Stevens v. Owen

25 Me. 94 | Me. | 1845

The opinion of the Court was drawn up by

Whitman C. J.

The first question presented is, as to the construction to be put upon the language used by the demand-ant in the deed made by her and her husband to the tenant. The deed, on the part of her husband, conveys the premises in fee, with a general warranty. She, in the conclusion of it, says, “ in token of her free consent” she signs and seals it. This is supposed by the tenant to import a relinquishment of dower; and, if this was not intended to be the effect of what she did, it will be difficult to understand why she should so have executed the deed. It was otherwise an unmeaning and useless ceremony. Her husband had no other reason for having her seal and signature to the deed.

But this mode of barring wives of their right of dower has been looked upon with some jealousy. It was unknown to the common law ; and is supposed to have crept into use from a misinterpretation of an ancient statute. Powell & ux. v. M. & B. Man. Co. 3 Mason, 347. It lias, therefore, been considered, that the language used by the wife, to bar her of her right of dower, should be explicit, so that she could not misunderstand its import. Very little, if any thing, is to be. left to inference. Stearns on Real Actions, 289; Catlin v. Ware, 9 Mass. R. 218; Lufkin v. Curtis, 13 ib. 233 ; Leavitt v. Lamprey, 13 Pick. 382; Learned v. Cutler, 18 ib. 9; Hall v. Savage & ux. 4 Mason, 273.

Mr. Justice Wilde, in Learned v. Cutler, in delivering the opinion of the Court, remarks, that the wife “must not only join with her husband in a deed of conveyance of the land, by executing the deed, the deed being made by him, but the deed must contain apt words of grant or release on her part.” It is very evident in the case at bar that the deed contains no such apt words. It contains only her consent to the execution of the deed.

In Hall v. Savage ux. the language of Mr. Justice Story, is to the same effect. It was in reference to these words in a deed executed by the wife, “ I agree in the above conveyance,” which are certainly as cogent to prove a relinquishment of dower as those in the deed of the demandant. Agreeing to a conveyance is certainly equivalent to a free consent, especially when, as in this case, it is not stated to what the free consent has relation. This learned Judge expresses himself as follows, “ The rule of law appears to me to be plain, that the wife cannot release her dower except there be apt words to express such intention. Doubtful words ought never to be construed to have such an effect.”

The other point relied upon in defence is, that there were no rents and profits derivable from the land at the time it was conveyed, and, therefore, that the demandant was not dowable thereof. This is predicated upon several decisions in Massachusetts, New Hampshire and Maine, that a widow is not dowable of wild lands, remote from, and not occupied with improved lands; and the reasons given for such a decision are supposed to be applicable to this case; one of which reasons is, that, from such lands, no rents and profits are derivable. The better reason, upon which those decisions must mainly depend, has reference to their being in such a state, that they could riot be made productive of any income without the commission of waste thereon. To assign dower, therefore, in such lands would be useless. If such lands had on them, as is sometimes the case, extensive natural meadows, which could be used to advantage, without the commission of waste, it remains to be decided that they would or would not be subject to dower; unless the provisions of the Revised Statutes can be considered as settling the question.

It should be borne in mind, that, at common law, the widow is entitled to have one third part of the lands of which her husband had during coverture been seized and possessed in fee, and as of freehold, set off to her use during life. 4 Kent, 35. But, in seeming derogation of this general principle, our courts have introduced a modification to the effect, that dower shall be assigned according to the rents and profits of the estate; and, hence, that lands in a wilderness state, and not used in connection with improved estates, and not being productive of rents and profits, are not subject to dower. This is the extent to which our decisions have gone. Conner v. Shepherd, 15 Mass. R. 154. If land be contiguous to, and in any manner used with, an improved estate, as for fuel, fencing, repairing, pasturing, &c. it forms no exception to the common law principle. It must be presumed, in such case, that there are rents and profits therefrom accruing, to which a right of dower would attach.

The report of the case by the Judge, who presided at the trial, shows that the demand is of dower in a part of a five acre lot of land, partially improved. The proposition in de-fence was to show, that the particular part of it, in which dower in this action is demanded, was overrun with bushes, and was not productive of rents and profits. But land may be cleared of bushes without committing waste, and thereby be rendered productive; and land covered with bushes is oftentimes useful for pasturage. The proposed proof was therefore rejected, and we think very properly. To admit of such proof, under such circumstances, would be the introduction of a further modification of the common law principle, not warranted by any former decision, and manifestly in violation of She just rights of those entitled to dower.

The default must stand, and judgment he entered thereon.