| Or. | Dec 15, 1861
The first exception of importance, taken at the trial, was to the instruction of the judge to the jury in the following words: “ That the plaintiff was entitled to recover upon proving that she and her husband took possession of the property under a deed, unless the defendant showed he had a better title.” In this instruction there was error. Farnum was in possession, deriving his title through Loomis, who conveyed to him by a quit-claim deed, and this instruction of the court, to the effect that the defendant, Farnum, must show a better title than the husband of the demandant, or the demandant must recover, was to decide in effect that the defendant was estopped from showing that Loomis was never seized of an estate of which the demand-
It is to be borne in mind that, in this form of conveyance, tbe grantor does not assume to convey tbe land; only bis interest in it. He did not undertake to convey an indefeasible estate, nor did be obligate himself to warrant or defend it against any claims or demands, except those derived through himself. Looking at tbe plain and obvious meaning of sucb an instrument, tbe grantor must be deemed to have referred only to existing claims or incumbrances, and not to any title be might afterwards acquire by purchase or otherwise from a stranger. (Comstock v. Smith, 13 Pick., 116; Wright et al. v. Shaw, 5 Cush., 56; Watkins v. Holman, 16 Peters, 25.)
There is another reason equally conclusive of this particular question. It is tbe widow of Loomis who brings this action; and bad Loomis conveyed to Huntingdon, and Huntingdon to Farnum, tbe defendant, by deeds of general warranty, and by which Loomis would have been estopped from denying that be ever bad any sucb estate, or that title passed by bis deed, tbe widow could not have been affected by it. His covenants would not have bound her, nor would she have been estopped by them. She would have been neither a party nor a privy, but a stranger to tbe deed. It follows that she would not have been concluded, though her husband was; and by tbe rules of mutuality, if she would not have been bound by it, neither should it estop tbe grantee.
Upon every principle of mutual right, then, tbe defendant below ought not to be estopped from showing what estate, if
As the title of Loomis, the husband of the demandant, is folly set out in the record, it becomes necessary to consider another question which was raised in the argument and pressed upon the attention of the court. The question has been considered with some care, for the reason that it is not only decisive of the whole cause under consideration, but fixes a rule of adjudication for the courts of this State upon a point, about which there has been much controversy and no little uncertainty.
By the first section of an act relating to estates in dower (Oregon Statutes of 1855,p. 105), it is provided, “ that a widow shall be dowered of all the lands whereof her husband. was seized of an estate of inheritance, at any time during the marriage, &c.” Was Loomis in his life time, and during his coverture, clothed with an estate of inheritance in the lot, out of which the demandant claims dower ? “ Every estate of inheritance is fee simple or fee tail.” (1 Com. Dig., Estates, A., 1; 1 Bouv. Law, D. ; Inheritance, 679.)
“ The highest estate in lands known to the American law is a fee simple. A fee simple is a pure inheritance or absolute ownership, clear of any qualification or condition, or a time in the land without end, and upon the death of the proprietor gives a right of succession to all his heirs.” (1 Hilliard, B. P., pp. 35-8.)
For several reasons it is impossible that Loomis possessed such a title as to fill the terms of these definitions. Stark, the original claimant of the land under the donation act, held but an inchoate title, liable to be defeated by non-compliance
The deed from Stark to Molthrop was never acknowledged, and the deed from Molthrop to Loomis was not sealed. This deed, under the most favorable circumstances, would convey no more than an equity, liable to be defeated by sale to an innocent purchaser, by deed duly executed and recorded. Hilliard, in giving the common law definition of dower, says: “ When a man is seized during coverture of an inheritance in lands and tenements, which by possibility any issue of his wife might inherit, such wife shall hold after his death one-third part of these lands and tenements for her natural life, as an estate in dower.” It will be perceived that the statute of this state before quoted is very much in harmony with this definition. Much of the apparent confusion in the authorities has arisen from the innovation of the statute laws of the several States upon this rule of the common law.
So Chancellor Kent: “ The husband must be seized of a freehold in possession and of an estate of immediate inheritance in remainder or reversion to create a title to dower. The freehold and the inheritance must be consolidated, and be in the husband simul et semel, during the marriage, to render the wife dowable.” (4 Kent Com., 39.)
In England by statutes 3 and 4, Wm. IV, n. 105, dower was extended to equitable inheritances, and mere right of entry without seizin. As before stated, similar statutes have been passed in many of the States, and the decisions of their courts have been in conformity therewith. In Hamilton v. Hughs, 6 J. J. Marshall, 581, in a case much like the present,- the court, in deciding the principal point, remarked: “ but we
Upon the general question, then, we are of the opinion that the defendant is not entitled to dower in the lot mentioned in the complaint; and we are further of the opinion that, under the statute of this State, dower will not attach to a mere equity.
Judgment is reversed.