134 Iowa 210 | Iowa | 1907
On and for some time prior to August 14, 1888, the plaintiff herein was the wife of one David H. Fowler, who was then the owner of a quarter section of
The one question thus presented is whether husband and wife must unite in the same deed in order to efféct a release of the latter’s contingent right of dower. In a brief showing much industry and research, counsel for appellant has arrayed a large number of authorities for our consideration, many of which may fairly be cited in support of his proposition that at common law a joinder of husband and wife in the same deed was necessary to an effectual release of the wife’s right of dower; but modern innovations by statute and otherwise, upon common-law rules affecting the property rights of married women, have been so great and are of such radical character that the earlier precedents upon the subject are of but little value, save as matters of history. According to the ancient theory, the individuality and independence of the wife were so merged (or submerged, rather)
The wife’s deed under such circumstances, is not a grant or conveyance, in the legal sense of the term, though we frequently used those terms as applicable to her act. She has no estate in the land which she can grant or convey to another. She has at most a contingent interest, a possibility of an estate which may accrue to her in the event that she outlives her husband, and, while she cannot sell or convey it to another, she can release or relinquish it in favor of the owner of the fee, save only where the owner of the fee is her husband. Her relinquishment adds nothing to the quality of the estate of the fee owner, but it removes a burden or incumbrance therefrom. By enabling a married woman to engage in business in her own name, and to buy, sell, own, and control property as freely and effectively as her husband can do, our statute necessarily subjects her to the ordinarly rules of the law of estoppel, and when upon a sufficient consideration moving directly to her, or upon a consideration moving to her husband in the sale of the fee of his land, she, by deed or by formal release, relinquishes her dower right, she should be held estopped to say that, not
This court has had no case before it raising the question precisely as it is presented by the record now before us; but we have on several occasions considered questions involving principles which we think must govern our conclusion. For instance, it has several times been held that, till modified by the enactment of Code, section 3154, our statutes empowered husband and wife to enter into contracts with each other for the sale or relinquishment of their contingent rights in each other’s property. Robertson v. Robertson, 25 Iowa, 354; Poole v. Burnham, 105 Iowa, 622; McKee v. Reynolds, 26 Iowa, 578. In the last case, the court held that, even if the circumstances of the case made the release from husband to wife invalid as a contract, yet where the release has been executed, and the consideration paid, “ the law will estop the husband to disregard the agreement.” In the same case, Mr. Justice Dillon, who wrote the opinion says: “ Aside from the statute, it is a well-established rule that, a wife cannot relinquish her contingent right of dower, except by joining with her husband in a conveyance to a
The statutes of the several States bearing upon this subject and kindred subjects are quite dissimilar in terms, and most of the decisions of the courts of other jurisdictions are for that reason not in point with the instant case. In our judgment, to hold that a wife cannot effectively release her dower interest in land to the grantee of her husband, without joining the latter with her in the relinquishment, is to ignore the spirit and purpose of our statute, and revert to burdensome forms and restrictions which the law has long since outgrown. We do not overlook the objection that the instrument in this case is in form a conveyance or quitclaim;
The ruling of the district court is right, and the decree appealed from is affirmed.