(b) Stat. 32 Hen. VIII. c. 28.
(c) Sect. 3.
(d) Ante, p. 55.
(e) Stat. 19 & 20 Vict. c. 120, s. 32. See ante, p. 26.
Hitherto we have seen the extent of the husband's interest, and power of disposition, apart from his wife. If land should be settled in trust for the separate use of the wife, with a clause restraining alienation, we have seen that neither husband nor wife can make any disposition. But, in all other cases, the husband and wife may together make any such dispositions of the wife's interest in real estate as she could do if unmarried. The mode in which such dispositions were formerly effected was, by a fine duly levied in the Court of Common Pleas. We have already had occasion to advert to fines, in respect to their former operation on estates tail (h). They were, as we have seen, fictitious suits commenced and then compromised by leave of the Court, whereby the lands in question were acknowledged to be the right of one of the parties. Whenever a married woman was party to a fine, it was necessary that she should be examined apart from her husband, to ascertain whether she joined in the fine of her own freewill, or was compelled to it by the threats and menaces of her husband (i). Having this protection, a fine by husband and wife was an effectual conveyance, as well of the wife's as of the husband's interest of every kind, in the land comprised in the fine. But, without a fine, no conveyance could be made of the wife's lands; thus, she could not leave them by her will, even to her husband; although,by means of the Statute of Uses (k), a testamentary appointment of lands, in the nature of a will, might be made by the wife in favour of her husband, in a manner to be hereafter explained (l). And in this respect the law still remains unaltered, although a change has been made in the machinery for effecting conveyances of the lands of married women. The cumbrous and expensive nature of fines having occasioned their abolition, provision has now been made by the act for the abolition of Fines and Recoveries (m), for the conveyance by deed merely of the interests of married women in real estate. Every kind of conveyance or disclaimer of freehold estates which a woman could execute if unmarried may now be made by her by a deed executed with her husband's concurrence (n): but the separate examination, which was before necessary in the case of a fine, is still retained; and every deed, executed under the provisions of the act, must be produced and acknowledged by the wife as her own act and deed, before a judge of one of the superior courts at Westminster, or of any county court, or a master in Chancery, or two commissioners (o), who must, before they receive the acknowledgment, examine her apart from her husband touching her knowledge of the deed, and must ascertain whether she freely and voluntarily consents thereto (p). A recent statute (q) removes doubts which might arise, in consequence of any person taking the acknowledgment being an interested party.
Husband holding over is a trespasser.
(f) Stats. 19 & 20 Vict. c. 120, s. 33; 21 & 22 Vict, c 77, s. 8. (g) Stat. 6 Anne, c. 18, 8. 6.
(h) Ante, p, 47.
(i) Cruise on Fines, 108, 109.
Present pro-visionn for con-veyance by married women.
The wife must acknowledge the deed.
(k) 27 Hen. VIII. c. 10, ante, p.. 153.
(l) See post, the chapter on Executory Interests.
(m) Stat. 3 & 4 Will. IV. c. 74; ante, p. 47.
(n) Sect. 77; Stat. 8 & 9 Vict. c. 106, s. 7.
(o) Stats. 3 & 4 Will. IV. c. 74, s. 79; 19 & 20 Vict. c. 108, s. 73.
(p) Stat. 3 & 4 Will. IV. c. 74, s. 80.
(q) Stat. 17 & 18 Vict. c. 75.
2. As to the rights of the wife in the lands of her husband. We have seen that, during the coverture, all the power is possessed by the husband, even when the lands belong to the wife, except in cases which fall within the Married Women's Property Act, 1870; and of course this is the case when they are the husband's own. After the decease of her husband, the wife however becomes, in some cases, entitled to a life interest in part of her deceased husband's lands. This interest is termed the dower of the wife. And by the act of parliament for the amendment of the law relating to dower (r), the dower of women married after the 1st of January, 1834, is placed on a different footing from that of women who were married previously. But as the old law of dower still regulates the rights of all women who were married on or before that day, it will be necessary, in the first place, to give some account of the old law before proceeding to the new.
Dower, as it existed previously to the operation of the Dower Act, was of very ancient origin, and retained an inconvenient property which accrued to it in the simple times when alienation of lands was far less frequent than at present. If at any time during the coverture the husband become solely seised of any estate of inheritance, that is fee simple or fee tail, in lands to which any issue, which the wife might have had, might by possibility have been heir (s), she from that time became entitled,onhis decease, to have one equal third part of the same lands allotted to her, to be enjoyed by her in severalty during the remainder of her life (t). This right having once attached to the lands, adhered to them, notwithstanding' any sale or devise which the husband might make. It consequently became necessary for the husband, whenever he wished to make a valid conveyance of his lands, to obtain the concurrence of his wife, for the purpose of releasing her right to dower. This release could be effected only by means of a fine, in which the wife was separately examined. And when, as often happened, the wife's concurrence was not obtained on account of the expense involved in levying a fine, a defect in the title obviously existed so long as the wife lived. As the right to dower was paramount to the alienation of the husband, so it was quite independent of his debts, - even of those owing to the crown (u). It was necessary, however, that the husband should be seised of an estate of inheritance at law; for the Court of Chancery, whilst it allowed to husbands curtesy of their wives' equitable estates, withheld from wives a like privilege of dower out of the equitable estates of their husbands (x). The estate, moreover, must have been held in severalty or in common, and not in joint tenancy; for the unity of interest which characterizes a joint tenancy forbids the intrusion into such a tenancy of the husband or wife of any deceased joint tenant: on the decease of any joint tenant, his surviving companions are already entitled, under the original gift, to the whole subject of the tenancy (y). The estate was also required to be an estate of inheritance in possession; although a seisin in law, obtained by the husband, was sufficient to cause his wife's right of dower to attach (z). In no case, also, was any issue required to be actually born; it was sufficient that the wife might have had issue who might have inherited. The dower of the widow in gavelkind lands consisted, and still consists, like the husband's curtesy, of a moiety, and continues only so long as she remains unmarried and chaste (a).