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 .
Since the right to dower exists in one's favor by reason of her widowhood, it cannot exist unless there was a lawful marriage of the person claiming dower to the person in whose land it is claimed.37 The legality of the marriage, for this as for other purposes, is determined by the law of the place where it is celebrated.38 A marriage which is voidable only, and not void, is sufficient to support the claim of dower, if not annulled during the husband's life.39
It is stated, especially in the older books, that, to entitle the widow to dower, the husband must have been "seised during coverture."40 So far as this involves the exclusion of dower in land transferred by the husband before marriage, its effect will be considered elsewhere,41 but at present we are concerned with the question of what circumstances render the husband "seised," and to what extent such "seisin" in him is to be regarded as an bia Law Rev. at p. 693; 28 Harv. Law Rev. at p. 276.
37. Co. Litt. 32a; Higgins v. Breen, 9 Mo. 497; Jones v. Jones, 28 Ark. 19; Cropsey v. Ogden, 11 N. Y. 228.
Accordingly, there is no dower if either party to the marriage had a spouse living at the time of the marriage. Bates v. Meade, 174 Ky. 545, 192 S. W. 666; Smith v. Smith, 5 Ohio St. 32; Smart v. Whaley, 6 Smedes & M. (Miss.) 308; De France v. Johnson, 26 Fed. 891; Price v. Price. 124 N. Y. 589, 12 L. R. A. 359, 27 N. E. 383. Or, if the husband was non compos mentis at that time: Jenkins v. Jenkins' Heirs, 2 Dana. (Ky.) 102, 26 Am. Dec. 437; 2 Blackst. Comm. 130; 1 Scribner, existing requirement in the case of dower. Since the transfer of land does not now, as at common law, involve actual livery of seisin, these questions may readily arise when one, having title to land by a valid transfer from another, dies without having actually entered on the land, leaving a widow.42
Dower, 123. But see Wiser v. Lockwood's Estate, 42 Vt. 720.
38. 1 Scribner, Dower, 147; Putnam v. Putnam, 8 Pick. (Mass.) 433; Dickson v. Dickson's Heirs, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444.
39. Co. Litt. 33a; 1 Cruise, Dig. tit. 4, c. 1, Sec. 13; 1 Scribner, Dower, 114,' 135; Bonham v. Badgley, 7 111. 622; Tomppert's Ex'rs v. Tomppert, 13 Bush (Ky.) 326, 26 Am. Rep. 197; Price v. Price, 124 N. Y. 589, 12 L. R. A. 359, 27 N. E. 383; Gathings v. Williams, 27 N. C. 487, 44 Am. Dec. 49.
40. Litt. Sec. 30; Co. Litt. 31a; 2 Bl. Comm. 131; Park, Dower, 24.
41. See post Sec. 220(a).
As before stated, the effect of a conveyance under the Statute of Uses is to transfer the seisin out of the grantor;43 and, consequently, provided the grantor was not disseised, the grantee has seisin for all purposes, including that of dower,44 and any conveyance, if supported by a sufficient consideration, would no doubt be regarded as taking effect under the Statute of Uses, if necessary to support dower. Even under the statutory provision, existing in many states, that land may be conveyed by a simple deed, without livery of seisin, or without act or ceremony other than such deed,45 it might be considered that a deed is equivalent to livery of seisin, so as to confer the seisin on the grantee for all purposes, provided there is no adverse possession of the land.
42. In some comparatively early decisions in this country the recording of a conveyance was regarded as equivalent to livery of seisin. Thomas v. Thomas, 32 N. C. 123; Talbott v. Armstrong, 34 Ind. 254; Higbee v. Rice, 5 Mass 344, 4 Am. Dec. 63; Ward v. Fuller, 15 Pick. (Mass.) 185;
Patten v. Brown, Brunner, Col. Cas. 185, Fed. Cas. No. 10,832; Patton v. Reily, Brunner, Col. Cas. 180, Fed. Cas. No. 10,838; Rogers' Lessee v. Cawood, 1 Swan (Tenn.) 142, 55 Am. Dec. 729. But, as a general rule, in view of the purpose of the recording laws, the failure to record the conveyance to the husband would certainly not affect the widow's right of dower except as against a subsequent bona fide purchaser for value from the grantor of the husband. See Pickett v. Lyles, 5 Rich. (S. C.) 275; Sutton v. Jer-vis, 31 Ind. 265.
43. Ante Sec. 100.
44. Park, Dower, 34; 1 Scrib-ner, Dower, 265. In these books it is stated that seisin in law is conferred by the statute. As stated in a previous section of this work, seisin in deed passes by a conveyance under the statute. See ante Sec. 100.
45. 1 Stimson, Am. St. Law, Sec. 1470. As to the conflicting views whether the English statute 8 &
Without reference, however, to the character of the conveyance, the term "seisin" has, as before indicated,46 been applied, since the Statute of Uses, at least among conveyancers, to the case of one "having the legal estate, either in possession or reversion, provided that it has not been turned into a mere right of entry, as where a wrongdoer has obtained actual possession."47 This view, that the seisin, in the absence of adverse possession, follows the legal title, has occasionally been adopted by courts in this country,48 and there is a strong implication to the same effect in the decisions which, while in terms stating, in regard to dower, that the husband must have been seised during coverture, evidently mean thereby merely that he must have had an estate of a certain character,49 as well as in those which, while stating that the proof by the widow of seisin in the husband is sufficient if she shows that he was in possession under claim of title, intend to assert thereby merely that this is sufficient evidence of title.50
9 Vict. c. 1G6, providing that corporeal tenements and hereditaments shall be deemed to lie in grant as well as in livery, makes a grant effective to confer seisin, see article by Charles Sweet, Esq., 12 Law Quart. Rev. 245. 4G. Ante Sec. 14.
47. Goodeve, Real Prop. (3d Ed., by Sir H. Elphinstone) 365, approved by Charles Sweet, Esq., 12 Law Quart. Rev. 245.
48. Green v. Liter, 8 Cranch. (U. S.) 229, 247, 3 L. Ed. 545; Day v. Solomon, 40 Ga. 32; Ferguson v. Ferguson, 153 Ky. 742, 156 S. W. 413; Atwood v. At-wood, 22 Pick. (Mass.) 283; Far-well v. Rogers, 99 Mass. 33; Mc-Intyre v. Costello, 14 N. Y. St. Rep. 370, 1 Stimson, Ames Stat. Law, Sec. 1400. See also Pledger v.
Ellerbe, 6 Rich. Law (S. C.) 266, CO Am. Dec. 123.
49. Tate v. Jay, 31 Ark. 579; Butler v. Cheatham, 8 Bush (Ky.) 594; Mann v. Edson, 39 Me. 25; Blood v. Blood, 23 Pick. (Mass.) 80; Ware v. Washington, 6 Smedes & M. (Miss.) 737; Barnes v. Raper, 90 N. C. 189; Rands v. Kendall, 15 Ohio 671; Pritts v. Ritchey, 29 Pa. St. 71; Pledger v. Ellerbe, 6 Rich. Law (S. C.) 266, 60 Am. Dec. 123; Apple v. Apple, 1 Head (Tenn.) 348.
50. Gordon v. Dickison, 131 111. 141, 23 N. E. 439; Mann v. Ed-son, 39 Me. 25; Torrence v. Carboy, 27 Miss. 697; Griggs v. Smith, 12 N. J. L. 22; Jackson v. Waltermire, 7 Cow. (N. Y.) 353; Pickett v. Lyles, 5 Rich. (S. C.) 275.
In some states, owing to decisions on the analogous subject of curtesy,51 it may no doubt be considered that, even when there was adverse possession of the land, the widow will be given dower, but generally, it would seem, a different view will be taken, in the absence of a statutory provision on the subject. Accordingly, the widow of one who had a right to re-enter for breach of a condition, and failed to do so, has been regarded as not entitled to dower.52
In England and in a few states in this country, it is now provided by statute that a widow shall be dow-able of land as to which her husband had a right of action or entry merely, thus dispensing with the requirement of seisin.53
Seisin in law, as distinguished from seisin in deed, has always been regarded as sufficient to support dower, and consequently it is stated by the older writers that, though the husband fail to enter on land which passes to him by descent, the widow is entitled to dower.54
The common law requirement of seisin in the husband finds an application in the rule, still recognized, that there is no dower in a reversion or remainder upon an estate of freehold.55
Provided the husband had seisin, the fact that his seisin was wrongful does not exclude the widow's dower right, as against persons claiming under the husband.56 There is no requirement that the husband shall have had a better right to the land than any other person.
51. Post Sec. 239.
52. Park, Dower, 25; 1 Cruise, Dig. tit. 6, c. 1, Sec. 20; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23; Thompson v. Thompson, 46 N. C. 430.
53. Challis, Real Prop. 347; 1 Stimson, Am. St. Law, Sec. 3211; 1 Scribner, Dower, 258.
54. Co. Litt. 31a; Park, Dower, 31; 1 Cruise, Dig. tit. 6, c, 1,
Sec. 19; 2 Bl. Comm. 131; 4 Kent, Comm. 37. See, as to seisin in law, ante, Sec. 14.
55. Post Sec. 217.
56. Park, Dower, 37; 1 Scribner, Dower, 267; McIntire v. Brown, 28 Ind. 347; Toomey v. McLean, 105 Mass. 122; Randolph v. Doss, 4 Miss. 205. See Vidmer v. Lloyd, 184 Ala. 153, 63 So. 943.
Obviously, however, the dower estate, like the husband's tortious estate from which it is derived, is subject to destruction by reason of the assertion of the paramount title.57