The same doctrine is announced in the case of Scott v. Howard, 3 Barb. Rep. 319, and also in our own chancery court, in the case of Mants v. Buchanan, 1 Md. Ch. Dec. 202, as well as a number of other well adjudged cases.
But the soundness of this doctrine seems not to be denied by the appellee's counsel, but it is contended, that such a defense cannot be resorted to in action at law, but is only availing in equity, if it can be relied on at all.
We think the contrary is settled by the General Court of this State, in the case of Lane v. Gover, 3 Har. & McH. 394. That was a case, like the present, at law, and the court permitted a sale under a lien subsisting prior to marriage, to defeat the claim of the widow to dower, and the mere circumstance that the lien bound the land in the lifetime of the husband's ancestor, does not affect the principle, as the appellee's counsel supposes, that such a defense would be availing at law.1
Campbell, J., in
35 Michigan, 415. - 1887.
The bill in this case was filed by the widow of Henry B. Brown, deceased, to recover her dower of certain property in Big Rapids, Mecosta county, which Brown was claimed to have conveyed to the defendants, who were his children, and would have been his heirs-at-law of any property which he owned at his death. This deed purported] to have been made September 26th, 1871, two days before Brown's marriage with complainant. The bill claimed that if the deed was genuine it was in fraud of complainant, but disputed its genuineness and delivery.
1 See N. Y. R. P. L. § 172. - Ed.
Both parties to the marriage were beyond middle life, and had grown-up children at the time. The defendants were children of Brown by a former wife. They claimed that the deed was delivered and intended to operate at once, and that it was made in fulfilment of a trust in their favor, the land being asserted to have been purchased with the proceeds of property held in trust for them from their mother's estate. * * *
We are satisfied that if the deed had been executed and delivered at the time of its date, it would have been a legal fraud on complainant, under the rule in Cranson v. Cranson, 4 Mich. R. 230. And assuming all that is claimed for defendants on the facts, the land was then owned by Henry B. Brown in his own right, and free from any trust whatever. * * *
In bringing about the marriage, Brown had, and was evidently intended to have, credit for owning the premises in controversy. The deed was not made public, and was unquestionably intended to prevent the dower interest of complainant from attaching, - if the deed itself was really made operative. This was a legal fraud, and could not lose that character by reason of any desire to carry out a previous purpose, concealed from complainant and the public, and continuing concealed during the remainder of Brown's life.
(b.) Ante-nuptial settlements or agreements intended to bar dower.1
2 Cushing (Mass.), 467. - 1848.
Fletcher, J. - This was a suit by the demandant, as the widow of Isaac Vincent, to recover dower in a certain messuage, of which the tenant, as the executor of Vincent, is in possession. It is admitted that the demandant was the lawful wife of Vincent; that during the coverture he was lawfully seized of the premises described in the writ, and died seized thereof, and that the demandant's demand to have dower assigned to her therein was duly made before the commencement of this suit. The tenants contend that this suit cannot be maintained, for the reason that, prior to the demandant's intermarriage with Isaac Vincent, she duly executed an ante-nuptial contract with him and one Valentine Bradford, as trustee, by the terms of which she accepted a certain pecuniary provision therein made for her out of the estate of her intended husband in lieu of dower.
1 Sec N. Y. R. P. L. §§ 177-179, 182. - Ed.
It appeared that previous to the marriage, an indenture between Isaac Vincent, of the first part; Valentine Bradford, of the second part, and the demandant, by her then name of Sarah T. Cushman, of the third part, was executed, by which Vincent covenanted with Bradford, that if the marriage took place, and the plaintiff survived him, he would cause to be paid and secured to Bradford, by his last will or otherwise, the sum of one thousand dollars, to be paid within ten months after his decease, and would also cause to be paid or secured to Bradford the further sum of five hundred and fifty dollars, to be paid to him yearly, during the widowhood of the demandant, to be paid over to her instead and in satisfaction of dower, and of all distributive share in his personal estate. Bradford covenanted faithfully to execute the trusts, and the demandant covenanted and agreed, that the sum of one thousand dollars being provided to be paid and actually paid, and an annual sum of five hundred and fifty dollars being secured and provided to be paid, should be in full satisfaction and bar of her dower in his estate, and should also be a bar to her claiming or having any part of his personal estate.
Isaac Vincent deceased, having made his last will and testament, of which the tenant was duly appointed executor. Upon the tenant's assuming the trust of executor, he duly notified the demandant and Bradford, the trustee, of his readiness to perform all the stipulations of the ante-nuptial contract. Within ten months after the decease of Vincent, the tenant paid Bradford, the trustee, the sum of one thousand dollars, which was accepted by him and tendered to the demandant.
Within the ten months also, the tenant executed and delivered to Bradford a bond, with sufficient sureties, for the faithful and prompt payment of the annuity of five hundred and fifty dollars during the widowhood of the demandant, which bond was also fully secured by mortgage; and the bond and mortgage were accepted by Bradford, as such trustee, as sufficient security for the payment of the annuity.