Delaney v. Manshum

146 Mich. 525 | Mich. | 1906

Grant, J.

{after stating the facts). Complainant is entitled to dower in the 40 acres. She is also the owner of the narrow strip of land as the surviving tenant by the entirety. Counsel for appellants in his brief says that there are two legal questions involved:

1. Can the defendants be enjoined from cutting the timber and wood on the 40 ?

3. Can defendants be enjoined from using the narrow strip for a passage ?

Both must be answered in the affirmative. The widow may maintain suit at law without waiting for the assignment of dower. Moody v. Seaman, 46 Mich. 74. If she may do this she may bring suit in equity without joining the other tenants to restrain the commission of waste.

No contract of sale or conveyance made by the husband without the signature of the wife will operate to deprive her of her dower. Richmond v. Robinson, 12 Mich. 193. The right of dower attaches to all the realty. Growing trees are as much a part of the realty as the soil in which they grow, the clay, stone, mineral, and other valuable deposits beneath the surface. Stout v. Keyes, 2 Doug. (Mich.) 184; Williams v. Hyde, 98 Mich. 152. The widow is entitled to dower in them all. In re Seager’s Estate, 93 Mich. 186. This right of dower will be jealously guarded by the courts. Bear v. Stahl, 61 Mich. 203, 214.

Whatever right the husband may have to sell and dispose of any part of the realty, trees, gravel, clay, or minerals, during his lifetime, while his wife’s right of dower is inchoate, all rights of the vendee in such contracts cease with the death of the husband, unless the wife joined in the conveyance. Many lands are valuable mainly for timber, minerals, etc. If defendants’ contention be sustained as the law, it would result in depriving widows of their dower in the most valuable part of realty. The Michigan Elm Hoop & Lumber Company and the defendants well understood that when they were buying these trees they were buying realty. They knew that the wife of Mr. Delaney had the right of dower. If they wished to get a valid title to any part of the realty, their only way was to secure a conveyance from the complainant.

Inasmuch as the defendants have no occasion to enter upon this land, except under the contract, it becomes unnecessary to discuss the other question.

Decree is affirmed, with costs.

Carpenter, C. J., and McAlvay, Blair, and Moore, JJ., concurred.