Sec. 227. Adultery and abandonment
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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 .
Sec. 227. Adultery and abandonment
By an early English statute, it was provided that, if a woman willingly leave her husband, and continue with the adulterer, she shall lose her dower unless her husband is voluntarily reconciled with her.8 This statute has, in some states in this country, been regarded as in force, while in others statutes of a similar character, have been enacted.9 In other states, however, it has been decided that adultery is in no case cause for barring dower, one reason, sometimes given for such a view, being that, since adultery is cause for divorce, which would bar dower, there is no reason for regarding adultery, not followed by a divorce, as a bar.10
The English statute, and its counterparts, have more usually not been regarded as requiring that the wife elope with the adulterer in order that dower be barred, it being sufficient that she leave the husband of her own free will, even though with his consent, and then commit adultery.11
7. Stimson's Am. St. Law, Sec. 3247.
8. St. Westminster II. (13 Edw. I. c. 34, [anno 1285]); 2 Blackst. Comm. 130; Co. Litt. 32a.
9. 1 Stimson's Am. St. Law, Sec. 3246; 1 Sharswood & B. Lead. Cas. Real Prop. 384; 2 Scribner, Dower (2d Ed.) 535. See Stegall v. Stegall, 2 Brock, 256, Fed. Cas. No. 13,351; Shaffer v. Richardson's Adm'r, 27 Ind. 122; Payne v Dotson, 81 Mo. 145, 51 Am. Rep. 225; Walters v. Jordan, 35 N. C. 361.
10. Lakin v. Lakin, 2 Allen (Mass.) 45; Smith v. Woodworth,
4 Dil. 584, Fed. Cas. No. 13,130; Bryan v. Batcheller. 6 R. I. 543, 78 Am. Dec. 454; Reynolds v. Reynolds, 24 Wend. (N. Y.) 193; Littlefield v. Paul, 69 Me. 527.
11. Hetherington v. Graham, 6 Bing. 135; Stegall v. Stegall, 2 Brock. 256; Wilson v. Craig 175 Mo. 362, 75 S. W. 419; Reynolds v. Reynolds, 24 Wend. (N. Y.) 193; Contra, Cogswell v. Tibbetts, 3 N. H. 41; Jarnigan v. Jarnigan, 12 Lea (Tenn.) 292. The consent of the husband to the adultery will not prevent the bar of dower. 2 Co. Inst. 435; Coot v. Berty, 12 Mod. 232; Reynolds v. Reynolds, in a conveyance by her,24 and she has also been held to be estopped in this regard by covenants of her ancestor.25 In two cases, at least, there has been recognized an estoppel to claim dower, based on her execution of .a conveyance, apart from any question of the covenants contained therein.26
In a few states the statute makes the abandonment of the husband by the wife, without his consent and without just cause, a ground for excluding dower.12
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