Saunders v. Blythe

Barclay, J.

Plaintiff's action is for the assignment of dower in lands formerly owned by her husband, W. D. Saunders. '

The pleadings need not be recited. The controlling facts are mutually admitted, except one in regard to which the difference will be indicated later.

The trial court found for defendants, and plaintiff appealed in due course.

The land in which plaintiff seeks to assert a right of dower was conveyed by her husband alone, by general warranty deed, to defendants, July 16,1885, forth© consideration of $2,500, of which $1,600 was paid in cash, and the balance was to be paid by the grantees in discharging a mortgage on the property in favor of Mr. Kellogg. Defendants at once went into possession of the land and made improvements thereon.

In March, 1886, shortly before the death of her husband, plaintiff signed a deed of release and quitclaim to these defendants of her right, title and interest, in the land. This release was formally acknowledged by plaintiff, but her husband was not a party to it. It. .was not delivered to the defendants during his life, but remained under plaintiff's control, in custody of her son. After the death of Mr. Saunders, this son delivered to defendants the release upon their payment of the mortgage debt to Mr. Kellogg as originally agreed between them and Mr. Saunders. The important disputed fact in the case is whether this delivery by plaintiff’s son was authorized by her On that point the *5 testimony is conflicting; but the trial judge found that it was so authorized, and should be regarded as her own act. The court announced that conclusion in an opinion which reviews the testimony with care, and has furnished us valuable aid in reaching a decision on the merits of the whole case.

The result of this appeal turns on the effect to be given to the plaintiff’s release, signed during her coverture, but delivered on her behalf to the defendants after she became a widow. The defendants, be it noted, were in possession of the land, and in position to receive a release without a prior assignment of her dower.

The release recited only the nominal consideration of $1; but it was under seal, and became an executed contract upon delivery and acceptance. As such, no other consideration was necessary to support it, so far as concerns the legal rights of the parties thereto; and no equities are involved or have been invoked in this case.

The acknowledgment by plaintiff alone, during the lifetime of her husband, must be discarded as of no validity in the circumstances; but, as between the immediate parties (whose rights alone are now in question), no acknowledgment was necessary to make the release operative. It took effect from its delivery, and the fact that it was signed while plaintiff was under a disability does not vitiate it.

In Zouch v. Parsons (1765), 3 Burr. 1805, Lord Mansfield approvingly quoted from Perkins thus: ‘ ‘If a married woman deliver a bond unto me, or other writing, as her deed, this delivery is merely void; and, therefore, if, after the death of her husband, she, being single, deliver the same again unto me as her deed, the second delivery is good and effectual.”

*6 And he repeated the quotation later in Goodright v. Straphan (1774), 1 Cowper, 201.

The defendants’ position in the ease at bar does not rest upon the theory of plaintiff’s confirmation, during widowhood, of a void act done during coverture. The deed of release was not delivered until she was a widow; and, though it was dated on a day within the lifetime of her husband, the true time of delivery was properly open to investigation, and was shown to have been much later, when she was fully capable of acting for herself with binding force.

The judgment of the trial court was in accordance with ' these views.. It is affirmed.

Chief Justice Shebwood, Black and Bbace, JJ., concur.