This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
43. 1 Sharswood & B. Lead. Cas. Real Prop. 371; 1 Stimson's Am. St. Law, Sec.Sec. 6500, 6504. A statute empowering the wife to release dower by joinder in her husband's conveyance has been held not to enable her to bind herself to release, by her joinder in a contract to convey. Crook-shanks v. Ransbarger, 80 W, Va. 21, 92 S. E. 78.
It has been said that the conveyance should contain apt words indicating the wife's intention to release her dower;44 and her mere joinder in the execution of her husband's deed has more usually been regarded as insufficient.45 But it appears to be generally conceded that the conveyance need not refer to dower eo nomine, and that it is sufficient if she join with the husband in the granting part, so as to become a party thereto.46
By the statutes of most of the states, it is necessary that the wife acknowledge the conveyance, the requirements in this respect being usually the same as those imposed in the case of a conveyance of the land of a married woman, and, in some states, she must be examined separately and apart from her husband, in order to determine that she is not acting under coercion by him.47 These requirements as to acknowledgment
44. Hall v. Savage, 4 Mason, 273. Fed. Cas. No. 5,944; Davis v. Jenkins, 93 Ky. 353, 40 Am. St. Rep. 197, 20 S. W. 283; Stevens v Owen, 25 Me. 94; Lothrop v. Foster, 51 Me. 367; Leavitt v. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 685; McFarland v. Febiger's Heirs, 7 Ohio, 194 28 Am. Dec. 632. The joinder of the wife, "in token of relinquishing her right of dower in. the premises" has been held to release her right as widow of a previous husband as well as her right as wife of her present husband. Usher v. Richardson, 29 Me. 415.
45. Cox v. Wells, 7 Blackf (Ind.) 410, 43 Am. Dec. 98; Prather v. McDowell, 8 Bush. (Ky.) 46; Lothrop v. Foster, 51 Me. 267; Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56; McFarland v Febiger's Heirs, 7 Ohio 194, 28
Am. Dec. 632; Contra, Johnson v. Montgomery, 51 111. 185; Burge v. Smith, 27 N. H. 332; Perley v. Woodbury. 76 N. H. 23, 78 Atl. 1073.
46. Dutton v. Stuart, 41 Ark. 101; Jones v. City of Des Moines, 43 Iowa 209; Learned v. Cutler, 18 Pick. (Mass.) 9; Young v. Hyde, 255 Mo. 496, 164 S. W. 228; Gocdheart v. Goodheart, 63 N. J. Eq. 746, 53 Atl. 135; Gillian v. Swift, 14 Hun (N. Y.) 574; Daly v. Willis, 5 Lea (Tenn.) 100.
47. See 1 Stimson's Am. St. Law, Sec.Sec. 6500, 6501, 6504; 1 Shars-wood & B. Lead. Cas. Real Prop. 372; 2 Scribner, Dower (2d Ed.) 322 et seq. In Graves v. Johnson, 172 N. C. 176, 90 S. E. 113, the release by the wife was held to be ineffective if the husband failed to acknowledge the instrument.
- Effect of avoidance of conveyance. If a deed by the husband, in which the wife joins for the purpose of releasing dower, is set aside as being intended to defraud the husband's creditors or for any other reason, the wife's right of dower is revived, since, in such case, there is no one having title, in favor of whom the release can operate.49 Dower has also been regarded as revived by recovery against the husband by the grantee on a covenant of seisin in the conveyance, on the theory that this has the effect of avoiding the deed.50
48. Stidham v. Matthews, 29 Ark. 650; Grove v. Todd, 41 Md. 633, 20 Am. Rep. 76; McDowell v. Little, 33 Mo. 523; Sheppard v. Wardell, 1 N. J. Law, 452; Moore v. Thomas, 1 Or. 201; Kirk v. Dean, 2 Bin. (Pa.) 341; Fisher v. Fisher, 89 S. C. 175, 71 S. E. 863. But that the failure to comply with the statute as to acknowledgment affects merely the right to have the deed recorded and so to charge third persons with notice thereof, see Lake v. Gray, 30 Iowa, 415.
49. Summers v. Babb, 13 111. 483; Frederick v. Emig, 186 111. 319, 57 N. E. 883; Lowry v. Fisher, 2 Bush. (Ky.) 70, 92 Am. Dec. 475; Richardson v. Wyman, 62 Me. 280, 16 Am. Rep. 459; Robertson v. Bates, 3 Mete. (Mass.) 40; Matthews v. Thompson, 186 Mass. 14, 66 L. R. A. 421, 104 Am. St. Rep. 550, 71 N E. 93; Bohannon v. Combs, 97 Mo. 446, 10 Am. St. Rep. 328, 11 S. W. 232; Malloney v. Horan, 49 N. Y. 1ll, reversing 53 Barb. (N. Y.) 29;
Ridgway v. Masting, 23 Ohio St. 294, 13 Am. Rep. 251; Munger v. Perkins. 62 Wis. 499, 22 N. W. 511; Huntzicker v. Crocker, 135 Wis. 38, 15 Ann. Cas. 444, 115 N. W. 340; Cox v. Wilder, 2 Dill. 45, Fed. Cas. No. 3308; In re Ling-afelter, 181 Fed. 24. Contra, Campbell v. Weber, 80 N. J. Eq. 553, 85 Atl. 225. affirming 79 N. J. Eq. 519, 81 Atl. 732. And see Bond v. Bond, 16 Lea. (Tenn.) 306. See the discussion in Bigelow, Fraudulent Conveyances, 61, 13 Columbia Law Rev. p. 537.
The same theory has been applied when a mortgage in which the wife joined in order to release dower was defeated by a sale of the land under a prior lien, the releasa by the wife being held to be thereafter a nullity. Hinchliffe v. Shea, 103 N. Y. 153, 8 N. E. 477; Stowe v. Steele, 114 111. 382, 2 N. E. 116.
50 Stinson v. Sumner, 9 Mass. 143, 6 Am. Dec. 49.
If the husband conveys to the wife the inchoate dower right is