How can seisin be predicated of the plaintiff's husband with respect to the lands purchased through the use of his moneys, but never conveyed, nor agreed to be conveyed, to him? The plaintiff, certainly, had no control over the use which her husband chose to make of his personal estate. That was his absolutely and she had no interest in it which she could assert; beyond a claim upon him for the support of herself and their children. He might have chosen to use it in the acquisition of any of the many kinds of personal property, without any right on the part of his wife to complain of, or to interfere in, his acts. Instead of confining his use of his moneys to purchases of personal property, or instead of putting them into land and of taking title to himself, he has adopted methods set forth in this complaint for its use, and they were effectual to prevent the vesting in him of any legal estate in the realty, although paid for with his moneys. He, undoubtedly, intended to prevent his wife from acquiring any dower right in the real property, in the purchase and sale of which he was dealing through his friend; but, unless he was actually seised, or unless he had such a seisin at law as would entitle him to its possession, it is difficult to see how his wife could claim that she ever gained any dower interest. Her complaint seems to concede that her husband acquired no legal title, unless through the agreement alleged to have existed between him and Lewis. But that agreement is not one which could operate to vest in her husband any right to the actual possession of the property conveyed to Lewis. The agreement is purely executory in its nature and, if not complied with by Lewis, would only have given to Phelps a cause of action in damages for its breach. Taken at its strongest meaning, it cannot be said to import any grant by Lewis of any interest in the property to be acquired by him, through which a legal estate would arise in favor of Phelps. It does not rise beyond the promise of Lewis that Phelps should have the full control and enjoyment of whatever real property he might become vested with the title to, under their arrangement. Phelps' rights rested in the mere promise of Lewis. It is manifest, from the statute, that notwithstanding the consideration for the grant of the real property to Lewis was paid by Phelps, the title vested in the grantee, free of all claims, except the claim which creditors might have to assert that the transaction was fraudulent as to them. See §§ 51 and 52 of the article on Uses and Trusts.1 It is needless to argue that wives cannot come under that classification.

The position of a wife, with respect to her husband's property, is limited by the Revised Statutes, and unless she can bring herself within their limitations, she is without the right to assert any claim to it. Concededly, in this case, the husband was never seised of the property in question and the agreement set forth, and which is claimed to confer upon him its real ownership, could create no interest, or right to possession. If it were possible to assume a right in Phelps, based upon the agreement, to maintain an action for the reconveyance by Lewis to himself of the lands, such an assumption clearly negatives any idea of the existence of a legal estate in Phelps. We may assume, as it is alleged, that he was to receive the benefits arising from the lands; but if there was a beneficial use, it must be united with a right to the possession (a right which is not alleged here), before we can perceive the existence of any estate, upon which a claim of dower may be impressed.

It is not pretended that any precedent exists in the decisions of the courts of this State for the maintenance of this action.

So far as my examination has gone, I am unable to find in the adjudged cases any support for the proposition that a right to dower can be asserted, except with respect to real property of which the husband was actually seised during his lifetime, or to the actual seisin of which he had a legal right. The cases referred to by the respondent's counsel in the reports of the courts of other States are inapplicable in the construction of the statutes of our own State. They may, or may not, turn upon the wording of particular statutes; however it may be they cannot control when our own statutes are in question.

1 See § 74 of the New York " Real Property Law." - Ed.

It results from my consideration of the case, that the order and judgment below should be reversed and that an order should be entered dismissing the complaint, with costs in all the courts to these appellants.

Fontaine V. Boatmen's Savings Institution

57 Missouri, 552. - 1874.

Suit for the assignment of dower.

Plaintiff was the wife of Felix Fontaine, who died in 1849. During the coverture one Louis Provenchere, and his wife, conveyed the premises in question, in fee, to Fontaine, who at once conveyed the same to one Derouin, in trust for Provenchere's wife. Plaintiff did not join in the last conveyance. The title has passed to defendant by several intermediate conveyances. Judgment below for defendant. Plaintiff brings error.

Wagner, J. * * * The case was tried before the court sitting as a jury; and at the close of the testimony plaintiff requested the court to declare the law to be, that on the evidence and admission in the cause plaintiff was entitled to dower in the land described in the petition. This was refused, and on the application of defendant the court gave the converse of the proposition, and instructed that under the evidence in the case the plaintiff was not entitled to recover. * * * The question in the case, therefore, is whether the seisin of Fontaine, the plaintiff's husband, in the estate was of such a beneficial interest as would entitle her to dower, or whether it was merely transitory? Perhaps no principle of the law is more firmly or thoroughly established than that where the seisin of the husband is for a transitory instant only, as where the same act which gives him the estate also conveys it out of him, or where he is the mere conduit employed to pass the title to a third person, no right of dower passes. 1 Scrib. Dow. 259. To this principle may also be referred the well settled doctrine that where a deed for lands is executed, and simultaneously therewith the purchaser gives back a mortgage upon the same lands to secure any portion of the purchase money, he acquires, as against the holder of the mortgage, no such seisn as will entitle his wife to dower. The deed and mortgage, although in themselves separate and distinct instruments, nevertheless, under the circumstances are regarded as parts of the same contract. They take effect at the same time, and the giving of the deed upon the one part, and of the mortgage upon the other, is held to constitute but a single act, and to result in clothing the purchaser with seisin for a transitory instant only. Id. 261 and note 2.