It is undoubtedly true, as a general rule, that a statute shall not have a retrospect beyond the time of its commencement, or be so construed as to take away a vested right of property, or defeat a right of action already accrued. Sayer v. Wisner, 8 Wendell, 661; Varick v. Briggs, 6 Paige, 332. But that doctrine can have no bearing upon this case. While her husband lived the plaintiff had no interest in the land; no right of action which could be forfeited.
Her misconduct vested no new interest or title in any third person, and consequently none was taken away by the act of 1830.
I cannot think it a sufficient objection to the plaintiff's claim, that there was a time, when, if her husband had died, she would have been barred. Though she was disabled by the adultery, and her dowable capacity was gone for a time, it was restored before the right accrued - the obstacle in the way of her taking was removed by the repeal of the act of 1787. * * *
New trial granted.
(b.) Loss of husband's estate.
27 New Jersey Equity, 534. - 1875.
Reed, J. - * * * The wife, by her bill, now claims to have an interest in the award, by reason of her inchoate dower in the land so condemned.
Two questions are presented: First. Has the wife an interest in this award? Second. If so, what interest?
The character of inchoate dower has been the subject of much contrariety of opinion It is said not to be an estate. It is not the subject of grant. It cannot be taken upon execution. Equity will not apply it to the satisfaction of the debts of the wife. As dower was a humane provision for the sustenance of the widow and younger children, some limit was imposed on the power to defeat its consummation. Yet, while not technically an estate, it cannot, at this day, be denied that inchoate dower is a valuable interest in land. It is an interest which the courts have repeatedly recognized. Its presence works a breach of the covenants against incumbrances. Carter v. Denman, 3 Zab. 260. Its relinquishment is a valuable consideration to support a conveyance by her husband to her against his creditors Wright v. Stanard, 2 Brock. 311; or a promissory note given by a purchaser. Nims v. Bigelow, 45 N. H. 343.
A conveyance by the husband on the eve of marriage, to defeat dower of the wife, will be set aside during the life of the husband. Smith v.Smith, 2 Halst. 515. And when, by judicial proceedings, land is converted into money, the wife's interest is still recognized and protected. The character of land is impressed upon the fund, and courts of equity will secure that portion of the money which represents her inchoate interest. Matthews v. Duryea, 45 Barb. 69; Malloney v. Horan, 49 N. Y. 116; Vartie v. Underwood, 18 Barb. 561. This principle has been recognized in this State, in the case of Hays v. Whitall, 2 Beas. 241. It seems, therefore, clear that the wife had a valuable interest in the strip of land condemned. It is equally clear that if the amount awarded represents the interest of both husband and wife, she has an interest in the award, which, upon general principles, equity is bound to protect. It is insisted, however, that no portion of this award represents the inchoate dower of the wife in the lands. It is said that when lands are taken for public use, the mere exercise of the right of eminent domain in a proceeding against the interest of the husband, extinguishes this right of the wife, without notice or compensation to her. This is the doctrine undoubtedly enunciated by the text-writers. Dillon on Mun. Cor., §§ 459-496; Scribner on Dower, vol. II., p. 551. The two cases upon which these writers rely are Gwynne v. Cincinnati, 3 Ohio, 24, and Moore v. City of New York, 8 N. Y. no. The first was an application of the rule to dedicated lands, and the latter to lands taken by condemnation.
While the conclusion is in conformity with the settled law in England and this country, the conclusion is reached in the case of Moore v. The City of New York, by a general assertion that the inchoate interest of the wife was without value. Gardner, Judge, says: "The wife had no interest in the land, and the possibility she did possess was incapable of being estimated with any degree of accuracy." This was said in the face of the fact that, years before Chancellor Walworth had propounded and acted upon a rule for the computation of the value of this very interest. Jackson v. Edwards, 7 Paige, 408; Bartlette v. Vanzandt, 4 Sandf. Ch. 396. The broad statement in Moore v. The City of New York, is not only opposed to the weight of authority elsewhere, but has been repudiated or modified in later cases in that State. In the Matter of Central Park Extension, 16 Abb. Prac. R. 68; Simar v. Canaday, 53 N. Y. 298, etc.
The extinguishment of dower by condemnation means no more than this, that, as against the State, no widow can claim dower in lands devoted to public use. It has its origin at a time when the sovereign power in the State could assume its right to the use of the property of the subject without compensation. The right was exercised by the removal from possession, of all parties whose occupancy was inconsistent with the object of the public use. No one thereafter could claim a possession inconsistent with such user. The widow was merely in the same position as any other person claiming an interest in the land. The rights of all parties were subject to this dominion of the State, and were in abeyance while the State chose to exercise its privilege. Thus it was said by Coke, "Of a castle that is maintained for the necessary defence of the realm, a woman shall not be endowed, because it ought not to be divided, and the public shall be preferred before the private." "Here," says Scribner, "we see shadowed forth the principle upon which the courts at a later day have proceeded, in holding the inchoate dower of the wife extinguished in lands appropriated, according to the forms of law, to the uses of the public." Scribner on Dower, vol. I., p. 550. It is apparent that the doctrine arose, not because the inchoate dower was valueless, but because it, like all other interests, was servient to the power which inheres in every government, and is here styled eminent domain. As the interest is valuable, she is, under our law, entitled to compensation where those lands are taken for public use.