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Mr. Hargrave observes that instead of distributing all the several titles to land under the heads of purchase or descent, it would be more accurate to say that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law; and under the latter to consider, first descent, and then escheat, and such other titles not being by descent as yet, like titles by descent, accrue by mere act of law.
So we learn from Lord Coke (1 Inst. 2 b) that if an alien purchases lands he cannot hold them; the king is entitled to them: though in such case the king plainly takes neither by purchase (according to Mr. Hargrave's explanation) nor by descent. Again (1 Inst. 3 b), Lord Coke says: "A purchase is when one cometh to lands by conveyance or title; and disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not purchases." And it is equally clear they are not acquisitions by descent. And (in 1 Inst. 18 b) Lord Coke gives other instances of titles which, in strictness, if we admit Mr. Hargrave's explanation, can be referred neither to purchase nor descent, as escheats and tenancy by the curtesy or in dower. Upon the nature of title by escheat, see note 45, post, to page 244.
(31) If the wife be an idiot, the husband shall not be tenant by curtesy, page 127.
If the wife be such an idiot as to be incapable of seisin - even of actual seisin - it is hard to see how a valid marriage with her could exist. (Bishop on Married Women, 483.) Any degree of idiocy short of this could hardly prevent title from being vested in her by descent, if not by gift; and in most American states this would be enough to give curtesy. Nowhere in this country is there such a conflicting seisin as the king has by his prerogative in England.
(32) The seisin of the wife must be an actual seisin [to give the husband curtesy], page 127.
The difference between this requirement and that for a wife's dower, when "seisin in law of the husband will be as effectual as a seisin in deed" (p. 132), has often been spoken of as one of the arbitrary and technical rules of the antient law. It is on the contrary a proof of its equitable character. It was in the husband's power, not in the wife's, to reduce the seisin in law to an actual seisin. It was his duty to do this for his wife's sake and interest. If he neglected it, he was justly made to take the consequence by losing curtesy. But to cut off his wife's dower, if the husband omitted to take actual seisin where he had seisin in law, would not only punish her for his neglect, but would give him a chance to rob her of her dower for the benefit of his own heirs. This is the meaning of Blackstone's remark, page 132, on the "power" of each spouse.
(33) The husband by the birth of the child becomes tenant by the curtesy initiate, page 128.
The distinction between the husband's enjoyment of the wife's freehold before the birth of an heir, and his own freehold in her lands after that event, is clearly marked in the old books; but has often been overlooked of late, especially in reasoning from the common law to the effect of recent statutes taking away the husband's powers over the wife's property; e. g., Hatfield v. Sneden, 54 N. Y. 280. It was the birth of issue, not the death of the wife, that vested the husband's estate for his own life. Thus, after such birth the lord accepted his homage, which he could not safely do before that time, when the husband's interest might terminate before his own death. (F. N. B. 257.)
(34) Tenant in dower is when the husband is seised of an estate of inheritance and dies, page 129.
In most if not all the United States dower and curtesy
no longer depend on the common law, but are regulated by statute. (1 Washburn, ch. 6, 1, pl. 5.)
Where, as in most western states, the statute makes no reference to the common-law rules, but gives the widow or surviving husband a certain share of the decedent's real estate, precisely as other shares are given to his children or other heirs, it becomes a nice question whether the common-law principles relative to the estate of dower and curtesy have any application to such shares, or whether they are to be regarded as merely distributive shares of the real property, governed by the same principles with other inheritance. E. g., is dower to be favored in such cases?
The Supreme Court of Indiana has carried the tendency of recent law to its logical extent by holding that the wife takes like any other heir.
"Tenancies in dower, having been abolished by statute, no longer exist in this state. The rights of a surviving wife in the real estate of her husband are those created by statute alone." (Gaylord v. Dodge, 31 Ind. 41.)
"The widow takes her interest as such under our statute, in the lands of her deceased husband, not as dowress, but as an heir takes, by descent from her husband." (Fletcher v. Holmes, 32 Ind. 497; Mock v. Watson, 41 Iowa, 241.)
But on the whole, the late cases seem to regard this as essentially the same estate with common-law dower, except so far as modified by express statutory provisions.
The inchoate right of dower is so vested in the wife as against the husband, immediately on the marriage (or acquisition of the property afterwards), that no conveyance or other act of the husband can deprive her of it. In some states, however, a judicial sale, whether founded on a general judgment against the husband, or on a mortgage or trust deed made by him, will cut off her right of dower. And a sale by advertisement
or statutory foreclosure will be equivalent in this respect to a judicial sale. And if the mortgage is foreclosed in the husband's lifetime it will make no difference whether the wife joined in it or not. (Sturdevant v. Norris, 30 Iowa, 65.) But if the mortgage is not completely foreclosed and the property sold in the husband's life, then the wife's dower will attach to the cntire property, or to the surplus over the mortgage, as the mortgage is executed by husband alone, or by husband and wife.
Where the wife unites with the husband in the mortgage of his real estate, and the property is sold under foreclosure, she is entitled to dower in the surplus only (Smith v. Jackson, 2 Edw. Ch. 28; Titus v. Neilson, 5 Johns. Ch. 452; Tabele v. Tabele, 1 Johns. Ch. 45; Jennison v. Hepgood, 14 Pick. 345; Hartshorne v. Hartshorne, 1 Green Ch. 349; Harrow v. Johnson, 3 Met. 578; Bank of Commerce v. Owens, 31 Md. 320; 1 Am. Rep. 60.) And where the holder of the equity of redemption redeems, the widow can have dower only by contributing her portion of the mortgage debt. (Swaine v. Penne, 5 Johns. Ch. 482.) Though she unites in the mortgage only as surety for her husband's debt, the inchoate right of dower is not her separate property in such a sense as to entitle her to have the mortgage redeemed by her husband's estate for her benefit, so as to leave her dower clear. (Hawley v. Bradford, 9 Paige, 201; Herichman v. Stiles, 1 Stock. Ch. 454; Bank of Commerce v. Owens, supra.)
A wife cannot relinquish her contingent right of dower directly to her husband, nor a husband his corresponding right to the wife. Either may relinquish by joining with the other in a conveyance to a third party; and probably by a separate release to the purchaser, made after the sale (though such separate releases were formerly held invalid in some cases). But the wife cannot disannex or dissociate her contin
gent dower from the real estate to which it attaches, and bargain and sell and convey it as a separate and independent interest to a third person, or to her husband. (2 Scribner on Dower, 290; Carson v. Murray, 3 Paige, 483; White v. Wagner, 25 N. Y. 328; Winans v. Pebbles, 32 N. Y. 423; Simms v. Hervey, 19 Iowa, 272.)
The law does not recognize the right of husband and wife during coverture to make valid and binding contracts to convey or release the dower right of one to the other. By this we do not mean to say that if such contracts are fairly made and acted on, equity will not in some instances treat them as valid, or estop the husband and wife from contesting them; especially when connected with an agreement to separate. (Per Dillon, C. J., in McKee v. Reynolds, 26 Iowa, 578, explaining Blake v. Blake, 7 Iowa, 46.)
Where married women have obtained by statute enlarged powers of dealing with their own property, a distinction has been made between such powers in respect to property held in her own right, and in respect to her interest in her husband's property (e. g., in matters of dower, homestead, etc.), it being held that with respect to the last the statutes have no effect, but she remains under common-law disabilities.
In Ring v. Burt, 17 Mich. 465, 1869, this distinction was very clearly expressed, and it was held that a wife could not convey, encumber, or in any way affect by contract her interest in the homestead except by joining in a deed with her husband. Her agreement in respect to such property is simply void.
But the right to dower is not vested until the husband's death, as against the power of the legislature to abridge or take it away. "In measuring her rights we look to the law in force at the time of the husband's death, for it is this event which ripens or makes consummate the prior right, which