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 .
In a number of cases it has been decided that one holding under a conveyance by a husband which purported to pass a fee simple estate in possession, is estopped to deny, for the purpose of defeating the widow's claim of dower, that the husband had such an estate.57 Occasionally such an application of the doctrine of estoppel 1ms been denied,58 on very substantial grounds, it would seem. The grantee would not be estopped to deny, as against the husband, in an action on the covenants for title, for instance, that he did not acquire an estate in fee simple by the conveyance, and it is somewhat difficult to perceive why he should be so estopped as against one claiming, as does the widow, under the husband.
Iowa, 318, 60 Am. Hep. 799, 32 N. W. 360; Bennett v. Bennett, 137 Ky. 17, 121 S. W. 495; Dyer v. Clark, 5 Mete. (Mass.) 562, 39 Am. Dee. 697; Free v. Beatley, 95 Mich. 426, 54 N. W. 910; Woodward Holmes Co. v. Nudd, 58 Minn. 236, 27 L. R. A. 340, 49 Am. St. Rep. 503, 59 N. W. 1010; Willet v. Brown, 65 Mo. 138, 27 Am. Rep. 265; Young v. Thrasher, 115 Mo. 222, 21 S. W. 1104; Alley v. House, 40 N. H. 358; Campbell v. Campbell, 30 N. J. Eq. 415; Greenwood v. Marvin, 111 N. Y. 423, 19 N. E. 228; Stroud v. Stroud, 61 N. C. 525; Sparger v. Moore, 117 N. C. 449, 23 S. E. 359; Sumner v. Hampson, 8 Ohio 331; Poster's Appeal, 74 Pa. St. 391, 15 Am. Rep. 553; Shupe v. Rainey, 255 Pa. 432, 100 Atl. 138.
53. See Hadley v. Hadley, 73 Ore. 179, 44 Pac. 80.
54. Lowe v. Lowe, 13 Bush (Ky) 688; Mallory v. Russell, 71 Iowa, 63, 60 Am. Rep. 776, 32 N. W. 102; Greene v. Greene's Surviving Partners, 1 Ohio, 535, 13 Am. Dec. 642; Wooldridge v. Wil-kins. 3 How. (Miss.) 360.
55. Deering & Co. v. Kerfoot's Ex'r, 89 Va. 492, 16 S. E. 671; In re Music Hall Block, 8 Ont. 225; See ante Sec. 196, notes 85, 86.
56. Ware v. Owens, 42 Ala. 212; Drewry v. Montgomery, 28 Ark. 256; Ratcliffe v. Mason, 92 Ky. 190, 17 S. W. 438; Markham v. Merrett, 7 How. (Miss.) 437, 40 Am. Dec. 76; Perin v. Megibben (C. C. A.) 53 Fed. 86. And see Hughes v. Allen, 66 Vt. 95, 28 Ml. 882.
Even courts which adopt the view that, ordinarily, the husband's grantee is estopped in this regard, state that the grantee may show that the husband's estate was not of such a beneficial character as to support dower, as, for instance, that he held it merely as mortgagee or trustee;59 and a grantee of the husband may always, it seems, in order to defeat the dower claim, assert a paramount title acquired by him from a third person, previous to the conveyance by the husband.60
Sec. 220. Effect of conveyance by husband - (a)
Before marriage. A conveyance by the husband before
57. Griffith v. Griffith, 5 Harr. (Del.) 5; Carter v. Ilallahan, 61 Ga. 314, Lewis v. Meserve, 61 Me. 374; Wedge v. Moore, 6 Cush. (Mass.) 8; Woolridge v. Wilkins,
3- How. (Miss.) 360; Hyatt v. Hekerson, 14 N. I. L. 564; Norwood v. Marrow, 20 N. C. 578; Ward v. Mcintosh, 12 Ohio St. 231; Evans v. Evans, 29 Pa. St. 277; Pledger v. Ellerbe, 6 Rich Law (S. C.) 266, 60 Am. Dec. 123; Compare Foster v. Dwinel, 49 Me. 44.
58. Gaunt v. Wainman, 3 Bing. N. C. 69; Crittenden v. Woodruff, 11 Ark. 82; Owens v. Robbins, 19
111. 545, Moore v. Esty, 5 N. H. 479; Sparrow v. Kingman, 1 N. Y. 242 (semble); Gardner v. Greene, 5 R. I. 104; Whitmire v. Wright, 22 S. Car. 446, 53 Am. Rep. 725.
59. Edmondson v. Welsh, 27 Ala. 578; Gammon v. Freeman, 31 Me. 243; Foster v. Dwinel, 49 Me. 44; Moore v. Esty, 5 N. II. 479; Plantt v. Payne, 2 Bailey (S. C.) 319.
60. Coakley v. Perry, 3 Ohio St. 344; Sparrow v. Kingman, 1 N. Y. 242, overruling Bowne v. Potter, 17 Wend. (N. Y.) 164; Mc-Leery v. McLeery, 65 Me. 172, 20 Am. Rep. 683. Cobb v. Oldfleld, marriage will bar the wife's dower, since one of the essentials of dower-seisin or title during coverture-is then wanting.61 But this general rule is subject to an exception in this country in case the conveyance by the prospective husband is in fraud of dower,-that is. intended to deprive the wife of dower,-and in such case she is entitled to dower as if the deed had not been made.62
151 111. 540, 42 Am. St. Rep. 263,
38 N. E. 142. And see Edmonson v. Montague, 14 Ala. 370.
61. Park, Dower 24, 236; Nelson v. Brown ,164 Ala. 397, 137 Am. St. Rep. 61, 51 So. 360; Collins v. Smith, 144 Iowa, 200, 122 N. W. 839; Pratt v. Skolfield, 45 Me. 386; Blood v. Blood, 23 Pick (Mass.) 80; Bliss v. West, 58 Hun (N. Y.) 71.
62. Kelley v. McGrath, 70 Ala. 75, 45 Am. Rep. 75, Roberts v. Roberts, 131 Ark. 90, 198 S. W. 697; Chandler v. Hollingsworth,
3 Del. Ch. 99; Deke v. Huenke-meier, 260 111. 131, 102 N. E. 1059; Petty v. Petty, 4 B. Mon. (Ky.) 215,
39 Am. Dec. 501; Collins v. Collins, 98 Md. 473, 103 Am. St. Rep. 408, 57 Atl. 597; Cranson v. Cranson,
4 Mich. 230, 66 Am. Dec. 534; Donaldson v. Donaldson, 249 Mo. 228, 155 S. W. 791; Swain v. Perine, 5 Johns. Ch. (N. Y.) 482, 19 Am. Dec. 31S; Littleton v.
Littleton, 18 N. C. 327; Ward v. Ward, 63 Ohio St. 125; Brooks v. McMeekin, 37 S. C. 285, 15 S. E. 1019; Thayer v. Thayer, 14 Vt. 107, 39 Am. Dec. 211 and note.
In England it appears that though a secret conveyance by a woman might be set aside as in fraud of the intended husband's marital rights, a conveyance by a man would not be set aside as in fraud of the dower right. The most satisfactory ground suggested for such a distinction appears to be that there, since it was the custom to bar dower by marriage settlement or otherwise, the intended wife did not marry with any expectation in regard thereto. See Roper, Husb. & W., 351. Jacob's notes. It has also been said that the husband's right in this regard rested upon the peculiar right which he had at common law in the wife's property immediately upon the marriage (ante Sec. 205) while the wife had no such right in the husband's property. See 2 Vaizey, Settlements, p. 1587; McKeogh v. Mc-Keogh, Ir. Rep. & Eq. 346. For a review of the English law on the subject see Chandler v. Hollingsworth, 3 Del. Ch. 99, quoted Arne-gaard v. Arnegaard, 7 N. Dak. 475, 41 L. R. A. 258, 75 N. W. 797. In England, prior to the dower act of 3 & 4 Wm. IV. c. 105, various devices were resorted to by the husband, on acquiring land, to bar dower therein, by the creation of trusts, or of powers of appointment, or by taking an assignThe general trend of the decisions is apparently to the effect that any conveyance by one about to marry, not known to the prospective wife, if such as to diminish the property out of which she would be dowable, is invalid as against her dower claim, on a presumption, apparently, that it was intended to prejudice her dower right.63 But not infrequently an exception to this general rule has been recognized, to the effect that such a conveyance may be upheld, as not in fraud of dower, if it involved merely a reasonable provision for the children of a former marriage, having regard to the total value of the husband's property,64 and the ment of an "attendant term." These devices were never utilized in this country, and in England, since the above act, it is sufficient for the husband merely to declare by deed or will his desire to deprive his wife of dower. See Williams, Real Prop. 324, 326, 391.