| Superior Court of New Hampshire | Dec 15, 1854
The judgment recovered against the complainant by the defendant in February, 1842, not having been reversed, settled the question of the defendant’s right to dower in the farm. It was no longer a contingent matter, dependent ■ upon .the life of any one; nor á doubtful matter, resting upon the uncertain issue of a contested suit at law. All that remained for the defendant to do, after the judgment, in order to enjoy her rights, was to have the dower assigned and set off to her by the. officer. Rev. Stat. ch. 205, §§ 5, 6. Her title to dower in the premises was settled.
Here, then, was a' right in real estate determined and fixed ; and which could not be parted with, except by clear and unequivocal legal acts. And the question is, was what was done, as disclosed by the bill, answer and evidence, a relinquishment by the defendant of all right in the premises as acquired by the judgment? Ought she to be estopped from setting up any claim to the land held by virtue of that judgment?
On the 14th of April, 1842, a reference was entered into between Daniel Burleigh and wife, who were the complainant’s grantors and warrantors of the premises, .on the one part, and John Davis, as agent of the defendant on the other part, in regard to. the defendant’s rights ; a bond was executed by Burleigh and wife, and an award was made; and the bill charges that the defendant accepted the same in full satisfaction of her claim for dower in the premises; and that at the time of the arbitration it was agreed to make and execute such writings as would carry into effect the agreements, but that by mistake, misfortune and accident, no release of dower was then or has since been made by the defendant to the complainant. This agreement to execute a release of dower is explicitly denied by the answer, and the evidence does not sustain the allegations of the bill in
What, then, was done by the defendant on the 14th day of April, 1842, and subsequently, which could bar her rights and cause us to issue a perpetual injunction against her scire facias now pending in the common pleas ? As before suggested, a bond was executed by Burleigh and wife to the defendant, of the character and in the terms set forth in the evidence. About this there is no controversy. A hearing was had by the referees, and an award made ; and the defendant acquiesced in the award so long as payments were made according to its requirements. Now, although the defendant never signed any agreement to refer the matter, nor her agent for her, and in fact signed no papers whatever, yet we think that her subsequent receipt of the twenty-five dollars a year, according to the award, was an acquiescence in what was done, and binds her to the submission and award.
What, then, was submitted, and what was the award ? The complainant attempts to show by parol evidence that the referees were to decide what Mrs. Chamberlain should receive in full discharge of all her rights in the premises, and of all claim upon Furber for dower; and the testimony of his highly respectable witnesses tends to sustain him in this position. But, on the other hand, Davis testifies that such was not his understanding of the matter, and that he had no authority to make any such agreement. It is to be-considered, also, that several years have elapsed since the-transaction took place, and allowance must be made for the
But although it may in some instances be competent to show by parol evidence that matters are passed upon by arbitrators which are not included in the submission, or that those embraced in the submission are not all considered, yet that is not the point here. A bond was drawn embracing the submission. It was witnessed by the counsel of the
What, then, was submitted to these arbitrators to decide, and what does their award require ? We have carefully considered this question, and have all of us compared our views in regard to it; and after the best examination and consideration that we have been able to give it, our conclusion is, that the submission and award amount to this and no more, viz. that Mrs. Chamberlain should receive the twenty-five dollars a year, not in lieu and discharge of her dower in the land, but in the nature of rent for its use.
The submission was not, to find how much she should be paid .in full for her dower, or how much should be given her for her rights in the land, but to see what sum she should receive annually instead of having her dower assigned and taking possession of the same; and the bond which was given was for Furber’s advantage, not hers. She preferred to have an annual sum for the use of the dower, instead of having it assigned, and being to the trouble of looking after it and carrying it on ; Burleigh, to relieve himself from a suit upon his covenants, agreed to pay that sum; and so long as it was paid, she was bound to receive it. But this was not to be in full discharge of all her rights in the
And the course which was pursued by the parties at the time is in perfect keeping with this view of the matter; for it can hardly be presumed that, had it been intended that the bond should be in full satisfaction of all claim to the land, the judgment for dower would not then have been discharged, or some release, or writing to that effect made.
Entertaining these views, it becomes unnecessary to examine the question whether, had the submission been as contended by the complainant, the award would have concluded the defendant’s rights.in the premises, without the execution of some written release or memorandum in writing signed by her.' Rev. Stat. eh. 180, § 7. Were it necessary to investigate this question, it might, perhaps, be found, that a distinction should be made between a contingent and an uncertain right of dower, and one that had become fixed by the judgment of a court. It might be necessary, also, to inquire into the nature of the submission, and to what extent it could be binding so as to affect rights in real estate; the submission not being between the parties to this bill, nor between the parties whose rights were to be affected.
The orator complains that his remedy upon his covenants of warranty has become worthless in consequence of the present insolvency of Burleigh, and of the dec-ease of his wife. But the hardship of the case, either way, cannot vary the construction to be put upon the written submission. Jf5 however, that were to be considered, it appears to us that the insolvency of Burleigh would bear quite as severely upon an old lady, eighty-three years of age, as this defendant is said be. who had been induced to take an uncertain bond for certain and fixed rights in real estate, as upon the complainant, whose duty it was to look to his title and the solvency 'of his grantors when he took the deed from them.
But/these are matters that cannot affect this decision. Our opinion is that the bond was not taken in full satisfac