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

so long as it is vested upon the marriage and seisin, was inchoate only. If there was no law in force at that time giving her the right, then it is extinguished. She cannot take under a law repealed prior to that time. And taking under the law then existing, she must take it with its restrictions and limitations." (Per Wright, C. J., in Lucas v. Sawyer, 17 Iowa, 517; Ewing v. Noel, 9 Ind. 39, where cases are collected.) The doctrine of Lucas v. Sawyer is followed in Randall v. Kreiger, 2 Dill. 444, a case on the constitutional power to validate a sale of husband and wife, by attorney. (See, also, Frantz v. Howard, 13 Ind. 507; Galbraith v. Gay, 20 Ind. 290.)

The chief difficulties arise in cases where the husband has conveyed away the property during coverture, but the wife has not released her right to dower. Here it is held that the wife can claim only the dower allowed by law at the time of death, although a larger dower right may have been allowed by law at the time of conveyance.

But the rule does not work both ways, as the purchaser in such cases has vested rights from the time of conveyance. The wife cannot claim a larger dower than was then allowed by law, although the legislature may have enlarged the dower right between the conveyance and the husband's death.

Such a statute cannot have a retrospective operation so as to lessen the estate actually purchased by the vendee. (Davis v. O'Ferrall, 4 Green Ch. 168.) And so when land was sold on judicial sale, at a time when such a sale did not cut off the wife's dower, but subsequently and before the husband's death the law was changed, taking away dower in such cases, it was held that the wife could claim no dower. (Sturdevant v. Norris, 30 Iowa, 65.)

Another question is, in such cases whether the wife is to have one third of the value at the time of sale or

one third also of any increased value that may have accrued at the time of the husband's death.

In some states, as New York and Virginia, the widow is confined strictly to the value at the time of alienation. But in most states it is held that she can have the benefit of any general rise in the value of property, even if derived from surrounding improvements, but not of any improvements made by the alienee himself on that property. (See Tyler on Coverture, p. 538; 1 Washburn on Real Property, ch. 7, 25, pl. 22.)

At common law, dower attached only to legal estates. Many questions which arose respecting the precise interest in which dower could be claimed are done away with by statutes giving the wife dower în equitable as well as legal estates.

CHAPTER THE NINTH.

OF ESTATES LESS THAN FREEHOLD.

Of estates, that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance.

8

I. *An estate for years is a contract for the possession of lands [see note 35, page 253] or tenements, for some determinate period:* and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, and the lessee enters thereon. If the lease be but for half a year, or a quarter, or any less time, this lessee is respected as a tenant for years and is stiled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of. And this may, not improperly, lead us into a short 9 explanation of the division and calculation of time by the English law.†

The space of a year is a determinate and well-known period, consisting commonly of 365 days: for, though in [141] bissextile or leap-years it consists properly of 366, yet by the statute 21 Hen. III. the increasing day

a We may here remark, once for all, that the terminations of "-or" and "ee" obtain, in law, the one an active, the other a passive signification; the former usually denoted the doer of any act, the latter him to whom it is done. The feoffer is he that maketh a feoffment; the feoffee is he to whom it is made: the donor is one that giveth lands in tail; the donee is he who receiveth it: he that granteth a lease is denominated the lessor; and he to whom it is granted the lessee. (Litt. § 57.)

b Ibid. 58.

c Ibid. 67.

8 Previously, "happens."

9 Ninth edition reads, "digression, concerning." **Quoted, 17 Cal. 231; 92 N. C. 200.

+ Cited, to Mass. 325, showing that such estates are not real; 12 Met. 302; 94 Ill. 93; 95 U. S. 250; 5 Binn. 230; 9 Leigh, 448; 33 Am. Dec. 254; 100 Pa. St. 209; 8 Minn. 431