| 
1. This is even made a matter of legislative declaration, in the N.Y. Revised Statutes, vol. i. 772. sec. 5.
2. Fuerunt in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia, vel per liberas consuetudines. Bracton, lib. 1. p. 7. Liberum tenementum non habuit, qui non tenuit nisi ad terminum annorum. Fleta, lib. 5. c. 5. sec. 16. Litt. sec. 57. Co. Litt. 43. b. In the French law, the liberi, or freemen, were defined to be celles qui ne recognoissent superieure en Feidalite. So, in Doomsday, the liberi were expressed to be qui ire poterant quo volebant. Dalrymple on Feudal Property, p. 11.
3. Com. vol. ii. 104.
4. Sullivan's Lectures on Feudal Law, lec. 6. Preston on Estates, vol. i. 206-210.
5. Wright on Tenures, 190.
6. Treatise of Feuds and Tenures: ch. 2.
7. N.Y. Revised Statutes, vol. i. 718. sec. 3.
8. See Lib. Feud. Jib. 1. tit. 1. and lib. 2. tit. 5, 6, 7., where the vassal for life is termed fidelis, and every vassal was bound by oath to his lord quod sibi erit fidelis, ad ultimum diem vita contra omnem hominem, excepto rege et quod credentiam sibi commissam non manifestabit. Doctor Gilbert Stuart, in his View of Society in Europe, p. 87, 88., was of the same opinion, and he explored feudal antiquities with a keen spirit of research, sharpened by controversy. His work is deserving of the study of the legal antiquarian, if for no other purpose, yet for the sagacity and elegance with which he comments upon the sketches of barbarian manners, as they remain embodied in the clear and unadorned pages of Caesar, and the nervous and profound text of Tacitus.
9. Co. Litt. 42. a,
10. Co. Litt. 41. b. There are several subtle distinctions in the books, growing out of this topic, whereof students, according to Lord Coke, "may disport themselves for a time," and Mr. Ram has endeavored to do so, in a puzzling note to his recent Outline of the Law of Tenure and Tenancy, p. 33.
11. Bracton, lib. 4. ch. xxviii. sec. 1. Co. Litt. 42. a.
12. Lord Kenyon in Doe v. Luxton, 6 Term Rep. 289.
13. N.Y. Revised Statutxr, vo1. 1. 722. sec. 6.
14. Litt. sec. 35. 52. Co. Litt. 29. b. Paine's case, 8 Co. 34.
15. Litt. sec. 35.
16. Co. Litt. 30. a. Wright on Tenures, 193. 2 Blacks. Com. 126. In Normandy, according to the Coutumier, ch. 119. the curtesy lasted only during the widowhood of the husband. 1 Hale's Hist. C. Law, 219.
17. Feud. lib. 1. tit. 15. lib. 2. tit. 13.
18. Wright on Tenures, 194.
19. Glanville, lib. 7. ch. 18. Bracton, lib. 5. c. 30. sec. 7. Hale's Hist. Com. Law, ch. 9. In the form of the writ given by Sir Matthew Hale, in which Henry III. directs the English laws to be observed in Ireland, tenancy by the curtesy is stated even at that time, to be consuetudo et lex i nglice; and theMirror, ch. 1. sec. 3. says, that this title was granted of the curtesy of King Henry I.
20. In Scotland there is this variation in the curtesy from that in England, that the wife must have been seized of the estate as heir, and not have acquired it by purchase, though it is admitted there is no good reason for the distinction. Bell's Com. vol. i. 5th ed. 61.
21. Statute of Vermont, of 10thMarch, 1797, sec. 61.
22. Co. Litt. 29. a.
23. Perkins, sec. 457. 464. Co. Litt. 29. a. De Grey v. Richardson, 3 Atk. 469.
24. De Grey v. Richardson, 3 Atk. 469. Sterling v. Penlington, 7 Viner, 149. p 111.
25. Jackson v. Sellick, 8 Johns. Rep. 262. Clay v. White, 1 "Munf. 162. Green v. Liter, 8 Cranch, 249. Davis v. Mason, 1 Peters' U. S. Rep. 503.
26. Jackson v. Johnson, 5 Cowen,74.
27. Bush v. Bradley, 4 Day, 298. Kline v. Beebe, 6 Conn. Rep. 494.
28. 4 Day, ub. supra.
29. Gilbert, on Uses, by Sugden, 48. 440.
30. Sweetapple v. Bindon, 2 Vern. 636. Watts v. Ball, 1 P. Wins. 108. Chaplin v. Chaplin, 3 Ibid. 229. Cashborne v. Scarfe, 1 Atk. 603. Cunningham v. Moody, 1 Ves. 174. Dodson v. Hay, 3 Bro. 404.
31. Hearle v. Greenbank, 1 Ties. 298. 3 Atk. 716. S. C.
32. 1 Atk. 607.
33. Pitt v. Jackson, 3 Bro. 51. Morgan v. Morgan, 5Madd. Reps. 248. Amer. ed.
34. Bennet v. Davis, 2 P. Wms. 316.
35. This is so stated in Chaplin v. Chaplin, as reported in 7 Viner, 156. pl. 23., and the same thing is declared by Lord Hardwicke, in a case which Lord Loughborough cited from his note book, in 2 Tomes. J. 433.
36. 8 Co. 34.
37. Buckworth v. Thirkell, 3 Bos. & Pull. 652. note.
38. Buckworth v. Thirkell, 3 Bos. & Pull. 652. note. Butler's note 170. to Co. Litt. 241. a. Roper on Husband and Wife, vol. i. 36, 37. Preston on Abstracts of Titles, vol. iii. 384. Park on Dower, 172. 186. Mr. Butler, in speaking of limited fees, which by the grant are to continue only to a certain period, observes, that curtesy and dower will continue after the expiration of the period to which the fee was to continue. But where the fee was originally created by words importing an absolute fee, and by subsequent words, was made determinable upon some particular event, there the curtesy and dower cease with the estate to which the event is annexed. The case of Buckworth v. Thirkell, stands in the way of the doctrine of Mr. Butler, and Lord Mansfield decided that the case before him was one of a contingent and not of a conditional limitation. Lord Alvanley, in 3. Bos. & Pull. 654. cites the distinction of Mr. Butler, as worthy of attention, and Mr. Roper has varied it, and discussed it. Neither of them, as it would appear to me, have traced the lines of the distinction with satisfactory clearness and precision, or shown any sound principle on which it rests. The subject is replete with perplexed refinements, and it is involved too deep in mystery and technical subtleties, to be sufficiently intelligible for practical use. Here arises a proper case for the aid of the reformer. When any particular branch of the law has departed widely from clear and simple rules, or by the 'use of artificial and redundant distinctions has become uncertain and almost incomprehensible, there is no effectual relief but from the potent hand of the lawgiver.
39. Preston on Abstracts of Title, vol. iii. 385.
40. Sidney v. Sidney, 3 P. Wins. 276.
41. Co. Litt. 251. a. b. 302. b. 2 Inst. 309.
42. Laws N.Y. sess. 10. ch. 50. sec. 6.
43. Laws N.Y. sess. 10. ch. 48. sec.
44. N.Y. Revised Statutes, vol. i. 739. sec. 143. 145.
45. Litt. sec. 36. Perkins, sec. 301. N.Y. Revised Statutes, vol. 1. 740. sec. 1. Park's Treatise on the Law of Dower, 5.
46. Bracton, 92. a. Fleta, lib. 5. c.'23. sec. 2. Co. Litt. 30. b. In the customs of the ancient Germans recorded by Tacitus, De. nor. Gem. c. 18. dot em non azor marito, sod uzori maritus of ert. In this custom we probably have the origin of the right of dower, which was carried by the northern barbarians into their extensive conquests.; and when a permanent interest was acquired inland, the dower of the widow was extended and applied to real estate, from principle and affection; and by the influence of the same generosity, of sentiment which first applied it to chattels. Stuart's View of Society, p. 29, 30. 223-227. Olaus Magnus records the same custom among the Goths; and Dr. Stuart shows it to have been incorporated into the laws of the Visigoths and Burgundians. Mr. Barrington observes, that the English would probably borrow such an institution from the Goths and Swedes, rather than from any other of the northern nations. Observ. upon the ancient Statutes, p. 9, 10. Among the Anglo-Saxons, the dower consisted of goods, and there were no footsteps of dower in lands until the Norman conquest. 2 Blacks. Com. 129. Spelman, Gloss. ad vocem, deduces dos from the French, douaire; and Sir Marlin Wright says, that dower was probably brought into England by the Normans, as a branch of their doctrine of fiefs or tenures. Wright on Tenures, 192. In the French law, tenancy by curtesy is called droit de viduite. Oeuvres d. D', guesseau, tom. 4. 660.
47. Glan. lib. 6. o. 1.
48. Bracton, lib. 2. c. 39. sec. '. Fleta, lib. 5. c. 24. sec. 7.
49. C. 7.
50. Co. Litt. 31. a.
51. Co. Litt. 33. a. 7 Co. 42. Kenne's case. Doct. & Stu. 22.
52. Co. Litt. 31. b. Kelly v. Harrison, 2. Johns. Cas. 29.
53. Buchanan v. Deshon, 1 Harr. cr Gill. 280.
54. Sutliff v. Forgey, 1 Cowen, 89. 81bid. 713. S. C.
55. N.Y. Revised Statutes, vol. i. 740. sec. 2.
56. Litt. sec. 45.
57. F. N. R. 150. k. Co. Litt. 31. b.
58. Bro. tit. Dower, pl. 75. Litt. sec. 448. 681. Co. Litt. 31. A..
59. Perkins, sec. 371, 372.
60. Bancroft v. White, 1 Caines' Rep. 185. Embree v. Ellis, 2 Johns. Rep. 119.
61. Perkins, sec. 386, 367, '368, s69,370. Bro. tit. Dower, pl. 29.
62. Co. Litt. 32. a. D'Arcy v. Blake, 2 Sch. tjr Lef 387. Shoemaker v. Walker, 2 Serg. & Rawle 556.
63. Co. Litt. 31. b., and so declared in Nash r. Preston, Cro. Car. 190. and Sneyd v. Sneyd, 1 Atk. 442.
64. Holbrook v. Finney, 4 Mass. Rep. 566. Clarke v. Munroe, 14 Ibid. 551. Bogie v. Rutledge, 1 Bay, 312. Stow v. Tiflt, 15 Johns. Rep. 458.
65. Tabelee v. Tabelee, 1 Johns. Ch. Rep. 45. Swaine v. Perine, 5 Ibid. 482. Gibson v. Crehore, 5 Pick. 146. Russell v. Austin, 1 Page, 192. The N.Y. Revised Statutes, vol. i. 740. sec. 5 and 6. have incorporated in a statute provision these well settled principles in judicial jurisprudence.
66. Perkins, 333. 335. 338. Bro. tit. Dower, pl. 6. Finch's Law, p. 12s. gates' case, 1 Salk. 254. Mr. Park, in his copious and thorough Treatise on the Law of Dower, p. 61-73. discusses at large the embarrassing question, whether the interposition of a contingent estate of freehold, between a limitation to the husband for life, and a subsequent remainder to his heirs, will prevent dower. The prevailing language with the best property lawyers is, that a remainder to the heirs so circumstanced, is executed in possession in the tenant for life-sub modo, and that the estates are consolidated by a kind of temporary merger, until the happening of the contingency, and when it does happen, they divide and resume the character of several estates, so as to let in the estate originally limited upon that contingency. The anomalous notion of a remainder executed sub modo, involves insuperable difficulties, and it is not easy to perceive how dower can attach to an estate executed in the husband only sub modo, for dower at common law does not attach upon a mere possibility. If the wife has a title of dower upon such an estate, and the intervening, contingent remainder comes in esse after her title is consummated by the husband's death, as by the birth of a posthumous child, will the remainder take effect subject to the title of dower, or will it defeat and overreach that title? The better opinion, according to Mr. Park, is, that the husband would be considered as seized of several estates, ap initio, and the dower must consequently be defeated. Cordal's case, Cro. Eliz. 316. Boothby v. Vernon, 9 Nod.Rep.147. and Hooker v. Hooker, 2 Barn. K. B. 200. 232. are severely criticised in reference to this question. Mr. Fearne also speaks of estates executed sub modo, that is, to some purposes though not to all, as if an estate be granted to A. and B. for their lives, and after their deaths to the heirs of B., the estates in remainder and in possession are not so executed in possession as to sever the jointure, or entitle the wife of B. to dower. 'There is no merger of the estate for life, and a joint seizin of the freehold is a, bar to dower. And yet these estates are so blended, or executed in the possession, as to make the inheritance not grantable distinct from the freehold. Fearne on Remainders, 5th ed. 35, 36. To enter further into this abstruse learning, would be of very little use, as such recondite points rarely occur.
67. Perkins, sec. 342. 345. 347. Co. Litt. 3231. a. Par231 an Dower112.4.
68. Stoughton v. Leigh, 1 Taunt. Rep. 402. Coates v. Cheever, 1 Cowen, 460.
69. Griffith's Register. Swift's Dig. vol. i. 85. Stewart v. Stewart, 5 Conn. Rep. 317. Winstead v. Winstead, 1 Hayw. 243. In Connecticut, and probably in those other states, the husband cannot by will deprive his wife of her dower, for the estate in dower is cast upon the wife before the devise attaches.
70. Conner v. Shepherd, 15Mass. Rep. 164. Johnson v. Perley, 2 H. Rep. 56. Griffith's Register, tit. Maine.
71. Webb v. Townsend, 1 Pickering's Rep. 21.
72. Reed v. Morrison, 12 Serg. & Rawle, 18.
73. Griffith's Register, li. t. Frost v. Etheridge, 1 Badger 4 Der. 30.
74. Bro. tit. Dower pl. ii. Perkins, sec. 392.
75. Cro. Car. 191.
76. Lord Hardwicke, in Hinton v. Hinton, 2 Vesey, 631. Noel v. Jevon, 2 Freeman, 43.
77. 2. P. Wms. 700.
78. The rule in Chancery had been vacillating previous to that decision, though the weight of authority, and the language of the courts, were decidedly against the right to dower. Colt v. Colt, Reports in Chancery, vol, i. 134. Radnor v. Rotheram, Prec. in Chancery, 65. Bottomly v. Fairfax, ibid, 326. Ambrose v. Ambrose, l P. Wms. 321 were all opposed to Fletcher v. Robinson, cited in Prec. in Chancery, 250. and 2 P. Wms. 710.
79. Chaplin v. Chaplin, 3. P. Wms. 229. Godwin v. Winsmore, 2 Atk. 525. Sir Thomas Clarke, in Burges v. Wheate, 1 Blacks. Rep. 138. Dixon v. Saville, 1 Bro. 326. D'Arey v. Blake, 2 Sch.. Of Lef. 387.
80. Bird v. Gardner, 10 Mass. Rep. 364. Snow v. Stephens, 15 bid. 278. Fish v. Fish, 1 Conn. Rep. 559. Hitchcock v. Harrington, 6 Johns. Rep. '290. Collins v. Terry, 7 ibid. 278. Coles v. Coles, 15 ibid. 319. Titus v. Neilson, 5 Johns. Ch. Rep. 452. N.Y. Revised Statutes, vol. 1. 740. sec. 4. Montgomery v. Bruere, 2 Southard, 865. Reed v. Morrison, 12 Serg. & Rawle, 18. Heth v. Cocks, 1 Randolph, 344.
81. Tabele v. Tabele, 1 Johns. Ch. Rep. 45. Swaine v. Perine, 5 ibid. 482. Titus v. Neilson, ibid. 452. Peabody v. Patten, 2 Pick. Rep. 517. Gibson v. Crehore, 5 ibid. 146.
82. Jackson v. Dewitt, 6 Cowen, 316.
83. 2 Halsted, 392. 17Mass. Rep. 564.
84. Popkin v. Bumsted, 8Mass. Rep. 491. Bird v. Gardiner, 10 ibid. 364. Coates v. Cheever, 1 Cowen, 460. Jackson v. Dewitt, 6 ibid. 316.
85. Brown v. Gibbs, Prec. in Ch. 97. Carbone v. Scarfe, 1 Aik. 605
86. Shoemaker v. Walker, 2 Serg. & Rawle, 554. Reed v. Morrison, 12 ibid. 18. Statutes of Virginia, 1785 and 1792. Miller v. Beverly, 1 Hen. BfMunf. 368. Clairborne v. Henderson, 3 ibid. 322. Griffith's Reg.
87. See Rowton v. Rowton.. 1 Hen, 3..Mjnf. 9.2
88. Swaine v. Perine. 5 john. Ch. Rep. 482 Gibson v. Crehore, 5 Pickering, 146
89. Palmes v. Danby, Prec. in Ch. 137.
90. Stewart v. Waters, 1 Caines' Cas. in Error, 47. Jackson v. Willard, 4 Johns. Rep. 41. Huntington v. Smith, 4 Conn. Rep. 235. Eaton v Whiting, 3 Pick. Rep. 484. d Vol. i. 741. sec. 7.
91. Vol. i. 741. Sec.7
92. By the absolute estate, in the revised code, more was intended than the estate which is technically absolute at law on default of payment at the day. I presume the word absolute is here to be taken in the strongest sense. In Runyan v. Mersereau, 11 Johns. Rep. 534. it was held that the freehold was in the mortgagor before foreclosure or entry. If the morgagee enters without foreclosure, the freehold may then be shifted in contemplation of law; but still the mortgagee has not an absolute estate, so long as the equity of redemption hangs over that estate and qualifies it. According to the English law, the wife of the mortgagee would be entitled to her dower in such a case from the heir of the mortgagee, who died in possession, though the estate in dower would be defeasible, like her husband's estate, by redemption, on the part of the mortgagor. The words of the new revised statutes, were probably intended to stand for an estate with the equity of redemption finally foreclosed and absolutely barred. Upon that construction the restriction has been carried beyond the English rule,and, I apprehend, beyond also the necessity or reason of the case.
93. Perkins, sec. 311, 312. 317.
94. Perkins, sec. 376. It was, however, re-enacted in totidern verbis in New York in 1787. Laws N.Y. sess. 10. ch. 4. sec. 4., and it is in substance adopted and enlarged by the N.Y. Revised Statutes, vol. i. 742. sec. 16, which declares, that "no judgment or decree confessed by or recovered against the husband; and no lathes, default, covin, or crime of the husband, shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto."
95. Litt. sec. 393. Co. Litt. 240, h. Berkshire v. Vanlore, Winch. 77.
96. Perkins, sec. 381.
97. Perkins, sec. 379, 380. Park on Dower, 148.
98. Bro. tit. Tenures, p1. 33. tit. Dower, p1. 86. Paine's case, 8 Co. 34. Jenk. Cent. 1. case 6. p. 5.
99. Jenk. Cent. vb. sup. Preston on Abstracts of Title, vol, iii. 373. $teller's note 170. to Co. Litt. 241, a.
100. The cases of Sammes v. Payne, 1 Leon. 167. f oldsb. 81. Flavill v. Ventrice, Viner's Rbr. vol. ix. 217. F. pl. 1. Sumner v. Partridge, 2 Atk. 47. and Buckworth v. Thirkell, 3 Bos. & Pull. 652. n. are ably reviewed by Mr. Park; and the latter case, though decided by the K. B. in the time of Lord Mansfield, after two successive arguments, is strongly condemned as being repugnant to settled distinctions on this abstruse branch of the law.
101. Butler's note 170. to Co. Litt. 241. a. Sugden on Powers, 333. Preston on Abstracts of Title, vol. iii. 372. Park on Dower, 168186.
102. Greene v. Greene, 1 Hammond's Ohio Rep. 538. In that case the subject is ably discussed, and the whole volume is evidence of a very correct and enlightened administration of justice, in equity as well as in law.
103. N.Y. Revised Statutes, vol. i. 742. sec. 16.
104. 10 Co. 49. b. Lampet's case, Plowd. 504. Eare v. Snow.
105. Goodell v. Bingham, 1 Bos. & Pull. 192.
106. Butler's note 119. Co. Litt. 216. a., and note 330. to Co. Lit(.3?O. h. Gilbert on Uses. by Sugden, 321. note. Fearne on Remainders, vol. i. 437. note, 5th edit. Park on Dower, 85. 187, 188. Lord Eldon, in Maundrell v. Maundrell, 1o Vesey, 263. 265, 266. Heath. 1. in 3 Vesey, 657.
107. Butler's note 330. to lib. 3. Co. Litt.
108. Park on Dower, p. 93-99. has given us the conflicting opinions of such distinguished and largely experienced conveyancing counsel as Mr. Marriott, Mr. Wilbraham, Mr. Booth, and Mr. Filmer, who flourished in the middle of the last century, and he adds as his own opinion, that, strictly speaking, a purchaser is entitled to the concurrence of the trustee in every case in which that trustee is sui juris, and can convey without the expense of a fine. or an order in Chancery.
109. Laws N.Y. sess. 10. ch. 4. sec. 7. N.Y. Revised Statutes, vol. i. 741. sec. S. The statute of 1787 barred the wife of dower who eloped and lived with an adulterer, unless her husband was subsequently reconciled to her. The new revised statutes have abridged this ancient bar, by confining it to cases of a dissolution of the marriage contract; or else making it to depend on conviction of adultery in a suit by the husband for a divorce. It is declared that "in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. (See vol. i. 741.) Upon this provision it may be observed, that in case of a divorce a vinculo, dower would cease of course, and no such statute provision was necessary; and if there should be no divorce, or the husband should die before he had time or the means to obtain it, the adulteress could sue for and recover her dower. It is difficult to know what is exactly meant here by the term misconduct of the wife. It is much too vague and general to be the ground of such a penal forfeiture. In a subsequent branch of the revised statutes, (see vol. ii. 146. sec. 48.) it is declared, that if the wife be convicted of adultery, in a suit for a divorce brought by the husband, she forfeits her right of dower. The word misconduct must then have some other meaning, and apply to some other offense than adultery. Marriages are to be dissolved by the chancellor, when made within the age of consent, or when a former husband or wife is living, or when one of the parties is an idiot or lunatic, or the consent of one of the parties was obtained by force or fraud, or causa impotentice. (N.Y. Revised Statutes, vol. ii. 142, 143, 144.) It may be very difficult to know how far the term misconduct applies to these several causes of divorce, so directly as to work a forfeiture of dower. But in fact there was no need of the provision; for, as the law always stood, if the dowress was not the wife at the death of the husband, her claim of dower fell to the ground. 'The provision seems to be absolutely meanless, and it ought to be added, in justice to the revisers, that the bill, as originally reported by then, contained on this point the provision and the language of the old law. It would have been safer, and wiser, to have retained the plain, blunt style of the old law, and confined the loss of dower to a conviction of adultery, or else to have defined in precise terms the additional offense, if any, which was to destroy the dower.
110. Swift's Digest, vol. i. 86. Dane's Abr. vol. iv. 672. 676.
111. 2 Blacks. Com. 130.
112. N.Y. Revised Statutes, vol. ii. 145. sec. 45. Connecticut Statutes, 180. tit. Dower. Mass. Stat. 1785. c. 69.
113. Co. Litt. 36. b. Vernon's rase, 4 Co. 1.
114. Sidney v. Sidney, 3 P. Wms.269. Blount v. Winter, cited in note to 3 Plowd. 277. The Master of the Rolls, in Seagrave v. Seagrave, 7 3 Vesey, 443.
115. Co. Litt. 36. b.
116. Lord Hardwicke, in Hervey v. Hervey, 1 Atk. 56e, 563. Jordan v. Savage, Bacon's Abr. tit. Jointure, B. 5.
117. Drury v. Drury, 5 Bro. P. C. 570. 4 Bro. Ch. Rep. 506, note. See also Caruthers v. Caruthers, ibid. 500.
118. Laws of New York, sess. 10. ch. 4. per. P.
119. N.Y. Revised Statutes, vol. 1. 741. sec. 9, 10.
120. The provisions of the statute of 27. Hen. VIII, have always been in force in Massachusetts. Hastings v. Dickinson, 7Mass. Rep. 153. And they have been essentially re-enacted in Connecticut, though there the jointure may consist of personal as well as real estate. Swift's Dig. vol. i 86. So, in Virginia, if the widow be evicted of her jointure, she has still a right to claim her dower. Ambler v. Weston, 4 Hen. 4 JITunf. 23. The lawof jointure under the statute of 27 Hen. VIII. exists in Pennsylvania and South Carolina, (2 Const. Rep. by Treadway, 747. 1 Dallas, 417.) and doubtless it very generally prevails throughout the Union. In Pennsylvania it is left as a doubtful question, whether settlement of personal estate would be sufficient to bar the dower, and be held equivalent to a jointure. The case of Drury v. Drury, holding that an infant's dower may be barred by jointure, seems, however, to be assumed as the settled law. Shaw v. Boyd, 5 Serg. & Rawle, 309. But the N.Y. Revised Statutes would appear to have altogether omitted, for I do not perceive in them the provision in the former law, and in the statute of 27 Hen. Viii., allowing to the wife a compensation by dower in other lands on eviction from the lands placed in jointure.
121. Wake v. Wake, 3 Bro. 255. 1 Vesey, jun. 335. S. C. Duncan v. Duncan, 2 Yeates' Rep. 302.
122. Co. Litt. 36. b. Harg. note 224. to lib. 1. Co. Litt. Lawrence v. Lawrence, 2 Vern. Rep. 365. 1 Dallas' Rep. 117. McKean, Ch. J. Larrabee v. Van Alstyne, 1 Johns. Rep. 307.
123. Lord Alvanley, in French v. Dacres, 2 Vesey, jun. 578. Lord Redesdale, in Birmingham v. Kirwan, 2 Sch. 4 Lef. 451. Larrabee v. Van Alstyne, 1 Johns. Rep. 307. Van Orden v. Van Orden, 10 ibid. 30. Jackson v. Churchill, 7 Cowen's Rep. 287. Pickett v. Peay, 2 Const. Rep. S. C. 746. See also, Butler's and Baker's case, 3 Leon. 272, arg. Gosling v. Warburton, Cro. Eliz. 128:
124. French v. Davies, 2 Vesey's Rep. 572. Strahan v. Sutton, 3 Ves. Rep. 249. Kennedy v. Nedrow, 1 Dallas' Rep. 415. Adsit v. Adsit, 2 Johns. Ch. Rep. 448. Jackson v. Churchill, 7 Cowen's Rep. 287. Pickott v. Peay, 2 Const. Rep. S. C. 746. Evans v. Webb, 1 Yeates' Rep. 424. Perkins v. Little, 1 Greenleaf, 150.
125. Vol. i. 741. sec. 11, 12, 15, 14.
126. The statute of Virginia of 1727, gave the widow nine months, and the statute of Vermont, in 1799, sixty days, to make her election; and if she made none, she was held exclusively to her dower at common law.
127. N.Y. Revised Statutes, vol. i. 742. sec. 15.
128. Co. Litt. 31. b.
129. N.Y. Revised Statutes, vol. i. 740. sec. 3.
130. 3 Mason's Rep. 351.
131. Catlin v. Ware, 9 JVtass. Rep. 218. Lufkin v. Curtis, 13 Ibid. 223. Powell v. M. and B. Man. Company, 3Mason's Rep. 347.
132. N.Y. Revised Statutes, vol. i. 758. sec. 11. The law commissioners in England, appointed by the crown in 1828, to inquire into the law of England respecting real property, for the purpose of ascertaining what improvements could be made therein, reported, in 1829, several very essential and fundamental alterations in the shape of propositions. If adopted by Parliament, they would remove a great deal of existing inconvenience, injustice, and absurdity, and assimilate the English law of real property, much more than it is at present, with the law of property in the United States.
Under the head of curtesy, they propose, (1.) That curtesy shall attach upon all hereditaments whereof the husband and wife were seized in law during the coverture, equally as if such seizin had been obtained in fact. (2.) Upon all hereditaments to which the husband and wife had a right in possession during coverture, although seizin thereof may not have been obtained: (3.) The right shall attach, notwithstanding there may have been no issue of the marriage, upon all hereditaments or property to which the same would have attached if issue had been born. (4.) If the deceased wife left issue living by a former husband entitled to her estate as her heir at law, the curtesy shall attach only upon an undivided moiety of such estate.
Under the head of dower, they propose, (1.) That dower shall attach at law upon hereditaments to which the husband, at his death, had a right, though e may not have had seizin thereof. (2.) The wife shall be entitled to dower in equity, out of all such hereditaments which belonged to the husband at his death, and, from their nature, subject to dower, as would, by the rules of equity, be subject to the husband's curtesy, had the same belonged to her, and the husband had survived her. (3.) The husband may, by conveyance or devise, bar his wife's dower, in all cases in which e might, by conveyance or devise, bar his heirs or issue in tail; and the widow's right of dower is likewise made subject to all charges and encumbrances made by the husband, and to his debts and contracts, in all cases in which his heir or devisee would be subject.
133. Co. Litt. 124. b.
134. Ch. 7.
135. N.Y. Revised Statutes, vol. i. 742. sec. 17.
136. Litt. sec. 43. Co. Litt. 32. b. 37. a. Doe v. Nutt, 2 Carr 4 Payne, 430. Jackson v. O'Donaghy, 7 Johns. Rep. 247. Jackson v. Aspell, 20 ibid. 411. Jackson v. Vanderheyden, 17 ibid. 167.Chapman v. Armstead, 4Munf 382. Moore v. Gilliam, 5 ibid. 346. Johnson v. Morse, 2 N. H. Rep. 49. Sheaffer v. O'Neil, 9 Nags. Rep. 13.
137. Den v. Dodd, Halsted, 367.
138. 3 Halsted, 129.
139. Stedman v. Fortune, 5 Conn. Rep. 462. Griffith's Reg. tit. Kentucky.
140. Branson v. Yancy, 1 Bad. & Dev. Eq. Cas. 12. If it be the case, that in North Carolina the quarantine is enlarged for a year, it is a revival of the ancient law of England, and this enlarged quarantine, Lord Coke says, was certainly the law of England before the conquest. Co. Litt. 32. b.
141. Co. Litt. 32. b. 2 Inst. 2".
142. P. 307.
143. Litt. sec. 36. In the state of Alabama, the whole of the husband's mansion house is to be included in the one third, unless manifestly unjust. Griffith's Reg.
144. Co. Litt. 144. b. Popham, 87.
145. Co. Litt. 32. a. Perkins, sec. 342. 415. Park on Dower, 112. 252.
146. Stoughton v. Leigh, 1 Taunt. Rep. 409.
147. 5 Bos. & Pull. 33.
148. Litt. sec.44. Co. Litt. 32. b.
149. Co. Litt. 31. a.
150. Decided in the Supreme Court of New Hampshire in 1808, 1 Greenleaf, 54. note.
151. Judge Reeve puts the following case for illustration. If A. sells to B., and B. to C., and C. to D., and D. to E., and the husbands all die, leaving their respective wives living, the widow of A. is entitled to be endowed of one third of the estate, the widow of B. is entitled to be endowed of one third of what remains, after deducting the dower of the first wife, the widow of C. of one third of what remains, after deducting the dower of the wives of A. and B.; so on to the wife of D. And if we suppose the estate to consist of nine acres, the wife of A. would be endowed of three acres, the wife of B. of two acres, the wife of C. of one acre and a third, and the wife of D. of one third of the remaining two acres, and two thirds. Reeve's Domestic Rela-, tion, p. 58.
152. Perkins, sec. 406.
153. Co. Litt. 32. a. Harg% note, 192, ibid.
154. Co. Litt. 32, b.
155. Co. Litt. 32. b
156. Fitz..Rbr. tit. Voucher, 288. and tit. Dower, 192. cites 17 Hen. III. Perkins, sec. 328.
157. Sir Matthew Hale's MSS. cited in Harg. Co. Litt. n. 193. to lib. 1. Co. Litt.
158. Humphrey v. Phinney, 2 Johns. Rep. 484. Catlin v. Ware, 9Mass. Rep. 218. Powell v. M. & B. Man. Co. 3 Mason's Rep. 347. Thompson v. Morrow, 5 Serg. & Rawle, 289. Hale v. James, 6 Johns. Ch. Rep. 258. Russell v. Gee, 2 Const. Rep. S. C. 994.
159. Hale v. James, 6 Johns. Ch. Rep. 258. Powell v. M. & B. Man. Co. 3Mason's Rep. 450.
160. Story, J. 3 Mason's Rep. 368.
161. 3 Mass. Rep.. 544.
162. 5 Serg. & Rawle, 289.
163. 3 Mason's Rep. 375.
164. 11 Johns. Rep. X10.
165. 13 Johns. Rep. 179.
166. Laws N.Y. sess. 29. Ch. 168.
167. 2 Johns. Rep. 484.
168. In the case of Powell v. M. & B. Man. Co. 3 Mason's Rep. 573. it was suggested, that in Hale v. James, 6 Johns.Ch.Rep. 258, the Chancellor adhered to the rule that the value of the land at the time of alienation, was to be taken and acted upon as a clear rule of the common law, and that the common law authorities do not warrant any such doctrine. I am rather of the opinion that they do warrant the doctrine to the extent the Chancellor meant to go, viz. that the widow was not to be benefitted by improvements made by the alienee. That position does not seem to be denied, and in Hale v. James, as well as in Humphrey v. Phinney, nothing else was decided, for nothing else was before the court. In the former case, the Chancellor did not mean to give any opinion on the distinction between the increased value, arising from the acts of the purchaser and from collateral causes i and so he expressly de= Glared.
169. Vol. i. 742. sec. 19,!20,:1, to-, 28:
170. Co. Litt. 35. a.
171. Perking, sec. 419. Co. Litt. 384. b.
172. 9 Co. 176
173. N.Y. Revised Statutes, vol. i. 793. sec. 23.
174. Davenport v. Wright, Dy. 224. a. Sheppard', Touch. by Preston, Col. i. 28.32. Park on Dower, 311.
175. 1 Tre!. Con. Rep. S. C. 112.
176. 5 Dens. Ch. Rep. 555.
177. Oliver v. Richardson, 9 Vesey, 222. See also, Swaine v. Perine,5 John#. Ch. Rep. 482.
178. Vol. i. 742. sec. 18.
179. In the report of the English real property commissioners is 1829, it Was proposed, that no suit for dower should be brought unless, within twenty years next after the death of the husband, and that an account of the rents and profits of the dowable land. should be limited to six years next before the commencement of the suit. This is the rule precisely in the N.Y. Revised Statutes, (see supra,) and in vol. ii. 303. '343. the writ of dower, as well as all other real actiowe, is abolished, and the action of ejectment substituted and retrained, after dismissing all the fictitious parts of it. The real actions are still retained in several of the United States. In Massachusetts is particular, the writ of right, and the possessory real actions, are not ply preserved, but they are in active and familiar use in all their varied forms and technical distinctions, after having become simplified, and rendered free from every troublesome encumbrance that perplexed the ancient process and pleadings. Under the free, liberal, and plastic genius of that republic, the pleadings remain admirable specimens of simplicity, brevity and precision, and display their clear, strong, and accustomed logic. It is a singular fact, a sort of anomaly in the history of jurisprudence, that the curious inventions, and subtle, profound, but solid distinctions which guarded and cherished the rights and remedies attached to real property in the feudal ages, should have been transported, and remain rooted, in a soil that never felt the fabric of the feudal system; whilst, on the other hand, the English parliamentary commissioners, in their recent report, have proposed a sweeping abolition of the whole formidable catalogue of writs of right, writs of entry, writs of assize, and all the other writs in real action, with the single exception of writs of dower, and quare impedit. This we should hardly have expected in a stable and proud monarchy, heretofore acting upon the great text authority of Lord Bacon, that "it were good if men, in their innovations, would follow the example of time itself, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived."
180. Goodenough v. Goodenough, Dickens, 795. Curtis v. Curtis, 2 Bro. 620. Mundy v. Mundy, 4 Bro. 295. 2 Vesey, jun. 122. S. C.
181. Swaine v. Perine, 5 Johns. Ch. Rep. 482. Greene v. Greene, 1 Hammond's Rep. 535. Dr. Tucker, note to 2 Blacks. Com. 135.. n. 19.
182. Harrison v. Eldridge, 2 Halsted, 401, 402.
183. N.Y. Revised Statutes, vol. ii. 488-492. Coates v. Cheever. 1 Cowen,46d.
184. Perkins, sec. 521. Dy. 316. pl. 2. The Statute of Merton, 20 Hen. III. had this provision, and it has been frequently re-enacted in this state, and is included in the new revision of our statute laws N.Y. Revised Statutes, vol. i. 743. sec. 25.
185. Co. Litt. 41. b.
186. Co. Litt. 93. a. b.
187. Oland's case, 5 Co. t.16. Debow v. Titus, a Halsted, t5&.
188. Co. Litt. 55. b.
189. See vol. iii. 376.
190. Bevans v. Briscoe, 4 B arr. 6s Johns. 139.
191. Lord Hardwicke, in Casborne v. Searfe, 1 At/c. 606. Revel v. Watkinson, 1 Vesey, 93. and in Amesbury v. Brown, 1 Vesey, 480. Tracy v. Hereford, 2 Bro. 128. Penhyrn v. Hughes, 5 Vesey, 99.
192. Lord Eldon, in Earl of Buckinghamshire v. Hobart, 3 Swanst. 199
193. Roe v. P gson, 2 Arddd. Rep. 581. Amer. ed.
194. Rowel v. Walley, 1 Rep. in Ch. 219.
195. 4 Vesey, 24.
196. Lord Eldon, in White v. White, 9 Vesey, 560. Allan v. Back-house, 2 Ves. & Beam. 65.
197. 5 Vesey, 99.
198. Vide supra.
199. Neither Mr. Hargrave nor Mr. Park were able to find any authority declaring that the dowress was chargeable with permissive waste, though both of them were of opinion that she was answerable. Harb. 377, to lib. 1. Co. Litt. Park on Dower, 357.
200. Co. Litt. 53. a. b. Butler's note 122. to lib. 3. Co. Litt. Danc'' Abr. vol. 3. tit. waste. passim. 2 Blacks. Com. 281.
201. Jackson v. Brownson, 7 Johns. Rep. 227.
202. Hastings v. Crunckleton, 3 Yates Rep. 261.
203. Conner v. Shepherd, 15Mass. Rep. 164.
204. Findly v. Smith, 6 Munf. 134. Crouch v. Puryear. 1 Rand's Rep.253.
205. Parkins v. Coxe, 2 Hayw. 339.,
206. Ibid. 110.
207. Co. Litt. 54. a. 2 Inst. 145. 303.
208. White v. Wagner, 4 Harr. 8r Johns. 373.
209. In the case of the Governors of Harrow School v. Alderton, 2 Bos. & Pull. 86. we have the ancient action of waste on the statute of Gloucester, in which the plaintiff is entitled to recover the place wasted and treble damages
210. Co. Litt. 53. b. 54. a.
211. Perrot v. Perrot, 3.1tk. 94. Aston v. Aston, 1 Vesey, 264. Vane v. Barnard, 2 Vern. 738. Lord Thurlow, in Tracy v. Hereford, 2 Bro. 138. Kane v. Vanderburgh, 1 Johns. Ch. Rep. 11. The N.Y. Revised Statutes, vol. i. 760. sec. 8. have incorporated the doctrine of these chancery decisions, so far as to give to the person seized in remainder or reversion, an action of waste for an injury to the inheritance, notwithstanding any intervening estate for life or years. The statute remedy was first introduced, and smothered, amidst the multiplied temporary provisions of the Supply Bill in 1811, and I presume it was intended to meet the difficulty of some special case. Laws N.Y. sess. 34. ch..246. sec. 47. The recovery in such a case must be without prejudice to the intervening estate for life or years; and the courts will still have to supply by construction the want of specific provision in the statute, as to the disposition of the place wasted and the damages. In Massachusetts, by statute, the person having the next intermediate estate of freehold, may also bring an action of waste against a dowress. Jackson on Pleadings in Real Actions, p. 329,
212. Pillsworth v. Hopton, 6 Vesey, 51. Storm v. Mann, 4 Johns Ch.Rep. 21
213. Gibson v. Wells, 4 Bos. & Pull. 290. Herne v. Bembow, 4 Taunt. Rep. 764.
214. See the just and able criticism by counsel on those decisions, in 4 Harr. Bf Johns. 378, 379. 388, 389, and the dictum of Johnson, J. ibid. 393.
215. 6 Edw. I. c. 5.
216. 2 Inst. 299.
217. 5 Co. 13.
218. Reeve's Hist. of the English Law, vol. ii. 73. 148. By the common law, says Lord Coke, 2 Inst. 300. the punishment for waste against the guardian, was the forfeiture of his trust, and damages to the value of the waste. So the tenant in dower yielded the like damages, and had a keeper set over her to guard against future waste.
219. Laws N.Y. 1787. sess. 10. ch. 6. Act of Virginia, 1794. ch. 139.
220. Cameron & Norw. N: C. Rep. 26. Ch. J. Parsons, in 4Mass. Rep. 563. Johnson, J. in 4 Harr. 8s Johns. 391. Mr. Dane, in his General Abridgment and Digest of American Law, vol. 3. ch. 78. art. 11. sec. 2.-art. 13. sec. 3, 4, 5.-art. 14. sec. 2. says, that the statute of Gloucester was adopted in Massachusetts as part of their common law as to the remedial part only, but not as to the forfeiture of the place wasted and treble damages. The statute of 1783 gave the forfeiture of the place wasted, and single damages against the tenant in dower. On the other hand, Judge Jackson, in his Treatise on the Pleadings and Practice in Real Actions, p. 340. follows the opinion of Ch. J. Parsons, and considers the common law of Massachusetts. to be, that the plaintiff will generally, in the action of waste, recover the place wasted and treble damages. The weight of authority is on that side; but while I leave this point as I find it, resting on these conflicting opinions, I take this occasion to say, that I think it must somewhat startle and surprise the learned sergeants at Westminster Hall, if they should perchance look into the above treatise of Judge Jackson, or into the work of Professor Stearns on the Law and Practice of Real Actions, to find American lawyers much more accurate and familiar, than, judging from some of the late reports, they themselves appear to be, with the learning of the Year Books, Fitzherbert, Rastel, and Coke, on the doctrines and pleadings in real actions. Until the late work of Mr. Roscoe on actions relating to real property, and which was subsequent to that of Professor Stearns, and contains great legal learning, there was no modern work in England on real actions to be compared with those I have mentioned. Those abstruse subjects are digested and handled by Judge Jackson with a research, judgment, precision, and perspicuity, that reflect luster on the profession in this country. I have recently been informed, that the Supreme Court of Massachusetts have decided the question of the forfeiture in waste, in accordance with the opinions which Ch. J. Parsons and Judge Jackson had previously expressed.
221. By the New York Revised Statutes, vol. ii. 334, 335. 343. the writ of waste, as a real action, is abolished, but an action of waste is substituted, in which the first process by summons is given, and the judgment to be rendered is, that the plaintiff recover the place wasted, and treble damages.
222. Lord Coke says, that burning the house by negligence or mischance is waste; and Lord Hardwicke speaks generally, that the destruction of the house by, fire is waste, and the tenant must rebuild. Co. Litt. 53. b. 1 Vesey, 462.
223. Harg. note 3'77. to lib. 1. Co. Litt.
224. 4 Harr. 8r Johns. 381-385.
225. Nihil de jure facere potest quis quod vertat ad exhceredationem Do vnini sui-si super hoc convictus fuerit fcedum de jure amittet. Glanville, lib. 9. ch. 1. Litt. sec. 415. 2 Blacks. Com. 274
226. Co. Litt. 251. b. 252. a. 356. a. 2 Inst. 309. Statute of Gloucester, 6 Edw. I. c. 7. Preston on Abstracts of Titles, vol. i. 352-356. In Sir William Pelham's case, 1 Co. 14. b. it was adjudged, that if a tenant for life conveyed in fee, by bargain and sale, and then suffered a common recovery, he forfeited his life estate; but in Smith v. Clyfford, 1 Term Rep. 738. it was held, that the estate of a tenant for life was not forfeited by suffering a recovery. Mr. Preston thinks the elder case the better decision and authority; (1 Preston on Convey. 202) but Mr. Ram, in his Outline of the Law of Tenure and Tenancy, p. 125-140. has discussed this point, and examined those authorities, with much ability, and he holds the latter decision to be sound, on the ground, that the recovery, being absolutely void, was harmless. We, in this country, have very little concern with such questions, but this instance strikingly illustrates the matchless character of the English jurisprudence for stability, and the spirit which sustains it. Here were two cases, at the distance of two centuries apart, on an abstruse and technical point of hard law, and the attention of two learned lawyers is immediately attracted by the seemingly apparent contrariety between them. The one justifies the latter case by showing that it went on new ground furnished by the statute of 14 Eli,:., subsequent to the first case; whereas the other, not being able to reconcile the cases on principle, condemns the latter decision with unceremonious and blunt severity.
227. 2 Inst. 309.
228. N. Y Revised Statutes, vol. i. 739. sec. 143. 145. McKee v. Pfout, 3 Dallas, 486.
229. Co. Litt. 229. a. Gilbert on Tenntre, Tit. discontinuance, 1 t232'.
230. Doe v. Danvers, 7 East's Rep. 321. Wells v. Prince, 9Mars. Rep. 508, Jackson v. Mancius, 2 Wendell, 357.