return the tenant's attorney takes a declaration, and generally jileads tie unr/ue seisie, &.c.(/) If the tenant neglects to appear on the return of the grand cape, the demandant is strictly entitled to judgment of seisin and to an award of a writ of in{[uiry of damages; hut if the tenant appear on the return of the grand cape, the demandant, instead of insisting on final judgment against the tenant for his default to the summons, may waive the default and take an appearance upon the grand cape, and so in a petit cape.(m) The jury process in this action is the same as in personal actions in the Common Pleas, viz. a venire /acids, and a hciheas corpora Jura- torian.{n) And hy stat. 24 Ceo. II. c. 4S, sec. l, it is enacted, that in all writs of Dower laidc )ti/ii/ /uibet, after issue joined, it shall not be needful or requisite to have above fifteen days between the teste and return of the venire facias, or any other process to be sued oul for the trial of the said issue, but that the writ of fe;j/reyi/c/«* 'and , nnc.^ i other process after issue joined until judgment he given, ^ -' having only fifteen days between the teste and return thereof, shall be good ami ed'ectual in law, as is used in personal actions." III. With regard to the pleadings. To this writ the tenant may plead in abatement of the demand, as Non tenure either of the whole or part, (o) That he holds jointly with A. not named. (/>) And in these cases, as the writ of Dower nnile nihil iKihct, is a writ cle libera tcneinento, generally, and not, like a pnccipc quod reddat, a demand of a certain number of acres, if the plea is only as to part, the demandant may abridge or narrow her demand to the resiihie,(y) and the writ will remain good, for the abridgment does not falsify it, a.t it would the pru'ci/jc (/u(f(l rcddat.[r) Aiul the demandant may abridge her demand although the tenant does not plead in abatement. (.v) Hut it is said that if the writ is dc libera tc7iementu in I), and S. there can be no abridgment as to all the lands in either of the vills named. (/) (/() Anon. rJrownl. and Goldsb. 126. (i) Ibid. [h) F. N. B. 1 IS. (U.) Fit/.. Dow. 48. 2 Saund. 43. n. (I.) A«to the cwoign ia dower, sec 9 Co. 16. Com. Dip. Fleader. (2 V. 1.) (/) Bull. N. W liy Brid^inan. 1 1'J. n. 2 Saund. M. n. (.1. ) (1.) where it it doubt«d whe- ther the view would be allowed. Com. Dig. I'leadcr. (2 V. 3.) (wi) Staple V. Haydcn, 1 Salk. 216. 6 Mod. ■». 2 Saund. -l-'J. n. (1.) (n) 'See Dennis v. Uennia, 2 Saund. a:JO. Kobiim v. Crutchley, 2 Wil«. 121. (o) Kast. Ent. 2:n. a. b. 2:J2. b. 1 Bro. Ent. 20;'). Clifi. MYi. pi. II. Kob. Ent. 246. 1 Lutw. 716, 717. And see Mitchell v. Hyde, 1 Leon. 92, and 2 Saund. II. n. (I.) Moor, 80. Dal. 100. C/;) Kast. Knt. 22.'j. b. (v) Lev. Enl. 76. 3 Lc». GS. Hernc, 342. (r) 14 H. 6. 3, 4. Bro. 'Abridgment,' pi. l'-'. («) See 2 Saund. 339. (/) 3 Lev. C8. 132 PARK ON DOWER. Ancient demesne.(w) [ *2SS ] *That the demandant married pending the writ.(«) The pleas in bar which the tenant may use in this action are either such as deny the right of the demandant to any Dower at all, or such as admit her title, but allege some reason why she should not be permitted to recover her Dower. Of the former kind are the pleas of Ne iinques seisie que Dower, which alleges that the demandant's husband was never seised of such an estate in the lands that she can have any legal claim to be endowed of i\\G.m.[w) In what cases the ten- ant may support this plea will be found from a reference to the third and fourth chapters of this work. Ne unques accouple in loyal malrimonie. By this plea the tenant controverts the validity of the demandant's marriage with the person of whose lands she claims Dower.(a?) To this plea the demandant must reply that she was married at B. in such a diocese, and a writ shall be sent to the bishop of that diocese re- quiring him to certify the fact to the court.(y) ^ 1 *And if the court in which the demand of Dower is made L -■ is an inferior jurisdiction, which cannot write to the bishop, as if the action be brought in the Hustings Court of London, or any other corporation, the record must be removed, to have it tried, to a superior court which can write to the bishop, and upon return of the bishop's certificate the record is to be remanded, as in a foreign vouch- er.(r) But if the marriage was celebrated in Scotland, where there is no episcopal establishment, the fact must of necessity be tried by a jury, and therefore the replication should conclude to the country, and the issue will be tried in the county where the venue is laid. (a) But in any other case than that of a marriage in Scotland or some foreign country, it seems that a replication to the plea of ne unques ac- couple:. concluding to the country is bad, for it goes to oust the bishop of his jurisdiction. (6) Neither can the demandant reply a sentence in the ecclesiastical court, declaring the marriage valid, for that is only matter of evidence, and no estoppel; and the bishop is the proper judge whe- ther, as evidence, it is conclusive on him.(c) But if the bishop has al- r *2Qn 1 ''^''^^y certified the marriage to the court, that certificate may L -^ be *replied by the demandant, and shall be a good estoppel (u) 1 R. A, 322. (E.) pi. 2, Rob. Ent. 250. Ash. Ent. 297. (f) Co. Ent. 173, b. (w) See the form of this plea in Rast. Ent. 2?0, a. Co. Ent. 176, a. Heme. 340. Rob. Ent. 297. 1 Bro. Ent. 203. Clift. 303. pi. 12. 2 Wils. 118. In what cases the tenant must plead the special matter, and notv'Ve unques seisie. See p. 145, 154, supra. (a-) Co. Ent. 180, a. (.y) Co. Ent. 180, a. 181, a. Dy. 313, b. 36S, b. 1 Leon. 53, 54. Rast. Ent. 228, b. Robins v. Crutchley, 2 Wils. 122, 125, 127. 2 .Tones 38. As to what shall be a good certi- ficate by the bishop, and that he must return the fact and not the evidence. See 2 Roll. 591, 592. Dy. 30.% i. 306. 6. 313,368,9. Wickham v. Enfield, Cro. Car. 351. Easterby v. Easterby, Harnes, 1. 2d Towns. ,Judg. 95, 96. 9 Co. 20, a. Jenk- p. 44. (z) Booth, Re. Act. 167. Co. Litt. 134, a. Co. Ent. 180, b. (a) Ilderton v. Ilderton, 2 H. Bl. 145. (b) 2 Wils. 128. (c) Robins V. Crutchley, 2 Wils. 122, 127. OF THE wniT OF DOWER, 133 to all the world, for to award a second writ to the bisliop would be to try the matter twicc.(ox locked or sealed. (e) And if the heir delivered the charters to the wife, he cannot plead detinue, for she has them by his own act.(X*) And as the privity is the foundation of this plea, it shall not be plead- ed even by the heir, if he has the land by purchase, and not as heir,(/) or if he be not immediately vouched, but only by the vouchee of the tenant, (m) or if he comes in as vouchee having no lands in the county where the Dower is demanded, (/i) or if he comes in as tenant by re- ceipt.(o) In two of these cases there would be an obvious absurdity in the plea, for the jdca alllrms that the tenant has been always ready, and yet is, to render Dower, if the demandant would deliver to him his j. •on/: i *charters, and tenant by receipt, or vouchee over, cannot ^ J render the demandant her Dower, nor can she recover it against him.(/7) In these cases, therefore, the widow may recover her Dower although she persists in detaining the charters, but an action of detinue \s':\\ lie against her for them. Aiul it is saiil, tliat if the wife be with chilil, the heir for the time being cannot plead detinue of charters, for she may keej) them for the infant.(9) It should also be remarked that this plea is not a bar for more lands () But the demandant may reply, that she requested her Dower, and the tenant refused to assign it, and issue shall be taken upon thdLt{w) It is said to be a good plea in bar, that the lands of which a third part is demanded in Dower are pf gavelkind tenure, of which Dower is by custom of a moiety, (a;) It seems that a feme who claims Dower shall have advantage of an estoppel by deed between her baron and the tenant. (y) So also she shall be bound by an estoppel. As where, in a writ of Dower against a guar- dian, the issue was whether the demandant was feme of the father of the heir, and it was found by verdict that she was not, it was held the heir should estop her by this verdict to claim her Dower, though he was not wholly privy to it, because he should have been bound by it, if this had been found against the guardian. (z) ^ ^ *In writs of Dower, the parol shall not demur for the non- L -*-'o J j^gg Qf j-^-^g heir, because of the mischief that might accrue, if the demandant, claiming only an estate for life, should die, and lose the estate. (a) But it is said in the ancient law books, that if a feme after the death of her husband suffers one to continue a year and a day, and he dies seised, his heir within age, the feme shall not have Dower dur- ing the nonage of such heir, but the parol shall demur, because it was her folly that she did not bring her suit. (6) III. As to the judgment. The judgment in this action, generally speaking, is to recover seisin of a third part of the tenements in demand in severalty, by metes and bounds, and the mesne profits and damages.(c) But if the judgment is obtained against several tenants in common, it is error if it be said ' in (r) Dy. 230, a. Perk. sec. 357. (s) Bro. Dow. pi. 41. Perk. sec. 359. (t) Rast. Ent. 224, b. 230, a. Hob. 199. 9 Co. 18, 19, (cites 10 E. 3. 49. a. 21 E. 3. 8, b.) And it seems that if dower is brought against two, who plead detinue of charters, if the demandant delivers them to one of them, although out of court, she shall be excused against the other. F. N. B. 138, n. (cites 21 E. 3. 8. per Manby.) (u) Rast. 224. b. Moor, 81. See p. 227, supra, as to the danger of this plea, if false. (v) Rast. Ent. 236, b. 237, a.; 1 Bro. Ent. 205 ; Co. Litt. 32, b.; Lut. 717; 2 Mod. 25. (w) See Hargr. Co. Litt. 33, a. n. (1.); 13 Ed. 4. f. 7; 1 Lutw. 717. (x) Anon. Sav. 91. (i/-) Roll. Abr. Estoppel (L.) pi, 1 (cites 3 H. 4. 6. Dubitatur. Co. Litt. 252, a.) (i) Roll. Abr. Estoppel. (L.) pi. 11 (cites 30 Ass. 51.) (a) 1 Roll. Abr. 137. Smith v. Smith, Cro. Jac. HI; 3 Leon. 392 ; 3 Bulstr. 138. Gore V Perdue, Cro. Eliz. 309 ; Herbert v. Binion, Cro. Jac. 392. "(6) Fleta, 1. 6,c. 43; Bract. 252;Britt. c. lll,f. 47; Cro. Jac. 392. (c) See the form, 2d Towns. Judg. 102, pL 25, 26 ; 2 Saund. 331, 332. OF THE WIlIT OF DOWER. 137 severalty by metes and bounds,' but it may be ' in three parts to be di- vided. '(^/) If, in Dower, the tenant vouches the heir of the Iiusband in the ume county, and the heir demands the lien, and denies it, it is said this j»sue shall he tried before the demandant shall have judgment in Dower. (cj *lt has been already observed that where the tenant vouches .or o l the heir, the demandant may witness that the heir has lands ^ " J by descent in the same county, and she shall have judgment against liie heir conditionally. (/) So if the heir enters into the warranty of the tenant, and [deads ri>/M per descent, and the issue is found ai:;fiinst him that he has lands in the same county, the demandant shall have judifinent against the heir; but if the issue be found for the heir, she shall have judgment against llie tenant. (^) And, in this case, she may have judgment against the heir condition- ally, without waiting till the issue of assets he tried. (A) Hut it seems that it is not error if she has judgment against the tenant with cesstt execittio until the issue is determined, for if it is found against the heir, the tenant may have scire fucins against him.(/) And if she recovers against the heir, and is afterwards evicted by title paramount, then she may have scire fdcias against ihe tenant to have in recompense, (/c) If the sheriir, after a recovery in Dower, delivers seisin to the demand- ant upon the writ of hab. fac. seisiiiam, this is in law on ouster of all termors in possession of the land,(/) and therefore, if the title of the "^termor is prior to the title of Dower, and this appears to , .^^^ , the court, cither upon the jjlea of the tenant, (m) or the sug- ^ gestion of the termor, on prayer to be received for his term, the interest of the termor will be saved in giving judgmcnt.(;i) This is cflccted either by giving judgment specially, that the demandant shall recover seisin of the reversion, upon which a writ of halt. fac. seis. is awarded to the sherilf, with a proviso quod ten. ad termin. annur. uon expel- /atur;{o) or by giving judgment generally, with acesset executio t\uring the term. Tlie former mode is adopted where there is any rent reserved upon the lease for years, in order to enable the dowress, as the rever- sioner, to obtain the benefit of the rent;(/7) and although the rent lo- (d) Glefold V. Carr, Brownl. ami UolJ«b. 127. (e) Jenk. Cent. 4. ca. 52 ; Dy. 307; but see 9 Co. 17. A. (/) Sec p. 27C. supra ; 9 Co. IS. (^) Jenk. Cent. 4. c«. .02 ; U«ll. 62. (A) Grey v. Williams, Dy. 202, b. (i) Golilingham v. Saunds Winch. 81; Cro. Joe. 686. (k) 27 H. 8, c. 10 ; 32 H. 8, c. r> ; Wynrh. 89. (/) See 3 Leon. 10^! ; l)Ut it is saiil lluU he who claiinii the loaw for yoom. may r«-««tar into the land notwithslandinp: the recovery and the execution of iho dower ; and if b« Im ousted, he shall have his action. Foljan.lm's ease. Go.lb. 103 ; and «« .Mirhcll ^ Hyde. 1 Leon. 92 : and therefore it wa« thought in tho former caw. ihut the .hcnjr .hould iw». execution as if there was not any lease for yearn. See ul»o 1 Com. 188 ; and i Saund. by "Williams, 7. c. note. fml Sec V. 294, supra. , ^ , ... (n) Sec Williams v. Drew, 3 Leon. ICH ; Green v. Hoe. 2 Com. 580; Booth r. Luv Wy. 2 Raym. 1291. (o) Whoatley V. Best. Noy, G.-i ; Cro. Ehz. 564. „ .. . . r- ,. ,,» (v) 1 Koll. 678; Noy, G.-i; Anon. Ow. 32 ; Winch. 80 ; Foljtrobe'a ewe. Godh. 185 Co Litt 32 fl.; 1 Com. 188, in Bodmyn v. Child ; but see Jouk. ]>. 73, pi. 38, conU*. Vol. XI.— 2 N 138 PARK ON DOWER. served is but of a peppercorn, it seems that the dowress is entitled to an immediate execution.(<7) If, however, there is no rent payable in re- spect of the term, as where lands are limited or devised to one for years, remainder to another in fee, or upon a common demise with no clause *"ni 1 of reservation, execution will be stayed during *the continu- '-''-' ance of the term, as no benefit could arise to the dowress from her obtaining seisin, (r) Dower being a real action, no damages were at the common law re- coverable by the wife for the detention. (5) By the statute of Magna Charta,(^) indeed, as we have already seen, her Dower was to be assign- ed to her within forty days after the death of her husband; but, as Coke observes, "of little effect was that act, for that no penalty was thereby provided if it were not (\one.''{ii) By the statute of Merton,(z;) how- ever, the grievance was partially remedied by the following provision: " Of widows which after the death of their husbands are deforced of their Dowers, and cannot have their Dower or quarentine without plea, whosoever deforce them of their Dowers, or quarentine of the lands whereof their husbands died seised, and that the same widows after shall recover by plea, they that be convicted of such wrongful deforcement; shall yield damages to the same widows; that is to say, the value of the whole Dower to them belonging from the time of the death of their husbands, unto the day that the said widows, by judgment of our court, iiave recovered seisin of their Dower, &c. ; and the deforcers neverthe- less shall be amerced at the King's pleasure." The language of this r *or\o 1 statute, it will be observed, extends '^the recovery of damages L "^ "' -" to those cases only where the husband died seised, (it') and the seisin intended by the statute is held to be a seisin of the inheritance, so that upon the death of the husband, the possession immediately de- A^olves upon the heir;(a?) and therefore if the husband aliens, and retakes for life, the wife shall have no damages on this dying seised, for it was only of frank-tenement. (y) But it is immaterial that he dies seised of an estate tail.(2-) It seems, however, that although the husband does not die seised, the wife may become entitled to damages against the alienee, &c. by a de- mand and refusal of Dower, but such damages will be recovered only from the time of the demand. (a) On this point the books observe, that "she can lay no default in the feoffee till she demand her Dower upon the ground, and that the tenant be not there to assign it, or if he be ((?) See Pheasant v. Pheasant, 3 Ch. Rep. 69 ; Tiffin v. Tiffin, 2 Freem. 66. (r) Perk. sec. 335 ; Noy, 6.5 ; Bodmyn v. Child, 1 Com. 185; and see Brown v, Gibbs, Pr. Gh. 97; 2 Freem. 233 ; Godb. 165. (.«) See 2 Inst. 286; 10 Co. 116. (t) Cap. 7. (m) Co. Lilt. 32, b. 34, b. (v) 20 Hen. 3, c. 1. (w) Jenk. Cent. 1. ca. 85 ; Dy. 284. a. pi. 33 ; Bro. Damages, pi. 52. (x) Co. Liu. 32, 6. (cites 16 E. 3. Damages, 83 ; 8 E. 2. ibid. U.) (tf) Yelv. 112. Dame Egerton's case, cited Litt. K. 341; Hargr. Co. Litt. 32, b.n. (4.); 3 Bulstr. 278 ; and it has been held, that if the husband is outlawed, the wife shall not re- cover damages upon the ground that this is a forfeiture of the frank-tenement. Bro. Damages, pi. 98 (cites 13 Ass. 5.) Bro. Utlagary, pi. 36 (cites M. 3 E. 3,) but Brooke makes a query thereof, for the forfeiture was but of the profits, and not of the frank-tene- ment ; and Hcc Bro. Forfeiture de Terres, pi. 30, 75 ; Bro. Utlagary, pi. 59. (z) Thynn v. Thynn, Styles. 69. (a) Jenk. Cent. 1, ca. 85 ; Dr. and Stud. Dial. ii. ch. 14. OF DAMAGES IN DOW T.R. 139 tlicrc, that lie will not assign it; for he that hath the possession o( land vvhcrcunlo any woman hath til Ic of Dower, hath good aiillior- ity, ""as against her, to take the jirolils till she require her ^ ^"^^^ J Dower. "(/.») And even the heir iiimself may, as has hecn already noticed, (c) Have himself from damages, if he comes in upon the summons the first day, and acknowledges the action, and pleads loiil /emps prist, i. e. aver* that he was at all times ready to render Dower, if it had heen demanded. In what cases he may plead this plea has heen already staled. If the demandant takes issue upon it, the damages will await the event of the issue.(c^) For this reason it is that J^oid Coke ohserves, " it is necessary for the wife, after the death of her hushand, as soon as she can to demand her Dower hefore good testimony, for otherwise, she may hy her own de- iault lose the value after the decease of her hushand, and her damages for detaining of Dower. (e) But even where tlie heir j)leads /out temps prist with success, the demandant shall recover damages from the teste of the original to the execution of the writ of inc[uiry. In Corsellis v. Corsellis,(y) upon a trial at har, the issue was, whe- ther there was a demand of Dower and refusal, to entitle the plaintiff to damages. The plaintifl' proved an actual demand of the heir, heing of the age of fourteen years, and then in her custody; *though ^ -ond 1 hy his father's will committed to another person. The in- '- J fant said his guardian woukl not let him assign Dower. Resolved unanimously upon dchate, 1st, that Dower was demandal)le of the heir, though he was under age: 2d, that his guardian was hut in the nature of a guardian in socage, and that the Dower was not demandablc of him, hut of the heir, though not in the custody of the guardian; and that if the heir had entered upon the land to assign Dower, he would not be a trespasser upon the guardian, thougli the custody of the land was com- mitted to such guardian, during the infancy of the heir: 3(.\, that the ne- glect of the heir in not assigning Dower upon demand, though he did not actually refuse to do it, was such a refusal in la\v as to entitle tlie widow to damages. Of course, if the heir controverts the title of Dower, he cannot avail himself of tlic plea o{ tout tev^ps prist; and therefore, whatever delay may have been made hy the widow, she will, if judgment be given in her favour, be entitled to damages from the death of the husband. I^rd Coke indeed remarks, that " some say that the ilemandant in a writ of Dower, that delayelh lierself, shall not recover damages;"(5') hut this seems to be no further true than as it may enable tlie heir to save him- self of damages, on the plea of tout temps prist. In l)ol)son v. Dob- son, (A) in error upon a judgment in Dower, one of the errors assigned was, that damages were given <) morte viri, whereas they ought only to (b) Dr. and Stud. Dial. ii. ch. 14. (r) Supra, p. !:97. Id) Co. Liu. ;J2, 0. 33, «.; Dr. and Stud. 141; llro. Dumani-s. pi. 52,79; Bro. Toot temps prist, pi. 34 ; Bro. Dow. pi. 32 ; Lut. 717. Bro. Enqucst. pi. 79 ; Gilb. Ham, 375. (e) Co. Litt. 3'2, b ; and see Gilb. Dow. 375, 376. (/) Hull. N. P. 117; 1 Crui. Dig. Hii). Iff) Co. Lilt. 32, b.\ and see Gilh. Dow. 375, 376. (A) C». t. Hardw. I'J. 2 Barn. B. R. ISO. 140 PARK ON DOWER. ^^ f. -, have been given from the time of suing out the writ, *since [ 305 J •j.jjjjj j^qj appear there was any demand of Dower in pais; and Co. Litt. 32, 33, was cited, that the demandant should take care to make demand as soon as possible, lest she lose the value of her Dower, and that the heir does no wrong till a demand is made. But it was re- plied, that it was incumbent on the tenants, would they have excused themselves from damages, to have pleaded tout temps prist, as the words of the statute(z) expressly require; and upon this answer, the court overruled the exception. And in Kent v. Kent,{k) the same ex- ception was overruled in a case where the writ was not brought till two years after the death of the husband. But where the demandant, after the death of her husband, entered, and continued in possession five years, and afterwards the heir entered, upon which she brought Dower, it was. agreed that the tenant need not plead tout temps prist after his re-entry, for the time the demandant had occupied was a sufficient recompense for the damages.(/) The feoffee of the heir cannot plead tout temps prist, because he had not the land all the time from the death of the husband, and therefore the demandant shall recover the mesne profits and damages against him; and if he has not provided his indemnity and recompense against the heir, it is his own to]\y.{m) ^ *By damages are to be understood the profits of the third I JUb J p^^j. gjj^gg ^Yie death of the husband, or the teste of the ori- ginal, (after deducting outgoings), and such damages as the wife has sustained by the detention of her Dower,(?i) which are usually assessed severally, although damages given generally, without finding the value of the land, are good.(o) If the lands were leased for years before mar- riage, she will recover Dower, not according to the value of the land, but according to the rent ;(7j) and it follows, that if the rent reserved was only a nominal one, no damages, or none but nominal ones, can be recovered. The case of Kitchens v. Hitchens(5') illustrates this point. The husband's father devised, that in case of deficiency of personal pro- perty to pay debts and legacies, his executors should pay the same out of the rents and profits of his real estate; and when debts and legacies were paid, devised his real estate to his son in tail, with remainders over. The executors entered on the real estate, and the son died before the debts were paid, and before he had any possession, and his widow re- (- »o^7 -1 covered her Dower in the Mayor's Court, and 227/. for L J damages. She ^afterwards instituted a suit in the Court of Chancery to have a mortgage term set aside, and for other purposes, and on a cross-bill brought by the devisee of the lands and executors to set (»■) Quaere, what statute 1 (k) 2 Barn. B. R. 357. (/) Riche's case, 3 Leon. 52 ; Dal. 100; but see Belfield v. Rous, 4 Leon. 198, and quaere. (m) Co. Litt. 33. «.; 2 Bac. Abr. 392 ; and see 1 Keb. 87. (n) Dr. and Stud. 140. Hargr. Co. Litt. 32, b. n. (4,) and see Spiller v. Andrews, LilL Ent. 188. 8 Mod. 25. Walker v. Nevill, 1 Leon. 56. Penrice v. Penrice, 2 Barnes, 191. (o) Hawes' case, Hctt. 141. If)) Hargr. Co. Litt. 32, b. 32, a. n. (5.) In Winch. 80, in a case where the lands were let for years rendering rent, it is said, this doth save to the tenant damages ; but it is in all probability a mistike of the reporter. It is obvious that if the widow was dowable of the renr, she is as much entitled to damages for the detainer of that, as if she were dowable of the land. (y) 2 Vern. 404, OF DAMAGES IN DOWER. 1 U aside the recovery of dainaj:;t'.s, it was admitted Ijy tl>c Lord Keeper Ihtt the damages were carrieil tou lar hack; she having recovered the value Ironi the deatli of her hushand, whereas she ounhl to have had damages but from the time of debts paid and trusts performed, and the verdict wm set aside accordingly. The statute of Merton, in givinj:; damages, has left the ni' ■ ns- certainini; them to the court; and the usual practice is, utd- tn- ages are either a(huitted by the party, or ascertained by the jury who try the action, to grant a writ of inquiry ;(r) an«l if judgment is 8;ivcn for the demandant by default, confession, or any other way than by verdict, there must of necessity be a jury impannclled lo a5sess the dama!5es.(*) In these cases a writ of iiupiiry of damagis issuch, commanding the sheriff to inquire whether the husband died seised, and if lie did, what value the lands are by the yi-ar, and how long it is since the husliand died; and upon return of the inquisition, judg- ment is entered for the damages.^/) And upon damages bring ad- judged, they shall be recovered against the tenant to the writ in totOy notwithstanding there may have been several in receipt of , ,„ the profits successively since the death of *thc husband, and ^ "^ J not against every one for his time, as in cases of l)i8scisin,(f/) for the statute of Gloucester does not extend to this case. By the words of the statute, the damages are given from the death of the luisband to the day that the widow shall have recovered seisin bv judgment. But where a writ of incpiiry is awarded, it seems to be now established, contrary to the opinion of the court in l^enrice v. Penrice, 2 Barnes, 191, that the value shall be computed to the time of assessing the damages on the inquisition,(i') unless the demandant has been in pos- session any part of the time under the habere facias seisinarn, and then only to the time of seisin delivered. (w) The judgments for seisin and damages being distinct, the tenant may, if the latter be erroneous, re- lease the damagcs,(a') and the judgment ijiioadKhc land may be aflirmcd in a writ of error, and tlie jutigment for tiamagcs reversed;(y) and until the damages arc ascertained by the in(|uisilion, the juiigment docu not bind the land, so as to charge tlie heir if tiie tenant dies be- j. mnr^n ^ fore *thc damages are assessed, (z) for they are given in re- ^ -• spect of the tort in detaining ])ower, and actio personalis i/u.r oritur ex delicto moritur cum persona. So also, if the demandant die before the damages arc ascertained, the executor shall not havo them, for the damages arc no duly till they are ascertained; ami it makes no liitfer- cnce that the tenant had entered into a recognizance (under Id and 17 (r) Kent V. Kent, 2 Ham. '112. Hargr. Co. Litl. :tJ, b. n. (1.) anJ tt> 2J Towdc Jodg . 100. 101. pi. 22, 23. lb. 102, pi. 21. (s) 1 Kcb. 85, marg. (cites 3 E. 3. 23, b. pi. 13. Uowcr V. 73. 3 Cro. 667. 14 H. 7, 25, pi. 5,) and si'c Kast. Eiit. 238, a. b. (t) Kast. Kiiir. 23S, a, li. Dennis v. Dennis, 2 Sound. 331. («) See 1 Kil>. 80, man;. Uellielil v. Rowsc. Mo. S'l. N. Ucndl. l.W. Co. Lilt. 33, .i. (cites 1 Ko. Alir. O/il ) Brown v. Smith, Hull. .\. P. 117. (r) Dolison V. Dolison, Ca. t. Hardw. I 'J. 2 liarn. U. R. 180, 207; and •«« ihc Record in Spiller V. Aiidrtvvs, Lij. Ent. 180, incorrectly reported in 8 .Mod. 2.'». Tbjuoa «. Tbynnc, T. 1019, (cited Hurgr. Co. Lilt. 32, (,, n. (1.) (w) Walker v. Nevil, 1 Uon. 56. (x) Hullor v. Ayrc, 1 Lron. 92. (i/) Hargr. Co. Litt. 32, b. n. (4,) cites 22 E.4. 40, and mc 2 K«ym. 13s.'), arg. (:) Aleway v. Roberts, 1 Kcb. 85, 171, 610, 711. 1 Sid. ISS. 1 Lev. 3S. 2 N 2 142 PARK ON DOWER. Car. II. cap. 8,) to pay the damages and costs if the judgment were af- firmed, on bringing a writ of error.(a) No authority was given by the statute of Merton to superior courts, where it came by writ of error from those below, to give judgment for the value till the time of affirmance in their courts; but as this was a plain defect, the statute 16 and 17 Car. II. c. 8, sec. 3 and 4, was made in order to give them such power, (b) No damages can be recovered on a writ of right of Dower,(c) because damages can only be given for the detention of the possession; and in writs of right, where the right itself is disputed, no damages are given, because no wrong is done until the right is determined. (f/) So also r *'^in 1 where Dower was assigned in Chancery, on the writ De *- -' Doie assignandd, there *could be no damages: " for (says Coke) the words of the statute be, Et viduse per placitum reciiperave- rint,'^ ^c.{e) So if the heir or his feoffee assigns Dower, and the widow accepts thereof, she cannot afterwards claim any damages; because hav- ing accepted the Dower, which is the principal, she cannot after sue for damages, which are only accessory. (/") If damages are obtained upon a verdict in Dower, the statute of Glou- cester (6 Ed. I. c. 1, sec. 2,) gives the demandant costs; but if no dam- ages are given, the demandant, although she obtains judgment for her Dower, must pay her own costs. By the statute 16 and 17 Car. II. cap. 8, sec. 3 and 4,(5-) it was enact- ed, " that in writs of error to be brought upon any judgment in any writ of Dower, or in any action of ejectione firrnae, no execution shall be thereupon or thereby stayed, unless the plaintiff or plaintiffs in such writ of error(A) shall be bound unto the plaintiff in such writ of Dower, or action of ejectiune firmse, in such reasonable sum as the court to which such writ of error shall be directed shall think fit, with condition that if the judgment shall be affirmed in the said writ of error, or that the said writ of error be discontinued in default of the plaintiff or plain- r *311 1 tiffs therein, or that *the said plaintiff or plaintiffs be non- L J suited in such writ of error, that then the said plaintiff or plaintiffs shall pa}"" such costs, damages,(i) and sum and sums of money, as shall be awarded upon or after such judgment affirmed, discontinuance or nonsuit had. And to the end that the same sum and sums and dam- ages may be ascertained, it is further enacted, that the court wherein such execution ought to be granted, upon such affirmation, discontin- uance, or nonsuit, shall issue a writ to inquire as well of the mesne pro- fits,(^) as of the damages by any waste committed after the first judg- ment in Dower, or in ejectione firmx; and upon the return thereof. (a) Mordant v. Thorold, Carth. 13.3. 1 Salk. 252. 1 Show. 97. 3 Mod. 281. 3 Lev. 275. Rep. t. Holt, 305, and see 2 Bro. C. C. 629, 632, in Curtis v. Curtis. (6) Cd. t. Hardw. 50. (c) Co. Litt. 32, b. 1 Keb. 86. arg. (:}. .Shop. T. 28,3-.:. .Mcrivillc's case. \.i Co. 20. Gold.b. 14S, pi. 71. Anon. 3 I.eon. M. Crave v. Brougliton, Dul. I()7. ^S. C. lb. 62. 2 Koll. R. C9. 8. P. arg. (cites 15 Eliz. Paine's case.) This point was formerly iJoul>(eil : »pc '.I Lron. 60, and Stowel's case, I'low. 373, u. where the learned commentator says — " Note, reader, that in my opinion, if the husband levies a line wiili |iroclamati<>ns, and live year* pa»« after the proela- mations, the wife shall not be bound to live years after the death of the hu»band, but ii ai large, and not touched by the purview of the act of 4 H. 7, [c. 24.] For the purvietr «rma against those who had right at the time of the fine levied, or had future right after, upon a cause arising before ; to which future right wrong was done before the fine, or liy the fine, &.C. : but here, in case of dower, the title is accrued all alter th« fine ; ir. by ttie death of lh« husband, for till the deatii no title was consummate ; niul the other two point*, 3f. inlrrmar- riage and seisin of the Imsband, are not of any moment without the third, «o that all Um three points are but one cause after the line." — *' But," say* Cuko, in reply to the reasoning of Plowden, " allhouKh to the consummation of dower, three things are rr<|iii»ite, lh.it i« to say, marriage, seisin, and the death of the husiiand ; and althoueh nt the tune of the fine levied, her title was not consummate, that the law res|>ect< the fir»t and original cautr*. ic. marriage and seisin." 2 Co. 93. And in another place, he »ayi«, — ' .\nd the opinion of Plowden aforesaid is not held for law, as api)ear8 in K. 6. Dy. 72, and iu Uamport'a ra»«, in 5 El. 224. Dy. it appears it wa.i adjudj;ed to the contrary in 4 H. H, and now commoa experience, without conirudiclion, is against it." 10 Co. 49. (m) Shep. T. 28, (cites .\nnc Twist's case, .M. 18. Jac. C. B.) (n) 1 Prest. Conv. 229. (o) Fitzhugh's case, 3 l.con. 221. See aUo .\non. lb .'iO, and »sid, per Dyer J. that the bringing a writ of dower was the only way the wife could make her claim, for »hc coulJ not enter to avoid the line. {(,) Menvillc's case, 13 Co. 19. Moor. 639, S. C. cited by Cok«s <'. J. ■• rc»olTcd, fo> she had no means of reversal. S. C. Sav. 51. 3 Inst. 215. b. 2 Bulalr. 215. 144 PARK ON DOWER. man or reversioner can operate as a conveyance only, and not as a de- vestment or discontinuance. But the very terms of the [ *314 J ^^^jg exclude, rather than embrace, *the case of persons hav- incr executory titles, or future rights only, at the time of levying the fine; and as it would appear that there can be neither a necessity or a capa- city to devest that which is not vested, it may be safely assumed, that a title of Dower may be barred by non-claim on a fine, although levied by a person who had no seisin of the immediate freehold. The case, in- deed seems to be rather an illustration of, than an exception to the gen- eral rule above stated. If this view of the subject be correct, it is clear that Ann Twist's case,{q) which has been considered hostile to the mo- dern decisions on non-claim, does not in the least interfere with the principle of those decisions. In that case, as reported in Shepherd's Touchstone, it was held, that, " if one seised of land in fee marry a wile, and after make a lease of this land to A. for life, the remainder to B. in fee, and B. levies a fine with proclamations, and the husband dies, and the wife doth not make her claim, &c. within five years after the death of her husband, hereby she is barred of her Dower for ever, notwith- standing the estate for life in A.{r) It appears from a note in Bosanquet and Puller's *Re- [ '^^^^ J ports, (Vol. II. New Series, p. 37,) that Ann Twist's case was under the consideration of the judges, in the case of Rowe v. Pow- er there reported, and that the roll having been searched by direction of the judges, no judgment appeared to have been entered. The report- ers add that the learned author of the Touchstone was therefore proba- bly mistaken in supposing any judgment to have been given in that case, and Mr. Sugden, in his valuable notes to Gilbert on Uses,(5) has stated that Ann Twist's case was expressly over-ruled both in the case of Rowe and Power, and in that of Carhampton v. Carhampton.(/) The autho- rity of Twist's case, as a legal decision, must certainly fail in the absence of the judgment: it may be submitted, however, with the greatest de- ference, that for the reasons above mentioned, the principle of the case, as stated by Shepherd, is by no means inconsistent with the cases men- tioned by Mr. Sugden. It seems that a warranty is no bar in a writ of Dovver.(t^) Lord Coke remarks, that " there are some titles to which a warranty doth not ex- tend, as the title in case of discharge, condition upon mortgage, &c. mortmain, consent to ravisher, or the like; because for these no action r * 1 fi T lies in which there *can be voucher or rebutter, neither can t J a descent toll the entry in such cases; and they continue in such plight and possession as they were by their original creation; and they by no act can be displaced or divested out of their original essence. (7) Shep. T. 27. (r) The case is shortly stated in Hob. 265, under the name of Twisse v. Cotton, thus — « Tenant for life, the reversion in fee, of land whereof the demandant had title of dower, and brought a writ of dower against the tenant for life. Hanging the writ, [he] in the reversion levied a fine with proclamations of the reversion ; the tenant for life died, the five years ex- pired, and now the demandant brings a new writ of dower against the tenant in possession." (O P. 122, note. (0 Irish T. R. 567. (n) Arg. Roll. R. 307, in Holland and Lee, (cites 34 E. 3. Garranty, 72. 21 E. 4, 8,) and ib. S. P. admitted by counsel, but said, this seeais intended where the title of dower ac- crues after the warranty descended. OF SUITS FOR DOWER IN COURTS OP EQUITV. 115 Vide 34 E. III. Garranty 72. A collateral warranty shall not bar a title of Dower, for that continues the essence according to the original crea- tion, and yet for that an action is given. "(v) •ClIAPTKR XV. [ -317 j Of the REMEDiEs/or the recovehv of DOWER in courts o/eqcitt. It appears that so early as the reign of Klizahcth, courts of equity had assumed some kind of remedial jurisdiction on claims of Dower. In a case of Wild v. Wells,(«) (1583) a bill to have Dower set out, and for arrears, was entertained in Chancery; and it seems to have been consid- ered that that court mitrjit set out the Dower by commission, and aa order nisi was made accordinj^ly. From the very short notes of this case in the books, it is impossible to gather what the equity was founded on; unless, perhaps, upon the ground that the claim of arrears involved a species of account, arul tliat the court having thus obtained a jurisdictioa of the subject, would proceed to decree complete relief, upon an admission probably of the legal title. Unless this case may be considered to the contrary, the jurisdiction as to Dower in courts of equity does not appear^ until within a verv recent period, to have assumed any higher character than that of auxiliary; but at the present day these courts seem to be considered as possessing, to a great extent, a concurrent jurisdiction as to Dower with , •ojc i *courts of law. It may perhaps admit of doubt whether the ^ -' doctrine has not been carried higher than the reason of the case justifies. The earlier cases in which courts of equity have entertained bills re- lative to Dower, have proceeded upon the common equitable ground of paving the way to the establishment of a legal right, by I'urnishing a discovery of matters essential to the prosecution of that right; or putting out of the way impediments which might be set up, against conscience, to obstruct the success of the claimant; and this relief was gradually extended, probably upon the principle that when a court of c(juity has once obtained jurisdiction over the subject matter by reason of an equitable question, it will proceed to do complete justice between tho parties, and to give the whole relief to which they are entitled; subject, as to any (juestion which may arise of purely legal cognizance, to the result of a decision by the proper tribunal. Thus in Dolin v. Coltnian (1GSI),(/;) a wife joined with her hu.sband in a mortgage, and levied a line to the intent to bar her Dower; arid in consideration thereof, the husband agreed that the wife should have the equity of redemption; but he afterwards mortgaged the estate himself twice more. This settlement of the equity oi redenq)tion was adjudged fraudulent, as against the subsequent mortgagees, but in regard the wife in confulence thereof had levied the line, it was decreed that she sbouK! be restored to her title of Dower [as against the puisne mortgagees;] (v) 10 Co. 98, b. Co. Liu. 389, a. (n) 1 Dick. 3. Toth. 115, and sec Thomas v. Tlioma», Tolh. 163. (6) 1 Vern. 294. 146 PARK ON DOWER. r *'3i 1 " ^^^ whereas the mortgagees pressed that *the decree might L -^ only be, that she should enjoy her Dower, notwithstanding the fine; the court thought it unreasonable in this case to put the wife to her writ of Dower; because they might convey away the estate, and she not know against whom to bring her writ of Dower; and therefore decreed the Dower to her."(c) This decree seems to have proceeded on the admission by the mort- gagees of her right to Dower, and the probability of difficulty in the pro- secution of her right at law. But little reliance can be placed on the vague and unsatisfactory report in Vernon, and the case is inconsistent with itself, as it immediately before states that the husband and wife were both living. In Shute v. Shute(c?) and Wallis v. Everard(e) (1708), the court re- fused to entertain bills for Dower, because there was no impediment at law. In Moor v. Black(/) (1735), the plaintiff charged in her bill, that her husband's ancestor died seised of several estates, which upon his death descended, as to o?ie Tnoiety, upon her husband in fee, who died he- fore any ]jartition made, and that the defendants had got jjossession of all the title-deeds, whereby she was disabled from suing for her Dower at law, and therefore came into that court to have her Dower assigned. The defendants demurred, for that the plaintiff's right of Dower was a right merely at law, and triable by a jury; and that no impediment was suggested why she could not recover at law. r *'520 1 *^'^ arguing the demurrer it was insisted for the plaintiff, *- -' that she was proper to come into that court, both by rea- sons of the deeds being in the defendant's hands, without which she could not prove her title at law; and also for that the estate being in co- parcenary, and no partition made, the sheriff could, upon recovery in a writ of Dower, put her into possession but of a third of an undivided moiety; and that still recourse must be had to that court for a certainty, and to set out a part to her; the judgment in Dower not reducing it to more certainty than it was before, and that by bringing this bill the plaintiff had only done at first what she must have done at last. It was insisted on the other hand for the defendant, that though the plaintiff might be entitled to a discovery, yet she could not be so to have Dower assigned her; that being a title merely at law, and for a detainer of which damages were to be assessed by a jury; and that she was not entitled to the possession of the deeds, but that they belonged to the de- fendant. Lord Chancellor Talbot over-ruled the demurrer upon both points, saying, that there was no possibility for the plaintiff (as appeared to him) to recover without the assistance of the deeds; for the estate descending upon her husband in July, and he dying upon the 11th of March after, before any receipt of rent or partition made, she could not prove a seisin at law to entitle herself to Dower.(^) (c) 1 Vern. 295. (J) Pr. Ch. 111. (e) 3 Ch. Rep. 161. (/) Ca. t. Talb. 126. is) T^'s observation is inaccurate. An actual seisin is not necessary to a title of Dower. See p. 31 supra. It would be sufficient to prove the seisin of the ancestor, his death, and the heirship. OF SUITS FOR DOWER IN COURTS OF EQUITY. 147 "Secondly, That she lay under anulher difliculty, as her r •„ husband's estate was complicated, and that she must come *• J there for a partition; otherwise the consequence would Ikj that udtr judgment and execution she must, at the end of every six nionih-*, Ijc driven to her action airainst such as held jointly with her, and who re- ceived the profits, fur lier share, and also for her dainagfs for the de- tainer; which would he absurd and unreasonable. In the case of Dormer v. Fortescue (17M), upon a question of equi- table relief as to rents and profits, Lord Hardvvicke incidentally remarked, "So in the case of Dower, if a widow is entitled to Dower, and her claim is merely upon her legal title, but she cannot ascertain the lands out of which she is dowablc, this court will assist her to fmd out the lands, and the court will order her to proceed upon a particular part, and reserve the further consideration till after judgment, anil if her title of Dower is established, will give her profits." &c. He added, '* I will put this case; supj)ose a widow entitled to Dower of an estate, uj>on which a term for years was standing out, and she had her title of Dower out of the reversion of the term, and she comes into this court to have it removed out of the way, they will decree her an account of the rents and profits from the time of her title accrued, and will set the term as a satisfied one out of the way; but if that term had been out of the way, (md she had no need to come into this court, it icould have been utherwiscy^h) *In the subsequent case of Curtis v. Curlis(/) (177S), a . ,,..,,, , bill was filed setting forth a title of ])ower in the plaintiff, •- **' J and that notwithstanding, the defendantas heir at law and devisee of her husband had taken possession of the estates, and praying an account of one-third of the rents since the decease of the husband, and to be let into possession of one-third of the lands, and decreed to hold the same for life. The defendant insisted, by answer, that the plaintiff was never married to the deceased, and therefore that she was not dowable; and Lord Chancellor liathurst ortlered llu^ bill to be retained for twelve months, with liberty to the plaintilT to bring her action at law to try her right to Dower, and in case she should do so, the consideration of costs and further directions were reserved till the master should have made his report; but in case she should not proceed to trial, the bill, as far as it prayed relief as to Dower, was to stand dismissed. The plaintifT having obtained a verdict at law, anil an order at the Rolls (upon a hill of re- vivor and siqiplemcnt), that the former decree should be carrieil into execution, and the defendants having petitioned for a re-hearing, the cause was re-heard before Lord Alvanley upon a ipiestion as to the ac- count of rents and profits: and it was urged in argument by the counsel for the plaintifl', that tiie bill of revivor and supplement could not bo dis- missed without re-hearing the first decree, and they insisted Uiat "it never was suggested at tlie former hearing, that this bill for Dower was improper; because it was perfertly understood "to have been ^ ^^^^ , the settled practice of the court io grant commissions to ns- ^ * J sio-n Dower where no legal inij)ediiiii;nt has been proved; nor would it have been tried, but for the doul)t ujjou the marriage." Lord .Mvanlcy, in giving judgment, took occasion to observe that it was now a settled (A) 3 Alk. 130, 131. (i) » Bro. C. C. 620. 148 PARK ON DOWER. point that Dower is a mere legal demand, and that the widow's remedy is pynynd facie at law. But then the question comes, whether the widow cannot come either for a discovery of those facts which may enable her to proceed at law; and on an allegation of impediment thrown in her way in her proceedings at law,(>t) this court has not a right to assume a juris- diction to the extent of giving her relief for her Dower, and if the al- leged facts are not positively denied, to give her the full assistance of this court, she being in conscience as well as law entitled to her Dower. ^ 1 *Cases have been mentioned, to show that there must be L J some fraud to give this court a jurisdiction, and that in the simple case of a woman claiming her Dower, no such jurisdiction exists. Dormer v. Fortescue, is also brought to show that there must be either an infant concerned, or some particular circumstances in the case to en- title this court to proceed. Now it seems difficult to distinguish the two cases of the infant and the widow. The principle in the case of the infant is, that he is thought not conusant of his rights at law, sufficiently to enable him to proceed there, and therefore the court of equity will give him all the relief he could have had at law, and something more; for on a bill by an infant for an account, he will get the mesne profits, which would certainly be gone at law by the death of the party. I argue in the same manner for the widow. She comes here and says the law gives me Dower out of the estates of my husband, and the mesne profits from his death: I do not know how to proceed; for if there should turn out to be any mortgage or terms of years in my way, then I must pay the costs. The defendant has all the title deeds in his hands, and knows what the estates are; his conscience is afiected, and yet instead of putting me in possession of my rights, he turns me out of doors, and keeps al' the title deeds. Now I think this argument is a strong one, on the sub- ject of fraud and concealment on the part of the heir, in not informing the widow of all that is necessary to enable her to proceed safely at law. If then she comes here for a discovery of these matters which the heir withholds from her, she shall have her complete relief in this court. r *'^2«i 1 *^^ y°^ deny her right to Dower, the question must be tried •- -^ at law; but when the fact is ascertained, she shall have her relief here. The reasoning of Lord Alvanley in this case certainly puts the doctrine rather high; and would go to prove that in every case in which difficulty exists in proceeding at law, the court shall not only exercise its ancillary jurisdiction by removing the impediment, or furnishing the discovery, but shall proceed to give the relief itself which is the legitimate result (At) It does not appear from the report of Curtis and Curtis that there were any such alle- gations in the plaintiff's bill; on the contrary, the defendant's counsel are represented as stating that her bill did not suggest any impediment to her proceeding at law, and observing, that the demand being at law, the bill should have stated some ground (as a fraud or other impediment to her trying her title at law) for coming into a court of equity. It was, how- ever, staled at the bar by Mr. Lloyd, on the hearing of Mundy v. Mundy, that it appeared from the register's book that the bill charged that the defendant well knew that the plaintiff had not any of the title deeds or writings showing what interest her husband had in the es- tate, but that all such deeds and writings were in the defendant's own hands; that he pre- tended that her husband was only tenant for hfe ; and that there were mortgages and terms for years outstanding, which he would set up against her claim if she should proceed at law. Mr. Lloyd added, that the Master of the Rolls relied upon these charges, and stated that the bill would not have been proper without such allegation. 2 Ves. J. 124. OF SUITS FOR DOWER IN COURTS OP EQUITV. Hj;inent:(/*) so also, they will aid her with a discovery of the tille-(lceils;(.v) and the court will, it sccmuh, enforce such discovery au;aiiist a purchaser for valuable consideration without notirr. (/) *And a l)ill lies for the discovery of a tenant to the praecipe, ^ .ion i whereby to ground an action of Dower.(M) ^ J We have seen, that at law, the widow loses her daniat^es if the tenant dies after judu;nient, and before they are assessed, and also, that if she herself dies before the damages are ascertained, her pergonal representa- tive cannot claim them. But, in ecpiity, a dilFerent rule prevails; anil the court will decree an account of rents and |)rofits against the resjxrc- tive representatives of tlie several ])erst>tis who may have been in |>o»- scssion since the death of the husband, provided that at the time of the bill tiled, tlie legal right to damages was not gonc.(y) This, if I under- stand it rightly, is the result of what is said by Lord Alvanley, in Curtia V. Curtis. The expressions of that judge, however, as stated in the re- port, arc open to some observation, and may be rather calculated to mis- lead than to produce a sountl conclusion. lie is said to have observed, that "taking it for granted that the widow comiiii^ ofter the death of the heir, would not be entitled to her mesne profits, it by no nu-ans fol- lows, that when the wiilow is right in this court, but the heir happens to die before slie has fully established her right, she is not entitled to her mesne profits; for unquestionably, if the heir, instead of contesting the widow's right, had admitted it, she would have been entitled to her de- cree *for mesne profits, and his having thrown an imj)cdi- , ,ggj , ment in her way, shall not make the dillerence." It might *- -• be inferred from this, that if the widow neglected to file her bill in the lifetime of the heir, slic would not be entitled to a decree for mesne profits. The reasoning, however, on whicn it is founded, by no means bears out the proposition to this extent, for we have already seen that the widow's right to recover damages at law is not necessarily lost by the death or alienation of the heir, since, if she had not recovered judjr- nient against the heir during his life, she may bring her writ of Dower againsL his heir or alienee; and on judgment obtained on that writ, she will be entitled to damages for the whole time from her husband's dcatli. The only case in wliich damages are lost at law by the death of the heir, is whenhe dies after judgment, and before the damages are ..-d, and then his heir or alienee shall not be charged in dam... .ise they are not a lien on the land till ascertained, and the widovv r^nuol obtain a fresh judgment against them, because she has already recovered the thing demanded by the writ. Now, as an action at law for Dower scarcely^ver has been commenced, when a bill is filed in Chancery, but the parties are onlv sent to law by the court, to try an i!«sue upon some question affecting the title of Dower, it is ilillicull, if not impossible, to (,) IVr Lord Hnrdwicke. in Dornu-r v. TorlMCUc. 3 .\ik. i:«0; anJ LorJ RedcUk in D' \rcv V. I'.luko, "2 Scli. ami I-i'fi. ii'Jl- ,». . (s) See 2 liro C. C. G:n, in Curli* v. Curlin; anJ '^ -Vh- anJ Lofr. 391. in V .Vrcy x. Blake. „ ^, .. .. (/) Williams v. Lninlic, a lUo. C. C. COl. Hut m-c supra. (w) Kcmpe V. Risbie, Toih. 81. , i... nn Iv) CurUs V. Curtis, '2 Bro. C. C. f.OC ; Dormer v. Forlcscue, 3 Alk. 130. 152 PARK ON DOWER. find a reason why the bill should be filed in the lifetime of the heir, to entitle the widow to a decree for mesne profits. It has also been decided, that though the widow should die before she r *33'' 1 ^^^^ established her right to *Dower, equity will, in favour '- " -' of her personal representatives, decree an account of the rents and profits of the lands, of which she afterwards appeared dovvable.(z^) In a case of Lindsay v. Gibbons,(a') not reported. Lord Loughborough is said to have stated, that there were no cases that warranted giving in- terest on [arrears of ] Dower. It seems that courts of equity, following the analogy to damages, under the statute of Merton, will not entertain a bill for mesne profits, where the husband did not die seised: neither will they where the plaintiff is in possession, and consequently may have remedy at law.(y) But when the plaintiiT is in a situation to be entitled to mense profits, it appears that no limitation can be set up in equity to the recovery of arrears, for there being no limitation at law in assessing damages, the usual limita- tion of account to six years, by analogy to the statute of limitations, does not apply, (z) Where a widow comes into the Court of Chancery, for the single pur- pose of having her Dower set out, costs do not follow the suit, as of course. But separate questions of title often arise, which may be con- ducted vexatiously, and so as to be the subject of costs, (a) r *onq T *And, whcro the bill is for other purposes than the single L J object of obtaining an assignment, as for an account, and the dowress has made every attempt to settle, and has been vexatiously kept out of her Dower, without any just pretence, she will have costs.(6) [ *334 ] ^CHAPTER XVI. Of the situation of a dowress before and after assignment, and of the nature and qualities ofsEB. estate. The situation of a dowress after the death of her husband, and before assignment, is very peculiar. Although the title of Dower is consum- mate, the title of entry does not accrue until the ministerial act of as- signing to her a third part in certainty has been performed by some other person. In the mean time her situation is an Anomalous case in the law of England, standing upon its own peculiar circumstances, and neither borrowing nor affording any analogies. It is probably the only existing case in which a title, though complete, and unopposed by any adverse right of possession, does not confer on the person in whom it is vested, the right of reducing it into possession by entry. The situation {yA Wakefield v. Child, 8 July 1701, MS. (cited 1 Fonbl. on Eq. 23.) (a:) Cited 3 Bro. C. C. 495. {ij) Delver v. Hunter, Bunb. .57. (r) Oliver v. Richardson, 9 Ves. 222. (a) Lucas v. Calcraft, 1 Bro. C. C. I3'l ; 1 Ves. and Bea. 20. n. See Curtis v. Curtis, 2 Bro. C. C. 632. " I admit she has no costs, where the heir has thrown no difficulties in her way ; and if the heir admits the widow's case, he is safe."' (6) Worgan v. Ryder, 1 Ves. and Bea. 20. OF DOWER BEFORE ASSIGNMENT. 153 of a dowress has no resemblance to that of a person who hat become en- titled to a parlicuhir eslalc by way of remainder or sprin^m^ une; pho has no seisin in law, nor can she exercise any act of .jwi,. i^hip Ixlore assignment. (rt) *IIer title to be endowed is not of an undivided third of , the entirety, but of a third part in severalty, which third L ^^^ J part is unascertained till a.ssii;nmeiit; it bears no analogy therefore to the case of coparceners, or oilier persons becomin|^ entitled to undivided shares. The consideration of this subject is of practical importance, for althouf^h the title of Dower is consummated by the death of the husband, yet un- til actual assignment, that title all'ords no inipciliment to the validity of a recovery, (/>) nor is it to be. considered for any other purpose as an out- standing estate of freehold. ]Jut although a title of Dower is for most purposes nothing more than a right ol action, and consenueutly transferrable in no other mode than by release to the terre-tenant by way of extinguishment, yet it differs from all other mere rights of action in not being tljc result of any adverse jus possess 'onis acquired by the heir or feoffee, anil as a con»c(iuence the mere possession of the heir or feoll'ee can never become a bar to Uic title of the wife. , It will also occur to the student in black letter law, that from the ne- cessity for the concurrence on the part of other persons, a , •one ^ woman can never be "remitted to her Dower, previous to ^ -• actual assignment. If the wife hath the possession of the lands of which she is dowabic as guardian in socage, she shall be allowed the third part of the profits upon her account, in allowance of her Dower in the mean time, but she shall not endow herself of the third part of the lands or tenemeots, to hold as her freehold. (c) The entry of the wife upon her husband's ileath, without assignment, is by the books treated as an abatement, (^/) and a dowress in under a void assignment, may be treated as a disseisor.(^) The reason of the law in denying any right of entry in the wife, al- though her title is consummate, is obviously to be found in the injustice which would arise from permitting her to be her own judge of the par- ticular i):irccls which she sball have for her Dower, or, as ("hief Uaron Gilbert expresses it, to " carve for herself;'* while, on the other hand, the law, in favour of the widow, woulil not subject her to the inconve- nience of holding an undivided part in common, lor her Dower, where the nature of the property admitted of an endowment in severally. To avoid both these evils, it became necessary to suspend her right of en- (a) See Co. Litl. 34. b. 37. «.; Lilt. sic. 13 ; Perk. •cc. lIC. Hat it hn* txyn Mi, ihal a mere right of dower, witliout an axsiirnmiMil. will Rain iho wiilow n ■. . for by Magna Cluirla she inij;hl remain I'urty days ; ami if irron>ovB«|i|o forty iit .such seitloiiinit will not coiiiinunii'alc itself to ■ ncoiiu i.u«;ianu. Hex ». Inhabitants of I'uinswiek, Inirr Seltl. I'a. 7S3. (6) See 4 Bro. C. C. .'i-.'i, pir i-ord Loiiuhlmrouph. .\iul kI>c mutt enter, or the »*iMn be actually delivered to her i>y the .sjurill, Ix l.)re the frecludd will Ik* in hot. H«rgf. t*J. Litt. 37. a. n. (1.) Hut, she in.iy enter alter itci»in without ony return by Uic »t)«rUl. Palm. '-tiC). Hargr. Go. I.ilt. 37, <;. n. (X ) (c) Perk. sec. 451; and see Co. Litl. 38, b. 39. a, h. Id) Dal. 100 (f) I Burr. III. 2 o 3 154 PARK ON DOWER. try until the certainty of the parcels which she should hold in Dower was ascertained, either judicially, by the officer of the court, or by the agreement of the dowress and the terre-tenant. ^^07 1 *Jt would seem to follow, on principle, that where from L -^37 J ^j^g nature of the husband's tenancy, or for other reasons, the wife is only entitled to be endowed of an undivided share, her right of entry would accrue immediately upon her husband's death. In one case indeed, which is to be met with in the books, it was said by Roll, Justice, that " where a feme cannot be endowed per metas et bundas, she may enter without assignment." (/) In practice, how^ever, the author Ijelieves, the point is otherwise considered, upon the authority probably of the cases which have determined that a woman who has obtained judgment for her Dower, where, from the nature of the pro- perty, an assignment can confer no greater certainty than before, must nevertheless wait for an assignment before vshe can enter. Thus "if a woman bring a writ of Dower of six pound rent charge, and she hath judgment to recover the third part, albeit it be certain that she shall have forty shillings, yet she cannot distrain for forty shillings before the sheriff do deliver the same unto her. And so it is when the wife of one tenant in common demands a third part of a moiety, yet after judgment, she cannot enter until the sheriff deliver to her the third part, albeit the delivery of the sheriff shall reduce it to no more certainty than it was."(g') The reason, however, assigned by Lord Coke for these cases, is in terms confined to women who have brought actions for their Dow- r *<;qs 1 ^^' ^""^ turns upon the nature of *the writ; " for (he re- L -" marks,) whensoever the writ demands land, rent, or other things in certain, the demandant after judgment may enter or distrain before any seisin delivered to him by the sheriff upon a writ of habere facias seisinam. But in Dower, where the writ demandeth nothing in certain, there the demandant, after the judgment, cannot enter or distrain, until execution sued. "(A) Considering the inconsistency that would arise from holding the wife to be entitled to enter before, but not after judgment, the practice is probably right in treating her as having no right of entry in these cases before assignment, even if it be founded upon no better reason. It is also to be observed here, that where Dower has once been assign- ed in certainty to a woman, although she should be afterwards evicted by a person claiming under a prior title, yet if the estate of the person so claiming determines in her life-time, she will be entitled to enter without any new assignment. As, " if there be grandfather, father, and son, and the grandfather be seised of one acre of land in fee, and taketh a wife, and the father take a wife [and dieth,] and the grandfather dieth, and the son entereth and endoweth his mother, against whom the grandmother bringeth a writ of Dower, and recovereth, and hath execu- tion, and the grandmother dieth, in this case the mother may enter into the land recovered by the grandmother against her, and retain the same (/) Booth V. Lambert, Sty. 276. Ig) Co. Lilt. 34, b. (cites 45 E. 3, 26. 48 E. 3, 36. 22 Ass. 87. 39 E. 3, 12. 37 H. 6, 38. 39 H. 6, 25. 1 H. 5, 8, Brev. 199. 30 E. 3, 30. 21 E. 4, 3. 40 E. 3. 22.) (A) Co. Litt. 34, b.\ and see Perk. sec. 416, where the same point is stated to be law be- fore writ of dower brought. OF DOWEH BEFORE ASSIGNMENT. 155 land against the donee [son?] because she was endowed thereof hy him; and so shall it be if the mother had recovered •against hinj in a writ of J)ower."(i) Another reason is ^iv^;n hy LonI ^ *"^*^^ ^ Coke, namely, that the graiulniolhcr had in the land '< an c-ilate for term of her life, aiul the i;stalc for the lift- of tlic grandmother is icuscr in the eye of law, as to her [the mother,] than her own life;"(it) and conM- quently she had a reversion. So also if, after jiiiigment in Dov/er, the sherifl" offer to give the de- mandant seisin of her third part, showing in certain the parcels, although she refuse to receive it, yet she may enter at any time after, U-cauK the certainty appears. Ikit siie shall not have an alian habere facias seisina7n.{l) As soon as Dower has been assigned lo the widow by the sheriff, or by the owner of the land, and she has executed it i)y entry, she becomes seised of the immediate freehold, (;/i) either of the particular lands set out in Dower, if assigneil hy metes and bounds, or of an undivided third part of the entirety, if assigned in common. All the incidents of a free- hold tenure conse(|uenlly attach upon her tenancy, and for all purposes of title in which the concurrence of tiic freeholder is reipiisile, or the existence of a particular 'estate of freehold is material to the , .o.^ deduction, her tenancy, to the extent of the lands assigned, ' J must he taken into consideration accordingly. She must therefore join in making a tenant to the prrecipe, for the purpose of suffering a common recovery, or otherwise the recovery will be void for her third part; and every real adverse action must be brought against her, as well as the jierson who has the freehold in the remaining lands or undivided parts, if the entirety is sought to be recovered. As the owner of a vested particular estate, she is also capable of a release in enlargement of her estate, from any person competent in point of title and privitv to make that release; and siic is of course competent to alien her own interest lo a stranger by any of the modes of conveyance available for transferring an estate of freehold. Although in point of tenure, a dowrcss holils of the heir, yet, in point of title, she is in of the lands assigned to her by her husband, and not by the person making the assignment. (n) AJ- though her right of entry is sitspciidvd till assignment made, her estate does not take its effect out of the ownershij) of the party assigning, but it is considered as a continuation of the estate of the husband, and al- though the heir entereil, and had an actual seisin, between the death of the husband and tlie assignment of Dower, yet that intervejiing seisin does not disturb the continuity of the wife's title, for,* as soon as her Dower is assigned, the law supposes her in by relation from the death of her husband, *and does away all mesne seisin, or as Coke ex- , , . , presses it, " the law adjudgelh tio mesne seisin between the '■ •• husband and the wife."(o) And by reason of this relation lo the estate (/) Perk. sec. 316 fcitrs 8 E. 3, 293.) \k) Co. Liu. 31, //."(cites 8 E. 3, lit. As*. 393, 13 K. U. L)ow. .'.:>. •.•-• E. 3,5. 8 E. 3. 3. 7 II. 6, 4.) Co. Liu. \'i, a. (cites 8 E. 2. Am. 393. 45 E. 3. 13.) (/) Dy. 278, b. (m) (io. Litt. 31. a. Ami of some things which are entire, and cannot I* di»iJ«J. although she .-.hall he cniloweJ of a third part of the profit* only, )ft ah* ahall lu»c i* «• i'*^- hold of llio third part; as of a null. (Jill'. Dow. 37 1,397. (;i) 3(5 H. G, Dow. 30; Co. J-iU. 211. a-, tJilb. l"»c». 35G. 395. (c) Co. Litt. 211. a. 156 PARK ON DOWER. of her husband, it is (as Mr. Watkins remarks,)(/)) that a remainder limited on an estate in Dower (as where the heir endows his mother, and at the same time, limits a remainder over to another,) is void: for as the particular estate, and the remainders limited thereon must form together but one estate, the remainder limited on an estate in Dower cannot be good; as the estate in Dower arises from, and has relation to that of the husband, and reference to his death; and the remainder pro- ceeds from the heir, and arises from the grant made by him; so that such heterogeneous portions can never form one estate. Another con- sequence of the wife's being in by her husband, and not by the heir, is, that an assignment of Dower by the heir is no consideration for any thing moving from the wife, and therefore if the heir assigns Dower unto his mother in exchange for another acre of land, it is said to be a void exchange.((^) But although for most purposes, a dowress is in by her husband, yet a contrariety of opinion prevails in the old books whether she is in «in \}ciQ per ox the post ; namely, by force of the marriage agreement (in which case only she would, strictly speaking, appear to be in by the husband,) or by the general law of the kingdom. All the authorities r *142 1 ^^^ agreed that *tenant by the curtesy is in in the post;{r) '- -* and some of them place tenant in Dower on the same foot- ing. (.s) The majority of the old books, however, treat her as claiming by the marriage agreement,(^) a doctrine which was undoubtedly true, as applied to Dower ex assensu patris, and ad ostium ecclesise. The point seems to have been put upon its right ground by Serjeant Nudi- gate, in a case in Brooke, (w) where he said the estate of tenant in Dower is made by the law, notwithstanding that she is adjudged in by the baron, for yet this is by the law, and whether the baron will or not. And in the same case, Brooke, J. expressly took the distinction between tenant in Dower by the common law, and tenant in Dower ex assensu patris, and ad ostium ecclesise, observing, that the former should not be bound by uses [trusts] but the latter should, for they were in by the feoffee, while the other was in in the/jer by the baron, and yet by the law, and without the act of the baron. Some observations have already been made on this subject in another part of this work.(i») It remains only to be observed here that it is stated by Coke that " a tenancy in Dower by assignment of the heir doth work a degree, because she is in by her husband; but assignment of Dower by a disseisor worketh no degree, but is in ihQpost.^'iiv) r ^040 ■] *When, as in former times, an actual assignment of one ^ ^ third of the land m Dower was every day's occurrence, the consideration of the effect of such assignment upon the seisin as govern- ing the descent, was often of vital importance to the deduction of titles, since such assignment did not merely turn the estate in the one third into a reversion, but in consequence of the rule that the dowress was in (/>) Walk, on Desc. 66, note; and see Finch's Law, 13. {(j) Perk. sec. 272. (r) Gilb. Uses, 11, 171, 172 ; (Jo. Litt. 30. b. note (7.) U) Ibid. 171; Hob. 27; 1 Co. 122 ; Bro. Feoff, al uses, pi. 40. '{,t) Ibid. 11, 172; Hard. 469; 7 Co. 73 ; Co. Litt. Hargr. 30, b. note (7.) 239, a. (m) Bro. Abr. Feoff, al uses, pi. 10 ; and see 1 Leon. 61. {v) Supra, p. 102, (w) Co. Litt. 239, a. OF DOWER AFTKK ASSIGNMKNT. 157 from her baron, and not Ijy him who endowed her, the assignment had the eflfect of devesting, by rehitiun, all mesne seisin in the one third wliioh had attached between the death of the baron and the tiuie ol lli«- assignment, (a*) Hence the one third in Dower would devolve to ll»c person who at the death of the dowress should be the heir of ilie baron, witliout regard to mesne seisins, while the other rcmaininj^ two thirds would descend to the heirs of the person who successively acquired a seisin, governed by the rules of descent as to estates in postsession. The old law books abound with cases on this head, and they uniformly cstab* lish the doctrine that the estate of the dowress, when assigned, takes efiect by relation to the seisin of the husband. (y) An actual assign' of land in Dower so rarely happens at the present day, that the attc. of the conveyancer is scarcely ever directed to this point The cou- sequenccs of the law, however, must still take tlfect where the facts do occur to call them into action. *In point of tenure, a dowress holds of the heir, or {Mrrson . ,„^ j ^ who has the reversion in the lands assigned to her, notwith- '■ standing she is in by her husband, and not by the heir.(r) This point is said to originate in the principles of the feudal system, according to wliich, as a woman was incapable of performing her jjrojiortion ol the service!, a tenure was created in the dowress, as to her third, to hold of the heir, immediately from the death of the ancestor; " and tiie reason (says Gilbert) why the law created this as a tenure was that the heir might be obliged to do the service for it during the time of its contin- uance, (^/) as he was obliged to do for all lands which he had given out in tenure, as well as those he held in demesne; and had there been no tenure, it had been cut oil' from tlie manor during the life of the wife, when the heir was a tenant and no lord of the nianor."(/») The assignment of Dower then was, for purposes of tenure, a species of subinfeudation, and this tenure continued after the statute of Quia empiores, since the heir does not part with the fce.(c) And although the dowress could not, by reason of her incapacity, be contributory to the heir for the ^military services, yet if he , .^^^ •, holds over by rent, she is attendant upon him by the rate and proportion of the rent which tiie land a.ssigned unto her should bear.(^/) As if there be lord and tenant by fealty and twelve pence rent, the tenant takes a wife, and dies, and his wife is endowed ol the third part of the tenancy by the heir of the husband, she shall be attend- ant unto him for four pence. (e) And if a woman is endowed of a manor, she shall pay all services to the heir as he pays over, (/j (x^ Bro. Desc. pi. 19, (cites 19 E. 2.) Bro. Dow. pi. S7. .- » n (y) See Hro. Descent, pi. 19, 87. 8 Ass. fi. Vin. Abr. Dower (G. '-'.) 3 Leon. I5«. 8 Co. 40. Co. Liu. 15, (I. Gilt). I'en. by Walkins, 27. (i) Perk. sec. VZX. Y. N. B. 7. F. (a) See Fitzli. N. B. 15'J (A,) where it is saiil, " if the wile !«• t.n.ni in Jowcr " •"? land, she shall not be distn.ined to do .suit for that luiid which .ho holdcth in dowrr. it the heir have sutlicient land in the same county to bo distrained lor the miuc. Ami it »"• f* distrained, then she shall have a writ pro rxonerulione lectt ad curiam. Ac- fe«« U»« form of the writ there. (6) Gilb. Dow. 337, :}(il. (c) Ibid. 357. Id) Perk. sec. 424. Co. Litt. 31, o.n. (2.) 241, n. 1 H. 4 1. •»• (e) Perk. sec. 430, and sec sec. 42'). (/) Plowd. v^u. 5*0. 158 PARK ON DOWER. If the render be of an entire thing which cannot be apportioned, as of a horse, she shall be attendant unto the heir in rendering unto him a horse every third year; but if the heir holds by the service of a horse, •price forty shillings, then she shall be attendant unto the heir for thir- teen shillings and four-pence. (^) But it has been said that the heir cannot distrain for her proportion of the rent, (/i) If the heir grant the reversion of the lands assigned in Dower unto a stranger, the tenant in Dower shall be attendant unto the grantee;f/) and if the husband had been disseised of the tenancy, and, after his death, the disseisor assigns Dower to the wife, in that case she shall be attend- ant unto the disseisor. (A") P ^o^/j j *Bat the attendancy of the wife is only in respect of the '- -■ charge over, and therefore if the lord release the services unto the heir, the wife shall not be attendant for any rent after the re- lease. (/) And if there be no heir, or issue in tail, and the lord or donor enter for default of heirs or issue, the widow shall hold by the third part of the services of such lord or donor.(77^) But if the lord or donor determines the estate of the husband by his own act, as by purchase, she shall not render any services to him.(?'i) The wife, when endowed of lands of which there is any existing lease for years, becomes the reversioner, and is entitled to the rent, or, as the case may be, a proportion of it.(o) If she is endowed only of part of the lands comprised in the lease, there will be an apportionment in law of the rent, and she may distrain for her part. So if she is endowed of the third part of a rent service of 3/., she shall distrain for 20^., and the heir shall distrain for the other two parts of the rent. (/>) r *'^47 1 ^^^ from the nature of her title it has been doubted whe- *- -■ ther a dowress can enter upon a lessee *for years for condi- tion broken. In Gamock v. ClifF,(^) the condition was that if the lessee, his executors or administrators, should do any voluntary waste, the de- mise should be void and accounted none in law; and the wife of the re- versioner, who was endowed of the lands demised, entered for waste done. It was moved if tenant in Dower, and so in by the law, not by the party, and so not privy, nor as assignee, could enter for the condi- tion broken. The court was clearly of opinion that the words of the condition being Quando diniissio predict, erit vacua, &c. and no clause of re-entry being reserved, so that privity was not requisite, the dow- ress might take advantnge of the condition. And they cited the year books 11 11. 17, and 21 H. 7, 12, where the words of a lease were that upon the not going to Rome that the lease should cease, it was holden that the grantee of the reversion by the common law should take advan- ce-) Perk. sec. 434. (A) 1 H. 4, 4, a. per Cokaine. (0 Perk. sec. 427, (cites H. 32 E. 3. Dow. 131.) Bract. 317. (k) Perk. sec. 426, (cites 12 Ass. pi. 20,) and see the continuation of the section for the remedy of the disseisee in that case, and the mode in which the attendancy may be restored to him. (i) Perk. sec. 430. (cites H. 3 E. 3. 9.) {in) 7 Co. 73. Co. Litt. 241, a. Hughes' Writs, 144. See Plow. Qu. 49. (n) Bro. Tenures, pi. 33, 82. Extingiiishm. 31. Hughes' Writs, 144, 145. (o) 1 Roll. Abr. 678. Winch, 80. Cro. Eliz. 564. Anon. Ow, 32. ( p) Bro. Avowry, pi. 139. (g) 1 Leon. 61. OF DOWER AFTER ASSIGNMENT. 159 tagc of such a condition; contrary where the condition wm conceived in words of re-entry. As a woman who is endowed of a manor in dominua pro trmpwt, she, like any other person haviiij; a jjarticular estate, niav i^rani . and if such copies pursue tl»e custom, they will he hiiidinn upon i;. sons entitled to the inheritance; for the c(»pyholder is in by the cusluin and does not derive his estate out of the lurfl's estate' only. (r) •It is said hy Fil/.herl)ert that if a tenant of the manor .. , whereof she is endowed dies without heirs, she shall have a ^ '*° J writ of escheat,(.9) On the contrary it is stated by Perkins, that, «« if there be lord and tenant by fealty and twelve pence rent, and the lord take a wife,and dieth, and his wife is endowed of the third jiarl of the rent, and the tenant dieth without heir, so as the tenancy doth escheat, in this case the wife shall not !)e endowed of the tenancy, notwithstanding that it come in lieu of the seij:;nory; because it was not in the po-isession and seisin of the husband; but she shall retain the rent which was a^i^ncd unto her in Dower as a rent-seek, and shall distrain of conimon ri^ht.(/} These pro|)ositions are probably reconcileable. The observation of Fitzherbert that a tenant in Dower of the seignory shall have a writ ofc** cheat, assumes that she is endowed of the entire scignory, ywa seignory, and being dominus pro tempore^ must, like any other tenant for life, have those rights and remedies which are incident to the enjoyment of the seignory. The case stated by Perkins merely supposes the wife to he endowed of the third part of the rent as parcel of the seignttry, and as a substantive hereditament, while the seignory itself remains in the heir.(?0 It may, however, be doubted whether the law is correctly stated in saying that the rent shall continue as a rent-seek, , ^^ , since that rent is determined "by way of collateral limitation ^ J and there does not seem any |)retenccto charge the heir claiming by es- cheat with a rent issuing out of the tenancy. (y) It has been held that if a feme is enilowed of a third part of a manor to which franchises are appemlant, she shall not have the third part of the franchises, lor these are not divisible: otherwise if she has the whole manor in Dovver.(?f^) If a woman is endowed of a manor, eo nttmine, to which common is appendant, she shall have common aj)pendant to her third part; but it is said that if she is endowed of two acres of lanil, parcel of the manor, in allowance of all the manor, she shall not have common appendant unto these two acres; for during the time llii-y are in |)ossession of tlic wo- man they are not parcel of the nuinor, and the common is appendant unto the 7nanor.{x) fr) 4 Co. 23. Co. Litt. 58, b. But she must l)0 endowed »i)ecifically of iho iD«oor.naa»> ing it. Brook's case, Gouldsb. 37. (s) Fitzli. N. H. Ill, (M.) (0 Perk. sec. 323, (cites i:. 33 E. 3. 137.) .... (h) Aii.l sec Hrooke's rase, (Joui.lsl). 37. that in order to enable adowVM to glBBt CopiM she must lie endowed specifically of the manor, naming it. ((•) '"^ec p. lt>3, suiuii. (to) Iko. Dow. pi. 10"-, but see Cro. Joe. fi'.Ml, rril. ( r) Perk. sec. 311. It seems that u woman shall have a writ of Dower of w J- ant or appurtenant to the land which slie hold* in Dower if .he m deforced !->. Uses 371. And such appendants need not be siHicitically demanded in ll»e *»... ... -..uh 160 PARE ON DOWER. When a rent is granted to a widow out of lands of which she is dow- able, in lieu of her Dower, the law construes this to be a rent-charge, and she may distrain of common right, (y) *T?o 1 *W'e have already seen that a woman entitled to Dower L -• takes subject to all incumbrances and charges created by the husband previous to the marriage. And as to such of these charges as are in their nature redeemable; her interest in the land confers on her the right of exercising the privilege of redemption. This point is par- ticularly applicable to mortgages for years, — for as to mortgages in fee, the question cannot arise, a woman not being dowable of a mere equita- ble estate, as we have already seen, (2) It is her legal interest in the re- version expectant upon the mortgage term, which, in this instance, car- ries with it, according to the known rules of courts of equity, an equivalent interest in the equity of redemption, and the consequent right of discharg- ing the incumbrance, or enjoying subject to that incumbrance, upon the same footing as any other tenant for life. Thus in Palmes v, Danby(a) (which was the case of a mortgage for years, though that fact is not stated in the report)(6) one question was whether a dowress had a right to redeem. And the Lord Keeper declared his opinion to be that she had, paying her proportion of the mortgage money, and to hold over for the rest; and he distinguished it from Lady Radnor's case, because there it was a satisfied term, and the husband (he observed) had a power to bar her by assigning it over; but here it was only a mortgage, and against the heir. r *Qp;i 1 Where the wife has joined in a fine, on a mortgage *for L ^ years made by the husband subsequent to the marriage, as she continues dowable of the reversion, (c) (unless indeed the uses of the fine were declared, subject to the mortgage, so as to prevent Dower), she is in the same situation as if the mortgage had been made before marriage, and has the same right of redemption. But where the mortgage is in fee, the fine operates as an absolute ex- tinguishment ^of her title of Dower, for no new title arises by reason of any legal reversion; and she can no more redeem the mortgage in that case, than if it had been made before marriage. It seem.s, however, even in this case, that a wife may be let into her Dower in equity, if she is included by name in the proviso for redemption, and the transaction does not afford evidence to a court of equity of an intention to settle the equity of redemption upon her. The case from which this proposition is drawn has been already stated. (rf) A dowress, like an heir or devisee, has of course a right to have the personal estate of her husband, as far as it will go, applied in discharge of mortgages, and other debts contracted by the husband, which are charges upon the land which she holds in Dower. And even where the personal estate is insufficient to discharge the debt, it would seem that in some cases, if not in all, she has the privilege of having the lands which remain in the heir charged therewith, in exoneration of the land she claims the land to which they are appendant, but are included in the land eumpertinentiii. Arg. Pruetl v. Drake. Cro. Car. .301. ^ {y) Noy, 155. Keilw. 104, a. Perk. sec. 323. (z) See p. 137, supra. (a) Pr. Ch. 137. (6) Per Sir J. Jekyllin Banks v. Sutton, 2 P. W. 716. (c) See p. 196, supra. (d) See p. 208, supra. OF DOWER AFTER ASSIGNMENT. ICl assip;necl *to her in Do\ver.(e) Thus if the husband before , »__ marriaf^e becomes indebted to the crown, and afterwards his ^ *' J wife is endowed, and the sberill'distrains on her Uower for the husband's debt, she may have a writ direct(,'d to the sheriff, commanding that he do not distraii\ the wife for the kini;'s debt; and she may have iurh writ out of the Chancery directed to the TnMsurer and Harons of the Kx- chcquer, comniaiulintf them that tliey in(|uire thereof, and if they tind tlic same, tbat tliey surcease and discliar^e tbe wife, with a proviso in the writ, Provided thai those debts be levied upon the executor or heir of the aforesaid ./?., and upon the tenants of the lands which were hity and. which of right ought to be charged therewith^ as is just . There is anoliicr form of writ in tbe rcj^ister for tenant in Dower, willi iJm.'SC words in the end of the writ. Yet so long as the heirs and executors of the test anient of him the said ^'2. have nut sujjicirnt distress to render to us those debts, ikc.{f) It has been thoutrbt that the wife shouhl not in any case be di.ftraincd for the kino;'s debt, at whatever time contracted ;(^) and the opinion was probably ^founded on the j2;eneral terms of the common writ, , mnen -i properly used wlicre tlie debt was contracted subse(/uent to I- -• the marriage, and whicii is as follows: — The King to the Shcr/JJ] i)-c. — JVhercas according to the law and cnsto/n (four rcahn (f England, women ouf^ht not to be distrained to pay the debts of their husbands in the lands and tenements which they hold in IJotvcr of the gift of their husbands, or which arc of their own inheritance, or ivhich they purchased to themselves, and you dis- train B. ivho was the wife of A. in her lands and tenements which are holden in Dower of the gift of the aforesaid A., and which were also of the inheritance rf her the said Ji. as wc have received information from her cotnplaint: JVc commmul yini, that you do not cause her the said Ji. to be distrained in her lands and tenements tchich are liolden in Dower, or which are of her own pntpcr inheritance, or of the pur- chase of her the said D. to pay the debt of the said A. some lime her husband, against the law and custom aforesaid; and the distress which, ^c. cause to be delivered to her, ^c. fHtness, 4"C-(''0 Chief liaron Gilbert, after adverting to the language of the different writs, ])uls the point upon its true ground, when he observes, that " the true distinction of these cases is, that if the debt to liie King be subse- quent *to the marriage, then the wife's Dower being a con- . .^^^ , tract for infcudation, at the very lime of the marriage, and l- which binds the lands, the assignment of Dower over-reaches iIjc charges (e) " If the husband's goods be not sufi'iricnt for piiymrnl of hi« icUt, the heir muat Jw- chargc Dower of the burden, &c. for he i- tlu- widovv'H warrant of hrr Dower, and ought to follow for her county court, court Icet, «nd hundred, d c. Uiat nho may •«• to her houaw. aoJ nurture other children." Woman's Lawyer. 16aa, p. v;89 (cite, liracton). (/•) F. N. 13. 150. (Q). 46. (G). tJilb. r»es. 407— ll-;. ,. . . . , I'o-) Do^i the very name, doth import a freedom ; for the law doth Bi»c hrr Iherrwith ratny freedoms, 1-cundum consuHudiucm rrjrni mul.rrr* v„l„^. Ac '[^'•<"t ^"< V'"''*- -V .'.'-. ■ eiis &c And tenant in Dower shall not be distramcd lor the dibt duo to the kin^- Ij ihe hu«band in his lile-tinio in the lands which nho held m Dower. And other pntdrRc^ ah* hath, of all which Ockham yiehls this reason. " Ih,i.jus />'";'■'"•;;; '''",'' ^^'^'Ta^.^.'^'^I est." Co. Litt. :31, a. (cites d. H H. 3. n. 17. Kei;.8t. 1 1-', HJ. Ockham. f. 40). »mi see 2 Eq. Ab. 382, n. (A) F. N. 13. 150, (Q). Vol. XL-3 P 1€2 PARK ON DOWER. by debt of the King; for if the husband could not alien, during the co- verture, so as to defeat the wife's infeudation, he could not make any- other charges that would impeach it; and therefore, the wife there may have a general prohibition, since the King's debt does not affect the lands; but if the King's debt was before the marriage, then the contract for infeudation was subject to the burthen of the King's debt; and there- fore, there she can only have a special prohibition, with an ita quod that there are lands in the hands of the heir, or chattels in the hands of the executor, to answer the King's debts; for if there be not, then the King may levy the whole debt upon the dowress, and she must come upon the feoffees of her husband, who are equally liable to contribution; for the husband, by subsequent alienation, cannot put such a disadvantage upon 'the crown, that has given him credit, as to force the crown to bring in every alienee in order to be paid by them; but the King has a right to seise the lands in whosesoever hands he finds them, if such person comes in subsequent to such charges. "(?) If the husband sows the ground, and dies, and the heir assigns the land sown to the wife for her Dower, she shall have the corn, and not ^„f.^ -, the executors of the *husband.(/t^) This is an instance of [ 355 J ^j^g peculiar favor shown to the tenant in Dower above any other tenant for life, who are never put into possession of lands which are sown. It was owing to this reason, that at the common law a tenant in Dower could not devise corn which she had sown, nor did it go to her execu- tors, but became the property of the person in reversion; but now, by the statute of Merton, 20 Hen. III. c. 2, the representatives of a dowress, like those of any other tenant for life, will be entitled to emblements, and she may devise the emblements. (/) And if tenant in Dower sows the land, and takes baron, who makes his executor, and dies, before se- verance of the corn, the feme shall have the crop, and not the executor of the baron. Otherwise, if the baron sows the land, and dies before se- verance; there the executor shall have the emblements; and the reason is said to be, that he who did the labour and costs of the emblements shall have them.(m) " If two tenants in common be of land in fee, and on6 of them taketh a wife, and dieth, and his wife is endowed, and she and the other tenant in common sow the land, and afterward she maketh her executors and dieth, the corn not being severed, her executors shall have the corn in common with him who held in common with the tenant in Dower."(;z) ^ *If a dowress leases the land which she has in Dower for [ 356 J yggjj,g^ j^i^^j ^Ijgg^ j-jgj, executors shall have the rent which was in arrear at her death, and not the heir, for he is a stranger to the lease, and by her death the lease is void.(o) If the wife be endowed of lands, of which the husband was tenant in common, she must stock the land proportionally with the other tenants in common ;(/?) and it is apprehended she must contribute towards the (?) Gilb. Dow. 411. ik) 2 Inst. 81. Fisher v. Forbes, 9 Vin. 373, pi. 82 ; 2 Eq. Ab. 392 ; Dy. 316. a. (/) See 2 Inst. 81 ; Keilw. 125 ; 2 Danv. 766, pi. 27; Perk. sec. 522 ; Co. Litt. 55, b. n. (3.) Bro. Emblements, pi. 22 (cites Fitzh. Devise. 25). (m) Bro. Emblem, pi. 26 (cites Lib. Fundamenti Legum, f. 72). \n) Perk. sec. 523. (o) Bro. Rents, pi. 16; Bro. Leases, pi. 19. \p) Gilb. Dow. 397. OF DOWEn AFTER ASSIGNMENT 163 repairs. (<7) But wliotlier tlio reversioner can maintain a hill in equity to cot7ipei a (lowress who h:i.s hud hnuljj specifically assigned to her, to repair, is probably iloublfiil.(r) It seems too, that a woman who is endowed of the third part of the profits of an ofticc, shall contribiitc a ihird j)arl of the charge of the oflicc; as in the case of a bailiwick. (,v) We have already seen that she must contribute to rent »cr\-ire) Hut it may be presumed, that the statute G Ann. cap. 31, sect. 6, excmi)tinga///;eMon* from actions for accidental fire in any house, except in the case of .special agreements between landlords and tenants, would be construed to extend to a tenant in Dower. If tenant in Dower cut down timber-trees, they are the property of the heir or reversioner, and he may take them;(.r) but if a house falls down per vim voili, in the time of tenant in Dower, she has a .sjjecial property in the timber to rebuild the like house for her habitation, and if .she fells a tree for reparation, she has a special proj)erty to that purj)o»c in it, but she cannot give or sell the tree so felled. (y) *So also if she dig unopened mines, it will be waste; but , •350 "| she may woik mines or coal-j)its which were opened in the ^ husband's time.(z) But if tenant in Dower takes husband, who commits waste and dies, the feme shall not be punishable for this.(r/) But she shall answer for waste done by a stranger, for he in the re- version cannot have any remedy but against the tenant, and the tenant has remedy over against the wrong doer, and shall recover all in dam- ages against him, and by this means the loss shall light upon the wrong {n) Of the writ • De rrparntionp faricndn,' l>clwccn tenanU in common, Ac. 8«« KiUh. N. U. ~'Jo; and sec I Voni. liy luiilliliy, -IK. n. ()•) III Wood V. Gayiion, .^ml>l. :J'J(>, a l«ill to com|>«rM«d«nt. Hut it seems tliat in takinc; accounts, a tenant for lifo. ihoutfli witliout imix-actmicnl of «»»(« may lie charged with sums for the repairs of hoUBca on tlic c«Utc. •**«« lUrlcnche ». Pow- let,''2 Atk. :{s:j. (,,) IVrk. 8ec. :U2. (0 P- 345. •uprt. (m) Hui^hes' Writs, 173 (cites M. IT. K. 3. 13.) Iv) Anon. Ow. :{(;. (w) <^'o. Litl. 67, a. n. (1.) (x) Com. Die Uicns. H.; Al. SI; 4 Co. 62.6. \y) 1 1 Co. 82 ; Cro. El. 78t ; .-) Co. 13. A.; and .cc « P. U . 212. for qOilificaUon. (r) (Jill). Dow. :59l, 1 taunt. Ill; and see p. 117. 25'J. »upra. (a) 15 H. 3. I'ilzh. Waste. 133. Hut contra xaid to U> held in Atkini t. (flortr, M8. note by Serjeant Hill in 'Z-i, Vui. Abr.41G, Line. Inn Library. 164 PARK ON DOWER. doer. But if the waste is done by the enemies of the King, the tenant shall not be answerable, for she has no remedy over against them. (6) It is said that if a woman be endowed of a manor, and a copyholder thereof commits waste, an action of waste lies against the tenant in Dower, (c) The legal remedy against a dowress committing waste, is either by an action of waste, properly so called, or an action on the case in the nature of waste.(c^) Even before the statute of Gloucester, an action lay by the heir against ^ the tenant in Dower at common *law, for committing L '^^'^ J waste ;(e) and if the heir was apprehensive that the dow- ress intended to commit waste, he might, before any waste done, have a prohibition directed to the sheriff that he should not permit her to do waste. (/) And she was punishable by attachment thereupon, if after that she did waste. (^) But if the heir granted over the reversion, his assignee had no remedy for waste done by the tenant in Dower at common law, by reason that the privity was destroyed, but this was helped by the statute of Glou- cester, 6 E. I. cap. 5.{h) And in respect of the privity between the heir and the tenant in Dower, the heir shall bring his action of waste against her notwithstand- ing she grants over her estate, and as well for waste committed by her as her grantee, and he shall recover the place wasted against the assignee in that action, and damages against the tenant in Dower, who shall take ^ 1 ^^^ remedy over.(z) But as tenant in Dower can hold *of L "^ ^ J none but the heir, and his heirs by descent, the assignee of the heir shall not have his action of waste against the tenant in Dower who has granted over her estate, but against her assignee, for by the grant of the reversion the privity is destroyed. (A;) But if the feoffee of the baron endows the feme, and she assigns over her estate, waste lies for him against the feme; for (says the book,) the plaintiff shall not sup- pose in his writ that she held in i)ower of him ex assignatione, but only that she held in Dower of his heritage.(/) If tenant in Dower leases for her life to him in reversion within age. (6) 2 Inst. 303. (c) 2 Inst. 303 (cites 32 E. 3, Wast. 104.J ((/) But it seems case does not lie for permissive waste. Gibson v. Wells, 1 New Rep. 290. (e) Bro. Waste, 139 (cites Dr. and Stud. 1, 2.) pi. 88 (cites 21 H. 6. 38.) 2 Inst. 303, 145, where see the reason why prohibition lay at common law against tenant in dower, and not against tenant by the curtesy. But sec lb. 299, 301. (/) Co. Litt. 53. L; 2 Inst. 299. 300, 145. ig) F. N. B. 55. (C.) (A) 2 Inst. 301; 11 Co. 83, b.; Co. Litt. 3 16, a. 53, b.; 3 Co. 23, h. \i) F. N. B, 55. (E.) 12 H. 4. 14; 30 E. 3. 16, b.; 38 E. 3, 23 ; 2 Inst. 301; 3 Co. 23. b.\ 9 Co. 142. a., Anon. Brownl. 239 ; Bro. Waste, pi. 76 (cites 38 E. 3, 23.) " And the reason wherefore at common law the action of waste did lie against the tenant in dower, or tenant by the curtesy, albeit they had assigned over their estates, was, because no action of waste by the common law lay against the assignee for waste done after the assignment ; therefore the action of necessity did for such waste (after the assignment.) lie against the tenant by the curtesy, or tenant in dower, which law continues to this day." 2 Inst. 300. {k) Co. Litt. 54, a. 316, a.; 2 Inst- 301; 3 Co. 23, b.; F. N. B. 56 (E. F.) (0 F. N. B. 56 (E) n. (6) (cites 38 E. 2.) See also F. N. B. 55, (E.) n. (a ;) and Dy. 206, b. OF DOWER AFTER ASSIGNMENT. 165 who never takes the profits, l)ut at full age disagrees to the lease, he miy have an action of waste fur waste committed in tlie mean lime.(rn) The action of waste is now become nearly obsolete, bavins given way to the more expeditious and eligible remedy of an action on the case in the nature of waste. An injunction may of course be obtained in equity against a tenant in Dower committing waste, upon the same grounds as againul any other tenant for life. ]Jy the common law, a tenant in Dower was under the same restraints respecting alienation as other "tenants for life; and if she aliened in fee, or for tiie life of another, or in tail, the heir ^ ^^^ J might after her death recover the land by a writ called in the books a writ of entry ad cotnmunem legcm,{n) to distinguish it from the writ in casu proviso, to be presently noticed. But where tenant in Dower aliened by feoffment, and the feoffee (lic) shall in its order, degree, and proportion, have a use in the term, commensurate with the interest existing in the inheritance. Therefore, when Dower arises, the term in a proportion is just as much attendant upon that interest, growing out of the inherit- ance, as before it was attendant upon the inheritance during the hus- band's life." With the exceptions which will be hereafter noticed, in favour of purchasers, it is now distinctly settled that courts of equity will relieve the dowress in the case of satisfied terms, although several cases have at ^ diflferent times been decided to the contrary ;(c) and the L ^^^ J judges were for sometime much inclined *to distinguish be- tween the cases of a dowress, and a jointress; the latter coming in by the act of the party, while the former was in in the post, and by opera- tion of law; and therefore, as they thought, not entitled to the benefit of (a) See p. 294, 300, supra. {h) 1 Ves. 578, (c) Pheasant v. Pheasant (1671,) cited 1 Vern. 358, 341; but see the report, 3 Ch. Rep. 69 ; and 2 Freem. 212 ; Tiffin v. Tiffin (1681,) 2 Freem. 66 ; Radnor v. Rotheram (1696,) Pr. Ch. 65; 2 Freem. 211; Brown v. Gibbs, Pr. Ch. 97. 2 Freem. 233; Williams v. Wray, 1 P. W. 137. OF ATTENDANT TERMS AS TO DOWEH. 167 the attendant term. Tlils objection is, liowever, now considered ib of no validity ;(^/) nor does any distinction appear to be admitted »b to equitable relief, between the case of a dowrcss, who has bad execution of her judgment at law, and so become to all intents and purposes tenant for life of the reversion, and entitled to be let into possession as acainft the trustee of the term, and the case of a dowress who has rer land exonerated from the mortgage debt, t'ee p. ;t;'>l. «upra. „ , . , (A) 2 Vern. 3-21. (•) 2 Vcrn. 103 ; Pr. th. 133. 168 PARK ON DOWER. after his death recovered her Dower at law, but was kept out of posses- sion by reason of the mortgage, upon which 100/. was still due. Upon a bill filed by her against the remainder-man, and the executors of Samuel Hitchens, to have the benefit of her Dower, it was decreed that she should be let into possession of her Dower, exonerated from the mortgage and that the defendants, the trustees, and executors of Samuel Hitchens, should out of the monies in their hands, pay oif and discharge the said mortgage, and a perpetual injunction was awarded to stay any action at law that might be brought against the plaintiff Silvestra Hitch- ens, on account of the said mortgage. (A?) The latter part of this decree appears to have proceeded on the ground that the dowress had a right, as against the personal estate of Samuel Hitchens, to have the lands exonerated from the mortgage debt.(/) ... -. *In Dudley v. Dudley (wi) (1705), lands were settled to L -■ the use of trustees for ninety-nine years, remainder in tail, and the trusts of the term were declared to be to raise annuities for cer- tain persons, and subject thereto, to permit the persons entitled to the freehold to receive the surplus rents, and profits, and the wife of the ten- ant in tail recovered Dower at law, with a cesset executio during the term, it was decreed in equity that the dowress should have the benefit of the trusts of the term as to a third part of the profits above the charge of the annuities, during their respective continuance, and that the trus- tees should account to her for the third part accordingly from the death of her husband, and from time to time for the future during the term, and the term to stand charged therewith during her life. Sir John Trevor, Master of the Rolls, remarked that " the term was expressly at- tending, and waiting on the freehold and inheritance, nay waiting dur- ing the very charge, as to the surplus of the profits. The dowress's husband had an undeniable right to the surplus of the profits, and had an estate tail in him, and the dowress under him had a good equity to have ber Dower, because the trust of the term was expressly to attend the person that should have the freehold, and her husband had the freehold, and she had the freehold, («) and the words of the declaration of the r *qfiQ 1 ^^^^^ were thereby literally satisfied; though he was of "- -J ^opinion that if the words had been in general to attend the inheritance, it would have been the same thing, and she had a right to this trust witliin the description. "(o) In Williams v. Wray(;;) (1710), the plaintifi" brought a writ of Dow- er and recovered judgment by default: the defendant Sir B. Wray pre- ferred his bill to be relieved against the judgment in Dower, on this equity, that as to part of the lands (the five parishes in the pleadings mentioned) there was a subsisting term for ninety-nine years prior to her marriage, and that the legal estate of that term was in one Mr. Bulkley as a collateral security for his quiet enjoyment of certain lands called Lecquidissa; that, subject to this collateral security, the term was declared in trust to attend the reversion and inheritance, which was in {k) Reg. Lib. cited 2 Vern. by Raithby, 405. (/) See p. 351, supra. (m) Pr. Ch. 241. 1 Eq. Ab. 219. (n) This is not exactly correct, for she had recovered only with a stay of execution, and therefore could not acquire the freehold at law. (o) Pr. Ch. 243, .545. C/>) 1 P. W. 137. 2 Vern. 378. Pr, Ch. 151. I Eq. Ab. 219. OF ATTENDANT TEB&IS AS TO DOWBI. |0f Sir William Williams, tlic plaintiff's late husband, who devised thete lands to Sir B. Wray for lifu with remainders over; and ihal hi« guir- dian had let the plaintilV take judj^munt at law without vitin^ up ihc term. Lord Keeper Wrij^lit, u|)on thu authority of Lady Radnor's cm**, (not distinjTuishin^ between a devisee and a [)urrha»c-r), decreed that the plaintiff Lady Williams was not duwable; but afterwards ujwn a bdl of review brought by l^ady Williams, and on solemn arj^ument iHrforo Lord Keeper Harcourt, he reversed Lord Keep(.T Wright's decree, ind ordered that Lady Williams having recovered Dower at law, . , this trust term that "Sir Ji. A\'ray had set up should not *■ ' J stand in her way in equity. Consistently with the princijile established by the above cases, ii was decided in Duke of Hamilton v. Lord Mohun,(<7) that where a bill is broui>;ht by a son against the executors ol the mother as guardian, for an account of mesne j)rofits, and it appears that the motlier was entitled to Dower of an estate which was in mortgage for years, but the mort- gagee had never entered, that "there ought to be an allowance of the third part of the profits for Dower to the mother or her representatives; and that tlie heir could not insist upon the term to prevent her Dovrcr. And as to the want of a formal assignment of Dower, (for it appears there was no recovery of Dower in this case,) that is nothing in equity for still the right in conscience is the same, and if the heir brings a bill against the mother for an account of profits, it is most just that a court of equity should, in the account, allow a third of the profits for the right of Dower." In Squire v. Compton(r) (1724) the husband was seised in fee, sub- ject to a prior mortgage for years, and became bankrupt, and died, and upon a question between the wife and the assignees of the husband, it was decreed that the wife should be let into her Dower, keeping down the interest of a third part of the mortgage. In this case it would ap- pear that the assignees had taken an assignment of the ^ .^^^ -. ^mortgage after the death of the husl)and, but that was not al- *- lowed to make any difference.(.s) In Dormer V. Fortescue(/) (1711) upon a question as to rents and profits. Lord Ilardwicke observed, that if a widow is entitled to Dower oi an estate upon which a term for years was standing out, and she had her title of Dower out of the reversion of the term, ami she comes into this court to have it removed out of the way, they will decree her an account of the rents and profits from the time of her title accrued, and will set the term as a satisfied one out of the way. The especial fiivour shown by courts of equity to purchasers for valuable consideration has introduced an exception to the rule thai a dowress shall have the benefit of a satisfied or trust term, which is of considerable importance in practice. This point was first established in (q) 1 P. W. lis. ('•) 9 Vin. Abr. ^JV. ^ K.j. At.. 387. (s) It was insisted that creditors and assignprii of cominiMionrrii of bankrupt iUnJ only in the phice of the bankrupt ; and bincc such an a.Hsi«nn)rnt lo the bankrupt \nmf\{ ot ht« heir, would not protect the estate from tiile of dower in tho hand* of the heir, nriihrr wtll il protect the estate in the hnnds of ihu creditors of the bankrupt, or the •••iRnrc. of th» com- niissioners, and tliis dillered the present ca*e from the case of K»Jnor and \ anUcbrndr. Tho decree appears to have adopted this position. (<) 3 Atk. 131. 170 PARK ON DOWER. the case of Bodmin v. Vandebendy,(w) which still continues the leading authority on this head. ^r,j^ n The facts of this case were that the Earl of Warwick *upon L -I marriage of his son, settled part of his estate upon his lady for a jointure, and after failure of issue male, limited a term of ninety- nine years to trustees to be disposed of by the Earl either by deed or will, and for want of such appointment, then in trust for the next in remainder, and then limited the whole estate in such manner as that a third part of a moiety came to Lord Bodmin the plaintiff's husband in tail general. The son died without issue; the Earl by his will appoint- ed the lands to his Countess for so many years of the term as she should live, and to her executors for one year after her death, and charged the term with several annuities, some of which were satisfied and others remained in being. Lord Bodmin, being in possession, (w) sold the estate to Vandebendy for 4,400/. and levied a fine and suffered a reco- very, but to which the wife was no party, and Vandebendy for protec- tion of the estate took an assignment of the term to trustees to secure the payment of the annuities and afterwards in trust to attend the inherit- ance, and also of an ancient statute that had been kept on foot. After Lord Bodmin's death, his lady brought a writ of Dower, to which the defendant pleaded the term; whereupon she filed her bill in equity to be let in to try her title at law, off'ering to discharge the trusts of the term, and prayed that the term might be made attendant on her Dower. The defendant insisted that he was a purchaser, and that he ought to *„„„ -, *have the benefit of this term and the statute, for the pro- L "^'"^ J tection of his purchase; and upon the hearing before Lord Chancellor Jefieries (Hil. 16S5,) it was chiefly argued by the defendant's counsel upon "the inconvenience that might ensue should relief be given in this case: that it would alter the course of conveyancing, and over- throw many purchases, it having been always looked upon as a good se- curity to a purchaser, and a sufficient protection to his estate, where there was an ancient term kept on foot; and frequently in such cases, to avoid charges, they never insisted on a fine or common recovery; and if such a term should be set aside for a dowress, why not for any other incumbrance, "(e^*) Upon the first hearing, the Lord Chancellor in- clined to relieve the plaintiff". Upon a subsequent hearing, however, be- fore Lord Chancellor Somers, in 1696, his lordship doubted whether he could relieve a dowress even against an heir at law, which was another case, but here there was a purchaser, and he could not assist the dowress against a purchaser,(a:) and for that which was alleged that the defendant at the time of the purchase had notice of the plaintiff^'s right of Dower, so he had also notice of the lease, which was to protect it, and so that was nothing.(y) The plaintiff" 's bill was consequently dis- missed, and thereupon she appealed to the House of Lords, where after solemn argument the decree of dismissal was aflirmed. From the printed reports of this case, tlie decision would seem to (m) I Vern. 179, 3.06. 2 Ch. Ca. 172, and S. C by the name of Radnor v. Rolheram, Pr. Ch. 65. 2 Freem. 211, and by that of Radnor v. Vandebendy. Show. P. O. 69. (v) It is stated by Vernon that Lord Bodmin sold only the reversion after the death of Lord Warwick. If so, how could Lady liodrain be dowable 1 (w) 1 Vern. 358. " (a) Pr. Ch. 66. (tf) 2 Freem 211. OF ATTENDANT TEBMS AS TO DOWER. 171 have turned nearly as much u|)on 'the doubts which then ,__ prevailed whether a dowress was entitled to the h«Miefil of •■ J an attendant term i/i any event, as upon the particular circumstance of its heing against a purcjjaser, and the court appears merely to have put it as making the case stronger against the dowress, that it was the caie of a purchaser; hut the later cases have referred Hodmin and Vande- bendy exclusively to the latter ground,(r) and it is certainly upon that point only that it can he considered as law. In Dudley v. Dudley, Sir .lohn Trevor remarked, "I conceive that case j)urely to have been decreed in favour of a purchaser, and the strength of it to he grounded on the general inconvenietjcc-j that would attend all i)ur(;ha?crs boiuifuh^ witlioul notice, which was the point my Lord Jefferics and Somers went upon, and for which occasion was cited the case of Basset v. Nosworthy, 26 Car. 2, in Lord Nottingham's time, which was thus, Nosworthy pleaded himself a purchaser of valuahlu consideration without notice, which plea being proved, came to be heard upon the merits, and the Lord Chancellor declared, That a purchaser, bondjidc, and without notice of any defect in his title at the time of his purchase, may lawfully buy in any statute, mortgage, or any other incumlnance; and if he can defend himself by those at law, his adver- sary shall have no help in equity to set those incumbrances aside, for equity will not disarm a purchaser; and precedents of this kind are very ancient and numerous, where the court has refused to give any assi.«tancc »against the purchaser either to the heir, or to the widow, •3-5 1 the fatherless or to the creditors, or to one purchaser against ^ J anothcr."(^/) The case of Radnor and V' andebciidy was followed up by that of Swannock v. Lyford (174 1), (6) before Lord Hardwicke; the judgment in which, as given from a very full note in one of Mr. Uutlcr's annota- tions to Co. J^itt. is too important to be omitted. " Lord Chancellor. — Plaintiff's husband, being seised of a freehold estate, subject to a term of 1000 years standing out in a mortgagee, by virtue ot a mortgage made by his father, conveys the inheritance to de- fendant for a valuable consideration; and at the time of the conveyance, defendant takes an assignment of the term in mortgage, in the names of trustees, to wait and attend upon such iidieritance; and now the plaintiff brings her bill against defendant the purchaser, for Dower, praying to be admitted to redeem this mortgage term, and to have it out of the way; and upon payment of her |)roportion of the mortgage money, to be let into her Dower immediately, that she might not wait till the determination of the term. (Question is, whethi-r the court ought to de- cree tliis, under the jjresent circumstances of the case } I cannot say but that the decree already made at the Rolls for plaintiff, the widow, is absolutely consistent with the mere reason of the thing, if it was now to be considered originally, and settled; but as this must , ^^^g ^ depend not "only upon the precedents of the court, but the ^ practice of conveying titles to estates, upon which the precedents them- selves were settled, I do not wonder that a decree of this kind should (2) SecPr. Ch. 243. 219. (o) Pr. Ch. 219. .. t .*. lb) Ambl. C. S. C. under ihe name of Hill v. AJiin*. 2 Alk. 208. BuU..(-o. U\X. Jm, a. n. (1.) 172 PARK ON DOWER. be made by a judge who was not absolutely conversant in such prece- dents of the court, and the distinctions taken therein. But upon consi- deration of them, and the great authority relied upon of Lady Radnor and Vandebendy, I am of opinion that the decree ought to be reversed. And if it should not, would it not be going directly contrary to that great authority, and the reasons upon which it is founded, and make such uncertainty in this court in regard to purchases, that the subject would not know what to rely upon? The wife here claims her Dower, subject to a term originally standing out in a mortgagee. The conse- quence of that is that in law, though she might have brought her writ of Dower, and recovered judgment, yet she could not have had the be- nefit of it, till after the determination of the term; for the judgment would be with a cesset executio till that time. This was the wife's legal remedy; and that being so, she comes into this court, upon the founda- tion of her general right of Dower, to be delivered from that restriction which the law imposes upon her, from having the benefit of it till such determination of the term, and to be admitted to redeem this term, which is now not in the hands of the mortgagee but of the purchaser, as being assigned to attend upon the inheritance, and for the other pur- poses before mentioned: and though the assignment is not in the words P j,co77 T " to protect the inheritance from Dower, or mesne incum- L "^ -J brances," *yet it is always so understood; otherwise there would be no use in taking the term in the name of a trustee. It is ad- mitted by the defendant, in case things had stood as they were at the time of the marriage, viz. that the term had been in the mortgagee, and the inheritance in the husband, as heir, or purchased from him by the purchaser without an assignment of the term, as here, the wife, as enti- tled to Dower, might then have come here to redeem the mortgage, to have the benefit of coming at her Dower immediately, by paying off the mortgage money, or keeping down the interest for the benefit of the heir or purchaser. And even this was (when originally settled) going a good way in favour of a dowress, though it was consistent with the reason of the thing; for, as she was entitled to Dower, and as a mortgage is only a redeemable interest, it is fit the equity of redemption should follow the nature of the interest in the estate; and she to be endowed, and the heir at law to be entitled to the inheritance subject to such Dower, was giving the wife a real benefit arising from her Dower, and not a mere nominal one, as it would be at law, where there is an outstanding term; for when the law says, she shall have judgment for Dower, but with a cesset executio till the determination of the term, that is in fact to say, she shall have no Dower, and therefore this court, as against the heir, but not the purchaser of the term and inheritance, gives her the benefit of her Dower, by removing the term. And if all the cases of tenancy in Dower and Curtesy likewise were now originally [- *Q7o -1 to be considered, it might as well be left upon the strength '- -■ of the law, for it is *undoubtedly a mere legal title that the one has, as well as the other; and there is no contract of the party's in- tervening. Therefore, if a woman marries, and the husband is in pos- session of an estate, or if a man marries, and the woman is in possession of an estate, each party knows that at the time of the marriage their estates are liable and subject, on the one side, to a tenancy by the cur- tesy, and on the other, to Dower, and to all mesne incumbrances and OF ATTENDANT TERMS AS TO DOWER. 173 terms; and there is no harm to sav, that hoth ^hall lake their chance The commiseration in respect to Dower, has arise., from the .hMi-rmin.l tions in favour of tenancy by the curtesy; and indeed the d.stinclion made between Dower and tenancy by the curtesy is founded upon very sh^ht reasons; but, however, it has been so est;d)h»hcd. The frreat point, in this case, depends upon the determination in the ra»c of Lady Radnor and Vandebendy. (Here Iris lordship stated the ra«c ) There was great doubt in Ibis court; and so in the House of Lords; and there was a great inclination in the bouse to reverse that decree of I^rd Somers; but, when the counsel came to the bar, the I^rds asked, whether it was usual for conveyancers to convey terms for years to* attend the inheritance, to prevent Dower? and the counsel, with ureal candour, saying it vvas, the Lords confirmed Lord Somers' decix-e. The point that weighed in the judgment was, that this was the case of a purchase for valuable consideration; that, in making convey- ances, purchasers relied upon that method of taking a conveyance of the inheritance to themselves, and an assignment of the term standing out to a trustee, to attend it; "that the out- , . standing term was prior to the title of Dower in the L '^'^^ ] wife, and, therefore, purchasers have relied upon that as a bar to such Dower; so that this Court and House of Lords were of opi- nion that, if they were not to permit that to be so, it would be to overturn the general rule, which had been established and practised by many titles to estates, and tend to make such titles pn.-carious for the future." "■ Ever since this case it has always been said that the court is bound by it; and, on the other hand, I have heard it often said bv the court that they will go no farther. And therefore, to have the k-nefil of a determination, every person's case must be exactly and strictly the same with that. I am of the same opinion too, and will not no any further than that case does. So that then the question comes to be thi«, whether there is any distinction between this case and that? It is said, that liiere the ])urchaser was allowed to protect himself, bv taking in the term attendant upon the inheritance, because that was a salJMfied term, wiiich, in the consideration of this court, was become part of the fee; that he purchased the whole estate of the husband, and therefore an old term, such as that was, has been allowed to be so assigned, to protect the inheritance, but that in this case, the husband had nothing in the term, because he was owner of the inheritance subject to it, and of the equity of redemption of it; and for thai at tin; time of the purchase, the term was in mortgage, and standing out, and the money advanced still due upon it; that it was a security se|)arate from the husband's in- heritance; and the purchaser took it from the mortgagee - m^cn i *only, and not from the husband. Hut 1 think that makes *■ '*' ■' no difl'crence here from that of N'andebendy. If there is any difference it is against the plaintitT, and makes the case much stronger in favour of the ]nx'sent purchaser. It is dilVicult to say, upon the stale of the cas*', that the term there was a satisfied term at the time of the purchaM-. I rather think it was not; for Lord Somers slati-s it, that the Karl of War- wick, who had the ])ower of a|)pointing the trust term, did ap| out it by charging it with some annuities which were to commence a year after, and tliat some of them were continuing, and some of them dcler- mincd, and, I think, after the purchase made; and if that was so, this Vol. XL— 2 Q 174 PARK ON DOWER. was not a satisfied term, but still subsisting to pay those annuities, which were incumbrances continuino; upon the terms: so that Vande- bendy, who took the assignment of the term, took it subject to the trust so continuing on it, in like manner as the purchaser here took the term, subject to tiie mortgage, and the money due thereon. Therefore the distinction endeavoured to be made between tlie case there being a sat- isfied term, and this being a mortgage term not satisfied, fails. But sup- posing the term had been satisfied, how would that make any differ- ence? It is true, that would then have been a trust for the husband and his heirs, and he would have it as a part of his ownership and dominion over the estate, and consequently, it would be subject to Dower, as against the husband. For if the husband dies, and there is a satisfied term continuing, the wife would be entitled to come into this court *QQi 1 'ig^'"st the heir, to set that term out of the way, in *order L -"to have the benefit of her Dower; and that is expressly so said in the case of Banks and Sutton, 2 Wms. 700, by the master of the Rolls, and he cites a case to that purpose: and undoubtedly she would, without paying any thing. And if, in the present case, the husband had made no conveyance to the purchaser, and the mortgage had continued in the mortgagee, or his assignee, and the equity of redemption had descended on the heir, she would have been entitled likewise to Dower against him, by redeeming the term, and paying her proportion of the mortgage monev, or by keeping down the interest. Bui if a term for years is in mortgage, and a person purchases the inheritance of the hus- band, and takes an assignment of the term from the mortgagee, by pay- ing off the money, not only to have the trust of the term as a security, but to protect the inheritance so purchased, would it not be hard to take away the benefit of it from him? Shall it be said, that he shall have a less inheritance by taking in a mortgage term in that manner, b}' ac- tually paying off the mortgage money, that if he had taken an old satis- fied term, for which he never paid any thing? Therefore, if the term in Lady Radnor's case had been a satisfied one, that would have been so far from distinguishing that case from this in favour of the plaintiff, that it would have been rather stronger in favour of the purchaser, for here he paid a consideration for the outstanding term, and there nothing would have been paid for such satisfied term. But it is said, that this ptirchase of the mortgage was from the mortg;igee, and not from the ^ -| husband. If that was so, I do not know that this would L -J make any difference, because the husband here *joined in the assignment of the mortgage. But what results from this case is, that it was part of the agreement of all the parties (the husband joining) that the term should be purchased in by the purchaser of the estate, to attend his inheritance; and that is the very trust declared by the deed. Jt has been admitted here, that if the husband had paid off the mortgage him- self, after the coverture, and taken an assignment of the term in mort- gage, in trust for him and his heirs, to attend the inheritance (in which case it would have then become a satisfied term;) and, after this, a pur- chaser had purchased from him, and paid him the whole money, and taken a conveyance of tiie inheritance from him, and an assignment of the term from the trustees, that would have been very well, and within the case directly of Lady Radnor. What is the difference then, in the reason of the thing, whether the husband pays off the mortgage himself, OF ATTENDANT TEBMS AS TO DOWEB. 175 and tnkes an assi{;nment of tho term, in tnisl for himself and hit heir», and then sells to a purchaser the inheritance who takes the term from the trustees; or whether the piirchasrr comes, and purchases the inhrrit- ance from the hushand, and pays off the mor«j;aKe, and take* an a»si|pi- ment of the term to himsell; is the case the less strong fur ifial? It is rather stroni;;er. — It is admitted that if this had Ix-en an old fuiitfied term, standing out attendant upon tho inheritance, and a \,< fiad purchased from the husband, and hid taken in this term, thai ..vc j)rotected the inlu-ritance: That if a niati, hefore marriage, convt-ys his es- tate privntely, without the knowlerlccn oner as- signed to attenti the inheritance, is to b(! considereil always as assigned to attend the inheritance, and the etfect in law and ecpiity is precisely the same as if that subsequent purchaser had got in the term, viz. aa if he or his trustee had possessed themselves of the instrument creating the term, and made the trustees in whom it was vested parties to hia conveyance, declaring that they would hold it for him, and to attend the inheritance purchased "by him. — I felt great difliculty, . .^^g , upon the argument, to make consistent, nor can I now make •■ consistent with any rational principle, the doctrine that the punhascr shall be protected in the one case, and not in the other." His lordship then took a brief view of the general doctrine of attendant ti-nns, and the protection afforded by them in general cases to purchasers, &c. without notice, and added: " With reference to that there is a distinction as to the dowress: a distinction that has prevailed upon no principle, hut merely upon the practice of conveyanct-rs; fur in Latly liadnor r. Vandebcndy, where, according to the note ol Swannock v. Lillord, a term, not satisfied, had been declared expressly to attend the inheritance, one thing is clear, that the purchaser had notice that the indiviilual of whom he purchased was married; and, therefore, that her inchoate title as dowress had attached upon the inheritance; consequently that the term when it shoidd he satisfied, and before it was satisfied, subjoci to the purpose for which it was raised, was one in which the trustees had the legal estate to attend upon all the interests in the iidienlance, the estate 'of the husband and the widow, if this wrrr res iiUr-^ra, the proposition would be monstrous, that the purchaser, having notice of his right, and of tl)C use that is made of a term outstanding by a court of equity, should buy in the term, and with full notice, not .^quor/c out any other incumbrance, but effectually displace the Dow.r. That proposition wasthought and argued at the limeofthcdecision of Lady Radnor v. Van- debcndy,''not to be very easily reconciled with thr •urdinary r .,,^J, j principles of equitv; but the' House of Lords, upon the in- formation given al llie i)ar, and confirmed by Lord Somer.-*. which, alter (^) 7 Ves. 567. 10 Vm. 2t0. 2 Q ii 178 PARK ON DOWER. reading that case and Swannock v. Lifford repeatedly, appears to me the true point of that decision, held that the term having been assigned in that contract of purchase, the purchaser was for that reason to be pro- tected, and the authority is the stronger if the note of Swannock v. Lifford is correct, stating, that previously to the purchase in that case, and by an antecedent instrument, that very term was declared attendant upon the inheritance. There could not, therefore, be any difference in the reason of the thing, unless it turned upon the very fact, that there had been an actual assignment. In Swannock v. Lifford Lord Hard- wicke says expressly, and the House of Lords had determined, that they would not go farther. " Upon the whole I mean not to say, for it is impossible to say with confidence, that there is any great difference in principle upon the case of a dowress; that she stands as an owner of the inheritance contradis- tinguished from every other owner: so that though notice of the title will protect every other interest in the inheritance, it shall not protect . her, and nothing shall protect her but the circumstance that the purchaser has omitted to take an assignment of the term to be attendant upon the inheritance in that very transaction; though the term has in a prior transaction been declared attendant upon the inheritance. But in the case of Swannock v. Lifford, Lord Hardwicke takes the House of Lords ^ to have so decided; upon the Aground that in those very L "^^^ J circumstances, and /A«//(rec?5e cf/^e, the court is bound, not by a principle upon which it can well reason, but by a practice of con- veyancers, found to be inveterate, that to that length it will go, and that it will not go farther. At least my opinion is, that the ground upon which the Master of the Rolls decided that part of the case is right, and therefore I confirm that." It is understood in practice, that in order to protect a purchaser against Dower, the term must be actually assigned before the death of the husband.{h) This point, like most others connected with the pre- sent subject, rests more upon practical impression, than upon the reason of the thing. If law, it appears to have been wholly overlooked in the case of Wynn v. Williams, before mentioned, in which all the transac- tions were subsequent to the death of the husband, but the mortgagee, and subsequent purchaser, were held to be protected by the assignment of outstanding terms. In practice, great difference of opinion exists as to the propriety of relying upon an assignment of an attendant term, as a security against titles of Dower. On account of the expense of levying a fine, or the difficulty of obtaining releases from the widows of former owners, the sufficiency of' the term as a protection is generally contended for on the part of a vendor, and since the decision in Maundrell and Maundrell, a *QQi n ft'"*^ ^^^^ h&Qn dispensed with in a great *number of cases, L -' the purchaser contenting himself with taking an assignment of the term to his own trustee, and a bond of indemnity against Dower from the vendor. The present practice, however, seems to have a lean- ing towards insisting upon a fine in most cases, on the part of a pur- chaser, where the property is of any considerable value, although as to a mortgagee, the assignment of a term is usually considered sufficient. {h) And see Walk. Princ. by Preston, 53. OF ATTENDANT TERMS AS TO DOWEK. 179 It is frequently insisted by the counsel for a purchater, ihat although the term does, while cxistinir, afi'unl an inipcdiment to ihc nucccMful prosecution of a claim of Dower, yet that the protection afforded by it is not such as can be relied upon by a purchaMT to diupcnsc with the necessity of a fine, inasmuch as the term is always liable to acridental and unintended merger, and the purchaser would, notwithstanding the existence of the term, still remain exposed to the harass and exjx-nsc of defending a writ of Dower, since liie term cannot be used as a bar lo the action, but only to postpone the enjoyment under the jiie little doubt that a court of etpiity, uj)on a disclosure of the real ,___ , circumstances of the "title, would grant an injunction against ^ ** * J the prosecution of the legal title, and would saddle the widow with the costs at law and in equity; and this opinion has been sanrtioncd by gentlemen of considerable eminence, liut it may j)erh3ps be going too far to consider it clear that a special j)roteclion, originally aflorerfecl remedy at law, she should not l)e (tided in ecpiity again-tt a purchaser, should be extended in the oj)posite direction, lo restrain her from the prosecution of her legal remedy to that extent to which the law xcould carry it. Whether or not under these circumstances a court of equity would compel a purchaser to accept the title without a fine from the yetulor and his wife, has never been expressly ilecided, but in the case of Maundrcll fV. Maundrell, Lord Eldon incidentally threw out an oj)inion, that " the Vcourt looiild make the purchaser take the title, as the trustees might C04ivey."(/t') Jo the subsequent case of Simpson v. Clutteridgc,(/) Sir Thomaa PluiiWr, V. Ch. appears to have been of the same opinion, observing, that "^s it is admitted this term has been assigned in favour of these purchafers, it docs away all the objections raised in the first exception, it being clear that no claim of Dower can be made against this pur- chaser." It was not necessary, however, expressly to determine the point in this case, the wife having a jointure. The observations upon the point above given 'haye not . •393 i been altogether satisfactory to the profession, (7/*) and it may *■ ■» perhaps be permitted to entertain a doubt whether, whenever the case shall be tiioroughly investigated, enougli will not appear to induce the court to feel some scru|)les in com|)elling a purchaser to content himselt with the protection allorded by an attendant term. Hfsides the objec- tions made in practice, it might aLso be urged, that the common imprc.« sion that judgment is given at law with rtsset ejtculio in every ca^- where there is an existing term is exceedingly erroneous; for wc have (»>Seo Walk. Princ. by Preston, 5'J ; anJ :J I*n'«t. \U{. 379. 405. It U ohJ4>clrd too lhat th\ (Hirchasor would be at llio expeiisr of kocjiinti the term on fool (•«* 8ugJ. Vrnd. Ml', but lhit> objection cannot Iw consiiUrcil a.s of much wriKbl, iinrc in conMS]urnr« of the pri>- lection whiili tlicy alVonl against other incumbranccn, ouUt«iiding tcniM ar*, in OMkai pr*c- tice, preserved with so much anxiety. {k) 10 Ves. 262. (/) lM.dJ. 618. (m) And see Sugd. Vend. 302. ISO PARK ON DOWER. already seen, that the only case in which execution shall cease during the term, is where no rent is reserved upon the creation of the term, and that in all cases where there is a rent reserved, execution shall be award- ed immediately, with a saving of the interest of the termor. As in almost all demises a pepper-corn rent at least is reserved, and as the wife will at law be endowed of that rent, it follows that she would gain execution of the freehold, and be entitled to exercise all those rights which might arise from the ownership of the freehold, so far as they were not inconsistent with the ownership under the term, which, in cases it is not impossible to conceive, might be the means of harassing the purchaser. INDEX. The pages referred to are tliose between brackets, [ ]. ABATOR, wife of, dowable, 37. ACCOUNT of rents and profits may be had by a dowress in ctiuitv, .'i.'M). ADMEASUREMENT OF DOWER, writ ot, 'JTM. ADVOWSON, a woman id dowable of, when. 111, 111. , liow to be endowed oti 253. What seisin of in the husbtnd neoeatn, 36. ADULTERY, whctlicr a bar to Dower, 20, 223. AGE of the wife in order to entitle her to Dower, 17, 18. AGREEMENT. See Contract ALIEN cannot have Dower unless married by license of the king, 2iJS. , wife of, can derive no title of Dower from him, 229. . See Queen Consort. ALIENATIONS by the husband considered with reference to llie title of Dower, 231, et seq. by the husband, though immediately before marriage, will prcvcnl Dower, 2:3ri, :iH2. not completed till after marriage may be good against the dowresi by relation, 2^34. customary alienations after marriage may be good against the dowroa, 24.5. See Copyholds. by tenant in Dower, 300. ANNUITY IN FEE, no Dower of, 111. APPENDANTS, a woman dowable of in some cases, 114. APPOINTMENT UNDER A POWER, whether it defeats Dower on tlie oaUte de- termined by it, H4, 186. cflect of the mistake frequently occurring in practice of appointing to the releasee to uses instead of to the use.s 'J^K note. ARREARS OF DOWER recoverable in eciuity, 3:U), 3:32. ASSIGNMENT OF DOWER how to be made ncconling to common right, 2r)l. Against common right, 202. How proiwrtion of the (iowrei« is to be aacertaincd, 255. Must be of lands of which the woman is dowable, 2t>-l. Cannot have a coo- dition annexed to it, ib. Who it may be made by, 2(>5. Hy an incomp^-tonl per- son is not void but voidable, 2(H. Defeats the mesne Hcisin ct the heir. l.V». ;V13. Avoids a descent cast, 142. Discharges remaining lands of the lanibond from lh« title of Dower, 213, 277. Does not require livery or writing. 2IM. Dcoying deUoue friwly. is a furtiiituro of"J)u\V( r, 227. DISACJREEMENT. TIk; witij may iliuaprrce to a joint estate inaile tu Utt and her hiishuiul (Jurinjr coverture, uihI brinjj Dower, 40. DISSEISOR, wife of. is dowable, ;<7. ll»r titlf of iKjwer i- rr*tura- tioii ol the seisin, 141. May a.^sijjn Dower in H>ine caw -, DISCONTINUEE, wife of, is dowable, 87. Her title of Dower u delmlnl by tiae restoration of the original seisin, 112. DlVOiiCES, their elfects as to Dower, 20. DOS DE DOTE, 'A, l.")l, I.'m. DOVEHOUSE, a woman is dowable of, \l',\. How to t)o awiffiicd, 2.V2. DOWER, an object of great tiivour at the common law, 2. Cuuhc of ilio uapopulanty of in modern times, li. Ad ostium ecclesui-, 4, lli^l K' . ib. I)e la i)his belle, 4. By the custom of gavelkind, ib. OfU- iJefi- nition of Dower, 5. Does not arise by contract, but by o|)i;m.i.i.i] .a i,n\, lo. Title of, cannot be restrained by any condition or provitso, H2. Sec Table of Cootvnla, and this Inde.x, under tlie dillL'rent heads. DOWRf^SS is in in the per, 102, 341; and yet by the law, ib. Whether slic may be seised to an use, 102. Her estate shall not be exl<'nded on a btii'.i!.- m Limiw- lodged before marriage, during the minority of the heir, 2^17. Af' nl, must join in making tenani to the praecipe, 340. Is in by the hu.-'l i ;h« heir, ib. And by relation to her husband's death, so as to avoid all n,' :.■ »iin», 340, 343. Is attendant to tiie heir tor the services, 344. .May grar.i < , ... -, Ml. Whether she can take advantage of a condition of re-ontry in a leaM.- lur yeara, 347. When she shall take advantage of an escheat, 34*^. .May redeem a mort- gage for years, 350; and a mortgage in fee in some cases, JJiil. Must rtiick land proportionally, of which she is endowed in common, 3.'y). .Must contr.bule to charges of an office, ib. And to rent-charge.s, 3r>7. Cannot comnnt wa«tte, ib. Cannot alien hut Kir her own life, .301. Not to be charged with hnsl. ENTRY BY HUSBAND, when necessary, in order to a title of Dower. .'M. EQUITABLE ESTATES, not subject to Dower, 124, el sr,/. EQUITY, COURTS of, will relieve against titles of Dower, merely lejfal, KM. KM. 100. of relief in for Dower, 317. Will not try the right to Dwrr. if disputed, 32!). Will decree an account of nnts and protil.M to a d.>wr^•^NIC^O. Will a.«sist a dowress with a di.-^covery, 320. Will asaign Dower by conimuMO, 273, .323. EQUITY of redemption on a mortgaire in fee, a woman is not dowable of. 137. Other- wi.>;e on a mortgage tor yeans 140. ESCHEAT does not defeat a title of Dower, l.'>"'. . See Dowress. ESTATES, of what kinds of, a woman is dowable, 47. Not oi . int;.- ;iu. r.-i;.. ly. Nor of estates of mere freehold, 4'< ; althou!:li descend ible t.i hnn-. ih. .NW c/ estates e.vpectant on a prior estate of t'reehold. '<^. Downble of a I - •■ '• - >" .or a qualifievl fee, ib. The freehold and inheritance mn.-t b«' in the hi. •' rl semcl, 5(). An interposed vested estate of freehold prevent-* Oi. J^of Dower, 57, 73. No Dower of an estate limited lo two. and • --'"'"'•i^ Whether an interposed contingent estate for years is no u\r .. Th« determination or surrender of the immediate or prior rstnle lets in ii'«- •'''^" Dower, 74, 70. Although the surrender is ujwn condition, an Iwig «" ""' fw«w»- tion is not broken, 75. Estate for years prior to Uie estate of the ho»l«n«l w no 184 INDEX. ESTATES— Continued. . «^ o . impediment to Dower, 76, Nor an interposed estate for years, 77. bo as to chattel interests, 78. Estate of the husband must be such as his issue by the woman claiming Dower may inherit to, 79. ESTATES TAIL, Dower is not defeated by the determination of, 79, 158. . IN FEE, the escheat of for default of heirs, does not defeat Dower, 158. IN FEE SIMPLE COxNDITIONAL, a woman is dowable, although de- termined by failure of issue, 158. _ . ESTATES. See Equitable Estates, Collateral Limitations, Conditional Limitations, Executory Devises. ESPOUSALS, for what purposes considered as matrimony, 8. ESTOPPEL, demandant in a writ of Dower shall have advantage of, 297, and be bound by, ib. ESTOVERS granted to one in fee, his wife is not dowable thereof, 113. EXCHANGE, wife not dowable of lands taken in exchange at common law, till entry by the husband, 34. Otherwise, if by conveyance to uses, 35. Widow may be put to her election to be endowed either of lands given, or lands taken in exchange after marriage, 261. Exchange made before marriage good against dowress, al- though not executed till after marriage, 235. EXECUTION on judgment in Dower, how given, 299. EXECUTORY DEVISES, whether the operation of defeats Dower, 168. EXTINGUISHMENT OF RENT, [TENANCY, &c. by act of husband, not good against dowress, 239. FAIR, a woman is dowable of, 113. In what manner to be endowed of, 252. FEALTY, a woman is not dowable of, 123. FELONY, attainder of by the husband, not a forfeiture of the wife's Dower, 217. Attainder of by the wife forfeits her Dower, 222. FINES of copyholds, &-c. a woman is dowable of, 113. How to be endowed of, 2.52. FINE levied by husband and wife, discharges the title of Dower, 192. Proclamations not necessary for that purpose, 195. The fine must import a grant of the fee, or of an estate of freehold, 196. Fine creating a chattel-interest, only suspends the Dower, ib. If no declaration of use is made, the wife becomes again dowable of the resulting use, ib. A subsequent declaration of the use would, it seems, defeat the Dower, 197. Wife not a necessary party in declaring the use of a fine, in order to bar her Dower, 200. Whether a fine will in equity be restrained to the particular purpose for which it was levied, in favour of the dowress, 207. FORFEITURE of Dower, what act will produce it, 217, et seq. FRANCHISES, when a woman is dowable of, 112, 115, 349. FREEBENCH,4, 29, 106, 128. FREEHOLD, the avoidance of by title paramount defeats Dower, 154. . See Estates, Suspension. GUARDIAN cannot assign Dower, 266, 304. HEREDITAMENTS real, a woman is dowable of, 113. Not of personal heredita- ments, as an annuity, ib. HERIOTS, a woman is dowable of, 113. How to be endowed of, 2.52. HOMAGE, a woman is not dowable of, 123. HOUSES. See Buildings. HUNDRED, whether a woman is dowable of, 123. H USBAND, his alienations and charges considered with reference to the title of Dower, 231, et seq. seised jure uxoris, may assign Dower, 268. . cannot bind his wife, who survives, by acceptance of less Dower than she is entitled to out of the estate of a former husband, 279. JAIL, a woman may be dowable of the custody of, 113. IDIOT, wife of, whether dowable, 16. JEWESS, whether dowable, 229. INDEX. 195 IMPROVEMENTS made by alienee of husband, whether to be eii«(mt«l la vm r^- n g INCORPOREAL HEREDITAMENTS. w»uii aouim of necS. Lease lor years made prior to marra^ ia no impediment to the attachment of Dower, although it poetixmes tiie cnjoyincot, 78. Dowress becomes entitled to the rent, 77. Ix;ase made by tenant m tail bdbrc marriage, good against the wife, although void against the isnue iu tail or remun- der-man, 162, 23G. Acceptance of lease by dowress a waiver of her riiflit to Duwer 214. * LESSEE for years, cannot assign Dower, 266. LIBPjRTIES savouring of the realty, a woman is dowable of, 112. LIMITATIONS, statutes of, do not apply to Dower, ;311. LONDON, Dower barred by bargain and sale enrolled, or by recovery ju 11'..-!,; ^' Court, 195. LUNATIC, wife of, whether dowable, 16. MANOR, a woman is dowable of. 111. MARKET, a woman is dowable of, 113. How to Le endowed of. 252. MARRIAGE, circumstances requisite to, for the purposes of IXiwer, 7. M.rriA;* contracts, unaccompanied with celebration, do not confer a title of Dower, ^ I /■• of the Marriage Act as to Dower, 9. The legality of the marriage cannot U u..^i in the temporal courts in Writs of Dower, 11, 2'.Hl ExceptionH to that rule. 12, 289. What evidence of marriage neci'ssary in the Buowcr. 56, •Enquiry whether there is any merger of estates limited witli an mlrr contingent remainder, 62. MILL, how a woman is to be endowetl of. 252. MINES, in what cases a woman is dowable ot'. 115. How to l>o endowed of them. 2S!l Whether they are to bo estimated in assigning flower. 2.>. Wliat may be woriMd by tenant in Dower, 2.")9. 358. MONRY to be laid out in land, a woman is not dowable of. l.'W. MORTGAGE, when a dowress may redeem, :\rt(). Sfiiibl. Tlint nhe mar be Irt m la redeem a mortgage in fee in some cases, 209. Has a right to liavc her w<*u- «■ onerated from mortgages, 3.')1. MORTGAGE!': taking an assignment of an attendant term, may defend him»elfa£»ii»« Dower, li'^.'x MORTGAGEES, of tiUes of Dower ia the wives of, 100. Vol. IX.— 2 R 186 INDEX. NAVIGATION SHARES, a woman is dowable of in some cases, 113. NEW RIVER SHARES are real estate, 113. NONAGE. The parol does not demur for the nonage of the heir in a writ of Dower, 298. OFFICES, a woman may be dowable of, 112. In what manner to be endowed of, 252. She must contribute to the charges of, 356. OUTLAWRY of husband, whether it shall hinder the wife from recovering damages for detention of Dower, 302, note. PARKERSHIP, a woman may be dowable of the office of, 112. PARTITION, the wife of a jointenant making partition is not dowable till the hus- band executes the partition by entry, 34. . See Recovery. PARTNERS purchasing real estate as partnership property, when their wives shall be dowable, 106. PENSIONS, ecclesiastical, a woman is dowable of, 111. PISCARY, a woman is dowable of, 112. How to be endowed of, 252. PLEA of purchaser for valuable consideration does not lie to a bill for Dower, 327. PLEADINGS in writ of Dower, 145, 287. POSSIBILITY, may prevent the attachment of a title of Dower, 72, POWER of appointment, whether the exercise of defeats Dower, 186. PRECONTRACT no impediment to Dower at this day, 10. PROFESSION (religious) of the husbmd does not accelerate Dower, 248. PURCHASER, whether he has an equity to have the other lands not purchased by him assigned to the wife of the vendor, in exoneration of the lands purchased, 281. Taking an assignment of a satisfied term may defend himself against Dowress, 371. PURCHASERS, when there are several, of lands on which Dower is recovered, they are to be charged proportionally, 282. . See Contract for Sale, Plea. QUARENTINE, 250. QUARRIES, whether a woman is dowable of, 11-5. QUEEN CONSORT, is dowable though an alien, 228. RECOVERY against the husband by title paramount defeats Dower, 145. As under the implied warranty on an exchange, 1-52, or partition, 1.53, but not a recovery upon a warranty ancestrel, ib. Common recovery brought against the husband and wife bars the title of Dower, 192. So if the wife is vouched, 193. RELEASE, titles of Dower may be extinguished by, after the death of the husband, 212. REMAINDER, limiteu on an estate in Dower, is void, 341. . See Contingent Remainder, Estate. REMITTER may defeat a title of Dower, 143. ■ a woman cannot be remitted to her Dower, 335. RENT reserved on a lease for life, a woman is not dowable of, 49. ■ may be reserved for equality of Dower, on assignment, 261. Cannot be assigned by the sheriff in lieu of Dower of the land, 263, but may by the heir, 263, 267. May be assigned for Dower without deed, 271. When granted in lieu of Dower is distrainabie of common right, 349. reserved on a lease for years, apportioned when the the wife is endowed of the reversion, 346. RENT CHARGE, a woman is dowable of, although her husband dies before receipt of, 35, 111, 112, but not if the husband brings a writ of annuity. 111, 112. And she is dowable although the rent determines for want of heirs, 1.58, 1.59. No dower of a rent charge granted to a man and his heirs pur autre vie, 49. If a rent charge is made to cease during the nonage of the heir, the dower is suspend- ed during that time, 163. Release of a rent-charge by the husband does not de- feat h's wife's Dower thereof, 240. RENT-SECK, a woman is dowable of, 112. iNui:x. 187 ilHNT SERVICE, n •romnn is dowublonf. 111. UENTH AM) PROi'MTS, accuunt uf, decreed to » dowrew ia couiti of tqaitj, SSU. Sfo Arrrjirn of Dowr-r. RESi:i;i"I\(; use. Sou Fine. REVERSION oil a luu.su fur litu no Dower or, TtU. UUierwuM uo ui artsto fut jc*n 7(). RIGHTS OF EiNTRY, no Dower of, 2'). SEISIN, necessity of in tlic hiishaml, to confer a title of Dower, '2A. Hewio in law sufficient, ;n. VVIi;it nccesriJiry as to incorix)ri!iil hereditsinentii, TCi. H«i«o b]f relation, whether eufficient for the purpom- of Dower, *Jf5. :M), HI. Mustbsnio, 87. Wliat (hiralion of seisin nece.s.sjiry to confer n title of lX»wer, 4ii. SlIIF'ri.\(; rSES, etlect of upon dower. 1(H. SI'ECIEIC 1»ERF()R.M A.NCE. Sue Contract for Sale. STEWARD OF E.\(JE.\N1), a woman is noldowable of the office of, 112, nole. SURRENDER. See Estates. SUSPE.XSiON of tliu freehold of incorporeal liereditainenla excludes the atUchoMOt of Duwur, .")."), but not a suspension for years only, 77. of right to be endowed, what amounts to, 21«L TENANT IN CO.MMON, the wife of, is dowable, 41. TENANT FOR LIFE \sho makes a feotruient m fee, his wife does not become dowa- ble, 43. TENANT IN TAIL, alienee of, has a base fee, and his wife i« dowable, M, 142. Conveyances by, whi'ti void, when voidable, 'S-V-i. TENANT TO TliE PRAECIPE, wife of, is not dowable, 105, nole. TENANT by the curtesy, ;542. TE.VE.MENTS, a woman is dowable of all, 110. Meaning of the word, ibid. TENURES, when a woman is dowable of, 112, 123. TERM OF YEARS limited prior to the estate of the husband no impcdinienl to Dow- er, 77. So of an interposed term of years between tiie freehold oiid inhcntaoc« of the husband, ibid. TIME no bar to a writ of Dower, 311. TITHES, a woman is dowable of. 111. How to be endowed of, 'Shi TRUSTS. See Equitable Estates. VOUCHER in Writs of Dower, 275, 27<;, 298. USES, no Dower of, before the statute of uses, 125. • to prevent Dower, observations on, 83. WAIVER of right to be endowed, what amounts to, 214. WARRANTY, no bar to Dower, 315. by tenant in Dower, 3til. — on assiijfnment of Dower, nature of. 27.). — . See Recovery. WASTE, what is, by dowress, 357. remedies of reversioner for, 359. r.u. —^i «f ii^ WESTMINSTER AHBEY, a woman is dowable of thecuitody oftUe gaol ol, 113. WINCHESTER, Dower i)arre3. \Nri of "g»>t of I^wer.^ Against whom a writ of Duwer may be br.M.-ht, -'s... Procc- oo. JKi. PU»d- ings in, 2"^7. Judgment in, 21K Dumagea in, 301. of error in Dower, 310. . of admeatjurcmcut of Dower, 273. THE END. BRARy R LAWLIBRAKT UNIVERSITY OF CALIFORNIA LOS ANGELES ® AA 776 905