This conclusion does not conflict with the doctrine that where lands are condemned by proceedings to which the husband only is a party, that the wife cannot thereafter assert a right in the land against the public. I think, for the purposes of condemnation and compensation, this interest of the wife's, not rising to the dignity of an estate, is represented in the fee of the husband. We know that in making compensation, the right taken is considered a perpetual easement, equivalent to the fee, and that damages are assessed for the value of the entire interest in the land.
It has never been hinted that a deduction for the wife's inchoate dower should be made. The value of her interest, therefore, passes into the award. In this view, the condemnation of the land, by notice to the husband, condemns and extinguishes the inchoate interest of the wife. The land is transmitted into money. It assumes a shape where she can claim her right without interfering with the public. Equity will secure to her that portion of the award which represents her inchoate dower.
While this doctrine is expressly held in no preceding case, the court, in the Matter of the Central Park Extension, 16 Abb. Prac. R. 69, speaking of the case of Moore v. The City of New York, says: "It might have been added to that case, that the right was transferred from the land to the money received from the land by the husband, if the wife survived him." Mr. Scribner, vol. II., p. 21, says: "It may be that after the value of the entire estate is ascertained, and the amount paid over to the proper legal authorities, particularly if she be a party to the proceedings, her right is transferred from the land to the money representing the land."
I think that by the practice in this State, of compensating for the entire value of the land, upon notice to the husband, the wife is represented by her husband, and is always a party to the proceedings, fur the purpose of enabling her to assert her right to her interest in the award. Upon the first question, I think the conclusion of the vice-chancellor was correct. This being so, the parties desire a sum in gross, in preference to the securing of one-third of the principal, to await the event of her surviving her husband. In what portion of the award is the wife entitled to inchoate dower? The entire amount of damages awarded was the sum of $15,000. The benefits were $1,500. The benefits were properly deducted, leaving the balance $13,500. Of this sum, it is claimed that only $4,800 were for the value of land taken, the remaining portion being for damages to the adjacent land of the husband. It is claimed that the wife has no interest in the damages.
It is true, generally, that the wife has no interest in damages resulting from injury to land. I think, however, in this instance, that the computation of the vice-chancellor upon the entire amount of $13,500, was correct. It represented the depreciation of the entire tract. Although she has still her right of dower in the remaining portion, yet by the sale under the Wheeler and Green judgment, before, any improvements were made, her right is limited to recover a third of the land at the time of the sale. Vandorn v. Vandorn, Penn. 513. She gets, therefore, what she would have recovered had the land not been taken.
I think the decree of the chancellor should be affirmed, with costs.
10 Maryland, 5. - 1856. [Reported herein at p. 687.]
(c.) Husband's conveyance during coverture.1
1 Delaware Chancery, 320. - 1827.
Bill in equity for the assignment of dower. The case made by this bill was as follows:
James Dick, deceased, the husband of the complainant, was in his lifetime seised in fee simple of a certain tract of land, situate in New Castle county. About the 21st of April, 1803, he sold and conveyed the same to David L. Reece, the complainant being before and at the time of the sale and conveyance the lawful wife of the grantor, the said James Dick. The bill alleged that the complainant had not at any time released her dower in said land or barred herself thereof by any act or deed whatever. The title to the land was traced down by the bill, from David L. Reece to William Doughten, the present tenant and the defendant in this suit. James Dick, the husband, died on the 26th of December, 1803, leaving to survive him his widow, the complainant, and one daughter. William Dough-ten, the defendant, was in possession of the lands at the filing of this bill, and had been since the 21st of March, 1814. The prayer was that dower be assigned to the complainant out of the said tract of land, and that the defendants account with her for the rents and profits which may have accrued therefrom since the date of the death of the said James Dick. * * *
1 See N. Y. R. P. L. § 183. - Ed.
Ridgely, Chancellor. - It is now for the first time objected in argument for the defendants, that William Doughten was a purchaser without notice, for a valuable consideration. * * *
I might here close this part of the case; but two other points were made in the argument. First, on the part of the complainant, it was objected that the defendant could not make the defense, by answer, of his being a purchaser for a valuable consideration, without notice. The second point was, whether the defendant can avail himself, by plea or answer, of his being a purchaser for a valuable consideration without notice, as against a claim of dower in the complainant.
First, I think a defendant may avail himself of this defense by answer as well as plea. The following authorities support this opinion: 1 Harrinson's Ch. Pr. 244; Harris v. Ingleton, 3 P. Wms. 91, 95; 2 Ves. Sr. 492. Lord Hardwicke says, in Chapman v. Turner, 1 Atk. 54, "The defense proper for a plea must be such as reduces the cause to a particular point, and from thence creates a bar to the suit, and is to save the parties the expense of an examination; and it is not every good defense in equity that is good in a plea, for where the defense consists of a variety of circumstances, there is no use of a plea; the examination must still be at large, and the effect of allowing such a plea will be that the court will give their judgment on the circumstances of the case before they are made out by the proof." In addition, Lord Redesdale's Treatise on Pleadings, 246, may be consulted on this subject. The defense in this case might, possibly, have been better made by a plea and by answer in support of the plea; but I will not enlarge on this subject.