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 .
75. King v. King, 61 Ala. 479; statute applies in terms only as against a widow who was a non-resident of the state at the time of the husband's conveyance.80 Even a statute enabling the husband to convey lands free from dower has been regarded as not authorizing a merely colorable conveyance for the purpose of barring dower.8l affect her claim for dower,83 unless, according to some decisions, her conduct was of such a misleading character as to estop her from making the claim.84
- (b) After marriage. Except when the statute otherwise provides, the husband cannot, by making a conveyance of the property during coverture, without the wife's joinder, bar the latter's dower.76 The only possible exception to this rule exists in the case of a dedication of land by the husband for public use, which, it has occasionally been decided, excludes the dower right,77
In a number of states it is provided by statute that the widow shall be dowable only of land of which the husband is seised or possessed at the time of his death,78 while in some her right to dower in equitable, as distinct from legal interests, is so restricted;79 and under such statutes the husband may, by a conveyance during coverture, bar the wife's dower. Occasionally such a
Whithead v. Mallory, 4 Cush. (Mass.) 138; Gross v. Lange, 70 Mo. 45; See Johnson v. Johnson, 106 Ark. 9, 152, S. W. 1017.
76. 4 Kent. Comm. 50; Dick v. Doughten, 1 Del. Ch. 320; Sutherland v. Sutherland, 69 111. 481; Grissom v. Moore, 106 Ind. 296, 55 Am. Rep. 742, 6 N. E. 629; Purcell v. Lang, 97 Iowa, 610, 66 N. W. 887; Gaines' Adm'x v. Poor, 3 Mete. (Ky.) 503, 79 Am. Dec. 559; Grady v. McCorkle, 57 Mo. 172, 17 Am. Rep. 676; House v. Jackson, 50 N. Y. 161; Rose v. Rose, 63 N. C. 391; Garney v. Anderson, 87 S. C. 47, 68 S. E. 888. It is so provided by statute is some states, 1 Stimson's Am. St. Law, Sec. 3249.
77. 2 Scribner, Dower, 577; Duncan v. City of Terre Haute, 85 Ind. 104; Benton v. St. Louis, 217 Mo. 687, 118 S. W. 418; Gwynne v. City of Cincinnati, 3 Ohio, 24, 17 Am. Dec. 576.
Dower has even been held to be excluded by a conveyance for merely quasi public purposes, as for a railroad. Baker v. Atchison. T. & S. F. R. Co., 122 Mo. 396, 30 S. W. 301; Venable v. Wabash Western Ry. Co., 112 Mo. 121, 20 S. W. 493, 18 L. R. A. 68. And see, to the same effect, Park, Dower, 245. Contra, Nye v. Taunton Branch R. Co., 113 Mass. 277, holding that a conveyance by the husband to a railroad company does not exclude dower.
78. 1 Stimson's Am. St. Law, Sec. 3202 (e). See Beard v. Knox, 5 Cal. 253, 63 Am. Dec. 125; Flowers v. Flowers, 89 Ga. 632, 18 L. R. A. 75, 15 S. E. 834; Sutton v. Askew, 66 N. C. 172. 8 Am. Rep. 500; Hopkins v. Bryant, 85 Tenn., 520, 3 S. W. 827.
In England, and occasionally in this country, it is expressly provided that the husband may bar dower by his sole conveyance. See Challis, Real Prop. 347; Jiggitts v. Jiggitts, 40 Miss. 718.
79. Ante Sec. 214.
A mortgage by the husband alone during coverture stands on the same footing as an absolute conveyance by him, so far as regards the right of dower, and consequently it is not usually sufficient to affect the dower rights of the wife, even though it be foreclosed.82
The fact that one to whom the husband conveyed the land was a purchaser for value without notice of the existence of a wife having dower rights does not
80. See Buffington v. Sears, 46 Kan. 730, 13 L. R. A. 282, 27 Pac. 137; Legare v. Semple, 32 Mich 438; Miner v. Morgan, 83 Neb. 400, 119 N. W. 781; Ekegren v. Marcotte, 159 Wis. 539, 150 N. W. 969.
81. Flowers v. Flowers, 89 Ga. 632, 18 L. R. A. 75, 15 S. E. 834; Tucker v. Tucker, 29 Mo. 350; Newton v. Newton. 162 Mo. 173, 61 S. W. 881; McGee v. McGee, 4 Ired. L. 105; Killinger v. Reiden-hauer, 6 Serg. & R. (Pa.) 531; Thayer v. Thayer, 14 Vt. 107, 39 Am. Dec. 211. Compare Stewart v. Stewart, 5 Conn. 317.
Occasionally the statute in terms restricts the power of the husband to bar dower by his conveyance under circumstances indicative of a lack of good faith towards her. Jiggitts v. Jiggitts, 40 Miss., 718; Littleton v. Littleton 18 N. C. 331; Brewer v. Con-nell, 11 Humph. (Tenn.) 500.
82. McMahon v. Russell, 17 Fla. 698; Pirkle v. Equitable
Mortgage Co., 99 Ga. 524, 28 S. E. 34; Cold v. Ryan, 14 111., 53; Sutton v. Jervis, 31 Ind. 265 99 Am. Dec.631; Dockray v. Milliken, 76 Me. 517; Price v. Hobbs, 47 Md. 359; Wedge v. Moore, 6 Cush. (Mass.) 8; Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706; Tibbetts v. Langley Mfg. Co., 12 S. C. 465. See 1 Stimson's Am. St. Law, Sec. 3213.
But in Pennsylvania the rule is otherwise, it seems, and a mortgage made by the husband during coverture takes precedence of dower. Scott v. Croasdale, 1 Yeates (Pa.) 75. But not if in fraud of dower. Killinger v. Reid-enhauer, 6 Serg. & R. (Pa.) 531. As previously stated, the dower right does not take precedence of a mortgage given as a part of the same transaction by which the property was received, as when a purchase money mortgage is immediately given. See ante Sec. 211.
If a lease for years is made by a man before his marriage, his widow, though entitled to dower in the reversion,85 and in the rent incident thereto,86 cannot assert her dower right as against the tenant under the lease, so as to affect his possession. If, on the other hand, the husband, after marriage, makes a lease without the wife's joinder, her dower claim is entitled to priority over the rights of the lessee. If she joins in the lease, her rights are the same as in the case of a lease by the husband before marriage.87