Randall v. Kreiger

DILLON, Circuit Judge.

This is a bill in. equity by Mrs. Randall to recover dower. The seizen was after the marriage, and the alienation by the husband (for it is conceded that the deed made by the attorney in fact binds the husband) was in 1S55. His death occurred in 1869.

The defendant’s counsel resist the claim for dower upon several grounds:— [On appeal to the supreme court, the decree of this court was affirmed. 23 Wall. (90 U. S.) 137.] NOTE. “The decided weight of authority is in favor of the doctrine that the right to dower may, at any time before the husband’s death, be enlarged, abridged, or entirely taken away.’-’ Per Wright, C. J., in Lucas v. Sawyer, 17 Iowa, 521 , where the authorities are cited. More particularly bearing on the ^principal case, see Frantz v. Harrow, 13 Ind. 507 (Galbraith v. Gray, 20 Ind. 290 .

1. Because, as they contend, the statute in force in 1850, when the alienation was made, only gave dower to non-residents in lands of which the husband died seized. Bov. St. 1851, p. 21!). S 21.

2. Because, as they contend, the .-joint deed of herself and husband, made by.the attorney under the power, had the effect, under the legislation existing at the time, to bar the dower.

3. Because, as the conveyance was by warranty, and as the plaintiff is the sole legatee and devisee under the will of her husband, and has claimed under it, she cannot, in equity, be allowed to maintain what is in effect a suit against the estate of her husband, since, if she'recovers her dower, his warranty is thereby broken, and his estate liable on the covenants in the husband’s deed, and this amount she will have to pay as the sole party interested in his estate.

As I do not place my judgment upon any of these grounds, I do not deem it necessary to examine them. I am of the opinion that the case falls within the curative or remedial provisions of the act of 1S57 (Laws 1857, p. 29), and that this act, having been passed before the right to dower became consummate by the death of the husband, is a valid exercise of legislative power.

This act provides as follows: “A husband and wife may convey, by their lawful agent or attorney, any estate or interest in any lands situate within the territory; and all deeds or conveyance of any such 'lands, whether heretofore or hereafter made under a joint power of attorney from the husband and wife, shall be binding, and shall have the same effect as if made by the original parties.”

If it be true, as complainant’s counsel insists. that the deed made under power of attorney to Smith was not effectual to bar her dower, by reason of her inability, under the state of the statute law, to appoint an attorney to act for her, this is cured by the express terms of the enactment of 1857, and the only question that can be made is as to its validity as respects prior conveyances.

Until the death of the husband, the right to dower is inchoate and contingent. It becomes consummate only upon that event. In my opinion, the better view is, that while the right remains inchoate, it is, as respects the wife, under the absolute control of the legislature, which may, by general enactment, change, abridge, or even destroy it, as its judgment may dictate. See Lucas v. Sawyer, 17 Iowa, 517 ,~ 521, and authorities cited. “So,” says Wright, C. J., in the case just cited, “the legislature may declare what acts of the wife shall amount to a relinquishment of her right of dower; or that her deed shall be effectual to bar the same.” Again, he says: “In measuring her right, we look to the law in force at the time of the husband’s death, for it is this event which ripens or makes consummate the prior right, which, so long as it rested upon the marriage and seizin, was inchoate only. If there was no law in force at that time giving her the right, then it is extinguished. She'cannot take under a law repealed prior to that time. And taking a mw then exist - ing, she must take it with its restrictions and limitations.”

It was competent, therefore, for the legislature to say, as respects all inchoate rights of dower, as it did say by the act of-1S57, that deeds executed under a joint power of attorney from husband and wife “shall be binding,” and. if binding, the claim of the wife here to dower is barred, for she joined in the power of attorney under which the deed was made Of the constitutionality of the enactment, there remains no question after the repeated decisions of the supreme court of the United States. See Satterlee v. Matthewson, 2 Pet. [27 U. S.] 380; Watson v. Mercer, 8 Pet. [33 U. S.] 88; 2 Scrib. Dower, 344-366; Cooley, Coast. Lim. 373-378.

Of the expediency and justice of the enactment resulting from the imperfect and confused state of the legislation respecting the mode of executing conveyances and re-linquishments of dower by non-residents. I have as little question as I have that it was an act which the legislature might lawfully pass. Bill dismissed.

NELSON, District. Judge, did not sit.