13 Barb. 50 | N.Y. Sup. Ct. | 1852
It was not claimed upon the argument, that effect should be given to the certificate of the acknowledgment of the deed from the plaintiff to David and George Elwood. It was conceded that the original certificate was clearly defective, and insufficient to authorize the reading of the deed in evidence without further proof, and that the amendment of the certificatfe by the commissioner, several years after his term of office had expired, was a nullity. The only question, therefore, upon this branch of the case, is whether the due acknowledgment of the execution of the deed by the plaintiff—a
The plaintiff is not therefore barred of her dower by the deed to David and George Elwood; and the only remaining question is as to the extent of her right. The plaintiff claims to be entitled to dower in the whole premises, while the defendant insists that she is not entitled to be endowed of the 80 acres in which Mrs. Joyce was entitled to dower, upon the principle that dos de dote pete non debet. Dower cannot be recovered upon dower, and this maxim is laid down by all the elementary writers treating upon the subject, and is well settled upon authority. (Reeve’s Dom. Rel. 58. 4 Kent’s Com. 64. Bac. Ab. Dower and Jointure, E. Dunham v. Osborn, 1 Paige, 634. Rey
The release of Mrs. Joyce to the defendant, of her dower in the eighty acres, is claimed to be equivalent, for all the purposes of this defense, to an actual assignment of the dower. It cannot be said to be a conveyance of an equitable estate or interest in the premises, which might be prevented from merging in the legal title, to promote equity. The right to dower is a legal right, whether it remains in action, or has been reduced to possession. The transaction between Mrs. Joyce and the defendant was an extinguishment of her right of dower, not an assignment of it to the widow, or a conveyance of it to the defendant. The widow released to the defendant her right, it then being a right
W. F. Allen, Hubbard and Pratt, Justices.]
The judgment must be affirmed.