Jackson v. Edwards.

adjudication. Here, then, was the very strongest prima facie evidence and authority that could be imagined for thinking the title imperfective and defective. The purchasers ought not to be required to take the deeds until that objection was cured. But it was not until more than two years, 940 days after the sale, that the vice chancellor's decision was reviewed before the chancellor, who then came to a different conclusion on the effect of the decree and conveyance under it. As this is one of the points of the appellants in this case, though it may not now be necessary to the decision of the case, it cannot even yet be considered as settled until decided here.

Under such a state of facts, it seems to me that the purchasers ought not to be compelled to take a title, the validity of which, so far, depended upon the contingent and doubtful fact of a higher court reversing the (as yet) uncontradicted decision of the court under whose authority the whole transaction took place: which decision, therefore, was to be regarded for the time, at least, as the law of the case. It would be inequitable to compel purchasers to take a title which would certainly, for some time to come, possibly always, be considered too defective to enable them to make a perfect and satisfactory conveyance to other purchasers. If the decision of this point should eventually be in conformity with the chancellor's view of it, and in opposition to that of the repeated decision of the vice chancellor, still that should have no retro-active effect upon the well founded doubt and consequent long delay which embarrassed the title. I do not say that such an objection, founded on a decision finally reversed, would alone form a good and sufficient defence; but I hold that this difficulty, as a necessary cause of delay, taken in conjunction with the other circumstances of the case, which shew that such a delay, from whatever cause was most injurious to the interests of he buyers, and that the bids would not have been made. had such a result been anticipated, forms a reasonable and equitable defence for refusing to complete the contracts.

These reasons are sufficient for the decision of the cause. The other question involved in it, on which the two courts

Jackson v. Edwards.

below have differed, is so important in itself, and has been so fully and ably argued before us, as well as in the opinions of the chancellor, and the vice chancellor of the first district, that I cannot pass it over in silence-more especially, as the views taken of it by other members of this court may govern their votes in this cause, though my owe vote for affirmance rests upon the reasons already stated, quite independent of the soundness of either doctrine.

I agree, however, with the positions of the chancellor, that a sale in partition divests the inchoate rights of dower of the wife of a tenant in common, if she has been made a party to the suit; and that purchasers under the judgment or decree will be protected against all future claims on her part. By the statute regulating partitions, the conveyance of the commissioners and the deed of the master are both declared to be a bar, both in law and equity, against all persons interested in the lands in any way, who shall be named in the proceedings; and provisions are expressly made for bringing to the knowledge of the court the rights and titles of all persons having any interest in the lands to be partitioned. The wife's right of dower in land, though its possession is contingent upon survivorship, is still an interest, and one which our laws have expressly recognized as such in regulating the manner of releasing it by deed. When the property is once converted into money, the doctrine of annuities and reversions and the tables of probabilities of lives and survivorships, afford an easy and fair mode of ascertaining the probable and equitable proportion of the wife's interest, and other future and contingent interests as well as the value of present estates in dower or by the curtesy. The statute itself has expressly recognized the "principles of law applicable to annuities," as affording the equitable rule of compensation in some of these cases, and it is within the power of the court, and therefore its obvious duty, to apply the same principles to ascertain the value of similar estates or interests, and to direct the same to be secured, unless such provision should be expressly or impliedly waived by the party immediately interested. I therefore hold with the chancellor, that "in all such cases it will be the

Jackson v. Edwards.

duty of the court to ascertain and settle the value of such future estates and interests, in analogy to the express provisions of the statutes relative to the shares of parties who have present estates for life in possession."

But the validity of the sale does not necessarily depend upon the just application and apportionment of the fund raised by it. The latter, though an important part of the duty of the court, may be carelessly or erroneously performed, or its performance may be waived by the negligence or the acquiescence of the parties; but in neither case ought the sale and the conveyances under it to be disturbed. When such a sale has been decreed without fraud or collusion, that equitable doctrine, so lucidly stated by Lord REDESDALE, applies in full force: The general impression of all the cases is, that a purchaser has a right to presume that the court has taken the steps necessary to investigate the rights of parties, and that it has on investigation properly decreed a sale. Then he is to see that this is a decree binding the parties claiming the estate, that is to say, that all proper parties to be bound are before the court; and he has further to see that taking the conveyance, he takes a title which cannot be impeached aliunde. He has no right to call for protection from a title not at issue in the cause and no way affected by the decision; but if he gets a proper conveyance of the estate, although the decree may be erroneous, and therefore to be reversed, the title of the purchaser ought not to be invalidated." 2 Sch. & Lef. 577. The vice chancellor's great difficulty in coming to this conclusion seems to be, that as the law now stands the wife cannot be compelled to accept a settlement from her husband in lieu of dower, and that our statutes are explicit that no act or deed, without the assent of the wife, legally evidenced, shall prejudice her right to dower. "How then," he asks, "can the courts say that the act of the husband in subjecting his wife to a partition suit, or that a judgement or decree rendered therein without her assent evinced, is to have the effect of barring her right or that she shall accept a pecuniary or any other provision in lieu of her dower?" But the policy of the law is clearly only the protection of the wife's dower against the abuse of

Jackson v. Edwards.

Now a sale in partition

the husband's power and his acts. cannot be the mere act of the husband. It must be shewn to be necessary for the general benefit of all interested in the lands. To such a necessity, when allowed by the court, the husband's right of property gives way, either with or without his consent; then the inchoate right of dower being but an incident, must follow. It does so, not only in this case, but in many analogous ones, where private property is taken for public use and pecuniary compensation allowed, as in lands taken for streets in cities, for roads or for canals. In this instance of a partition sale, the sale is not allowed to be made for the purpose of divesting the wife's dower, but it is made because the interest of numerous joint owners demands it. The wife's future claim of dower is then divested, not by act of her husband but by the necessary operation of law; and the only question that then remains is, how shall the value of that interest be best ascertained, and when so ascertained, secured. The chancellor has, in my judgment, shown conclusively how this can and ought to be done.

Much of the objection to this interpretation of the statute rests, in my opinion, upon an indistinct and inaccurate notion of its operating to destroy previously vested incipient. rights of dower. But a construction of the statute according to the natural and obvious sense of the words it employs, should not be prevented by any vague idea of its working an unwarrantable invasion of rights of property, justly held precious in our law. The operation of the statute of partition upon such rights of dower, is precisely of the same nature with the operation of all other statutes that in any way affect real estate. The right of dower, like all other rights of property, whether actual, initiate or contingent, is subject to such alterations or modifications of its future character as the policy of the statute law may prescribe. Inchoate rights of dower, like other rights if vested before the enactment of a new statute, may be beyond its operation. I will not venture, thus extra-judicially, to say how far and when such an exemption from a new statute would apply as to prior rights; but certainly all other rights of dower, like all other estates acquired after the passing of a statute, must

Norton v. Woods.

be wholly governed and modified by it. Every such right of dower, then, acquired by marriage since the revised statute of 1830, or any prior statute from which it was re-enacted, is subject to the regulations and requisitions of such statute, whatever may be the effect upon prior marriages. Amongst these regulations must be classed the effect of master's or commissioner's conveyance on a sale in partition, making it "a bar in law and equity against all persons interested in any way in such lands, who shall have been named as parties in the proceedings in partition," as the wife's inchoate dower is surely an interest in some way.

In the present case the marriage was after the statute and must be governed by it, whatever might have been the case as to a marriage prior to any similar provision: on which I offer no opinion.

On the question being put, Shall this decree be reversed? all the members of the court present who had heard the argument answered in the negagtive. Whereupon the decrec of the chancellor was AFFIRMED.*

NORTON, appellant, and W. & D. Woods, respondents.

Whether a party sued at law by a co-partnership can avail himself of the answer of one of the members of the firm to a bill of discovery filed after the dissolution of the firm, and when the interest of such member in the subject matter of the suit has ceased, quere.

Whether a defendant who omits to file such bill of discovery, during the pendency of the suit at law, can subsequently file a bill in chancery for relief, quere.

APPEAL from chancery. An action of assumpsit was brought in the supreme court in the names of H. Bulkley A. Bishop and W. Woods against Norton, for money paid Previous to the commencement of the suit, a partnership

* See Zimmermann v. Rapp, 20 Wendell, 101 as to the omission to make the wife a party to a suit in partition, and the construction put by the chief justice upon the act for the partition of lands, passed 16th March, 1785.