The second might have been much the most important point; but from the failure of proof in the defendant, it is not of the first consideration in the cause. However, I shall not pass it by without notice. In Williams v.Lambe, 3 Bro. Ch. Rep. 264, which was a bill for dower, and in which the defendant pleaded to the discovery and relief that he was a purchaser for a valuable consideration, without notice of the vendor being married, Lord Thurlow said, "the only question was, whether a plea of purchase without notice would lie against a bill to set out dower; that he thought where the party is pursuing a legal title, as dower is, that plea does not apply, it being only a bar to an equitable, not to a legal claim." He therefore overruled the plea. Mr. Park, in his Treatise on Dower, 328, says the case of Williams v. Lambe may be supported on its particular circumstances, on the ground that the plea covered too much, being to the relief as well as to the discovery. The dowress had a right to recover against the purchaser at law, and if it be established that a court of equity has a concurrent jurisdiction to assign dower, such a plea to the relief would appear to be inexplicable; although it might be good to the discovery, since the relief prayed is not the assistance of the court to enable the dowress to make good her title at law, but merely to give her the effect of a recovery at law. It is, indeed, noticeable that the observations of Lord Thurlow seem distinctly addressed to the plea, as a plea to the relief, and his omitting to intimate that such a plea might be good as to the discovery, may possibly be accounted for by the consideration that in a case so circumstanced, a plea to the discovery would almost unavoidably be overruled by the answer. Now, in the case of Williams v. Lambe, I do not perceive the ground for Mr. Park's distinction; for as the case is reported by Brown, although Lord Thurlow's remarks were addressed to the plea, yet they distinctly state that the plea did not apply as a bar to a legal claim; that dower was a legal claim, and therefore the plea was overruled. But suppose Mr. Park's distinction to be correct, this answer does not object to making the discovery; and it does state the several deeds of conveyance, and makes a full discovery as to the title; and then as I clearly understand it, the fact that the purchase for a full, fair and just price, without any notice, knowledge or belief that there existed any defect in the title, or that the said tract of land was liable to any claim or demand of dower by the said Martha Dick is opposed as a defense to the relief. This is a legal, not an equitable title, and I should decree in favor of the complainant, had the defendants supported their answer by proof, unless the admission of the sufficiency of the answer by not excepting it might have interposed a difficulty. * * *
d. Wife's release of dower.
49 Maine, 537. - 1860.
Appleton, J. - On the 23d of October, 1823, the plaintiff's husband conveyed the premises in which dower is demanded, to Joab Harriman, by a deed to which she was not a party.
On the 19th January, 1827, Joab Harriman quitclaimed the same to James Harriman by deed having no covenants and closing in these words: "So that neither I, the said Joab Harriman, nor my heirs, nor any other person or persons claiming from, or under me or them or in the name, right or stead of me or them, shall or will, by any way or means, have, claim or demand any right or title to the aforesaid premises, or their appurtenances, or any part or parcel thereof forever."
From James Harriman the title passed through various mesne conveyances to the tenant.
Upon the case as thus presented, the plaintiff's right to dower would seem to be unquestioned. The tenant claims to bar the plaintiff's right to dower by reason of her release of the same to Joab Harriman, by deed dated April 2, 1838. But, long before this, the title to the premises in question had been conveyed to those under whom the tenants claim. The releasee had ceased to have any interest therein. A release of dower to a stranger constitutes no defense. Pixley v. Bennett, 11 Mass. 298. "In dower, the tenant pleads a release from the demandant to such an one, tenant in possessione tene-mentor praedict existent, and because not said he was tenens liberi tene-menti, it was holden no plea; and adjudged for the demandant; for a release of dower, to a tenant for years, or at will can be no bar of dower, because she cannot demand it against them." Cro. Jac. 151.
Neither is the demandant to be estopped by this conveyance. Estoppels, to be binding, must be reciprocal. As between the demandant and Joab Harriman, she would be estopped. But the release to Joab does not inure to his grantees, and, not inuring by estoppel to their benefit, they cannot set it up as a bar. It has been repeatedly settled, that a grantee is not estopped from setting up a subsequent title, by language such as is found in the deed of Joab to James Harriman. Nor do the subsequently acquired rights of Joab inure to the use of his grantee. Pike v. Galvin, 29 Maine, 183.
Case to stand for trial.
133 New York, 505. - 1892.
Peckham, J. - In relation to the question arising upon this application of the purchaser, Wolf, to be relieved from his bid at the judicial sale on the ground that the interest of the wife of Bauer had not been duly conveyed by virtue of her power of attorney to her husband, we are of the opinion that the order of the General Term is erroneous and for the reasons stated in the dissenting opinion of Mr. Justice Andrews at the General Term * * * we think there is no objection to the title arising out of the power of attorney given by the wife to the husband. She had the right to execute a power of attorney under the act, chap. 300 of the Laws of 1878,1 and in executing such power she could appoint her husband her agent or attorney in fact. * * *