Richardson v. Wyman

Appleton, O. J.

This is an action in which the demandant, the wife of the late Amos Wyman, deceased, seeks to recover dower in certain premises of which her husband was seized during coverture.

It is in evidence that on the thirteenth of May, 1856, Amos Wyman, by deed of release, conveyed the premises in which dower is demanded to his wife, the present demandant, and that on the fifteenth of June, 1858, said Wyman and wife, by deed of warranty of that date, conveyed the same to Henry L. Fox.

It further appears that the tenant, being a creditor of Amos Wyman, by virtue of a bond bearing date July 22, 1840, commenced a suit thereon, in which the premises, in which dower is demanded, were attached as the property of the debtor. The tenant recovered'judgment, and the execution issued thereon was fully satisfied by a levy on the premises in controversy, and the possession thereof given the tenant. The deed from Amos Wyman to his wife, and from them to Fox being fraudulent and void as to creditors, the tenant thereby became seized of the estate, upon which the levy was made, in fee.

Subsequently for the purpose of removing any claim upon his title thus acquired, the tenant commenced a suit in equity against Henry L. Fox and the demandant, in which the deed of Amos Wyman to the demandant and that of said Wyman and wife to said Fox were declared fraudulent and void, and the defendants in that suit were decreed to release them interest in the premises levied upon to the tenant, except the dower of Mrs. Wyman, whose rights as dowress were not thereby to be affected. Wyman v. Fox, 59 Maine, 100.

Amos Wyman having been seized of the premises in which dower is sought to be recovered, during the coverture of the demandant, and having deceased, she having made due demand is entitled to recover her dower, unless it has in some way been released, discharged, or merged in some greater estate.

*283 The tenant relies upon the deed of release of Amos Wyman to the demandant dated May 13, 1856, as a bar to her claim for dower, on the ground that her right to dower is merged in the fee then conveyed to her.

The wife has only an inchoate right of dower. Her future estate is contingent upon the precedent death of her husband. The possible estate may never ripen into an actual one. The deed to the demandant, upon which the tenant relies to defeat her dower, was fraudulent and void as to creditors and he, being a creditor, has avoided it. The deed to the demandant releasing to her the fee being avoided for fraud, the tenant would set it up as an existent estate to bar the dower to which she would otherwise be entitled. If no conveyance had been made by Amos Wyman to his wife, her right to dower would have been unquestioned. Beduced to its ultimate elements, the proposition is that a deed fraudulent and void as to the tenant, arid which has been avoided by him, may, after such avoidance, be set up by him as a valid and existent deed, for the purpose of defeating and destroying a right to which the demandant would unquestionably have been entitled, had’no such deed been executed. When a lesser estate is merged in a greater, the greater estate must be assumed as valid and continuing. There can be no merger when the estates are successive and not concurrent, nor where the greater estate is void and has been avoided. In Mallory v. Horan, 12 Abbott, (N. Y.) Pr. Rep., (N. S.) 289, where a husband by a deed in which his wife joined to release dower conveyed to a third person, who conveyed back to the wife, and subsequently both deeds were set aside as being fraudulent as to creditors, it'was held that the wife’s inchoate right of dower was not merged in the fee conveyed to her, so as to .prevent her from claiming it after the deed to her was set aside. So, in the case at bar, the tenant cannot set up one and the same deed as both valid and invalid. It having been avoided at his instance and for his benefit, it must so remain.-

Neither is the demandant barred of dower in consequence of the deed of her husband and herself to Henry L. Eox of the date- *284 of June 15, 1858, which was declared void as against the tenant. The dower of a surviving wife is not barred by a fraudulent deed in which she released dower, if the deed is set aside by the judgment of the court at the instance of creditors of the husband, Dugan v. Hussey, 5 Bush. (Ky.) 83; Lockett v. James, 8 Bush. (Ky.) 28. Where a wife joins with her husband in a deed conveying land, and thereby relinquishes dower, and a creditor of the husband afterward levies an .execution upon the land, during the life of the husband, and recovers it in a real action against the grantee, on the ground that the conveyance was fraudulent and void as against creditors, the wife is restored to her rights, and may recover dower of such creditor, or of his assigns. Robinson v. Bates, 3 Metc., 40 .

The tenant acquired the fee by his levy. The decree in the case of Wyman v. Fox, 59 Maine, 100, specially excepted the dower of the demandant. Judgment for the demandant, that she recover her dower.

Cutting, Dickerson, Barrows, Danforth, and Yirgin, JJ., concurred.