CHAPTER XXX. DOWER WHERE THE WIFE HAS JOINED IN A CONVEYANCE 1. It is a question upon which the cases are not entirely agreed, whether the wife shall have dower where she has joined her husband in a conveyance fraudulent as to creditors, and the creditors have afterwards avoided such conveyance. The weight of authority, however, appears to support the claim to dower in such case. 2. In the Manhattan Company v. Evertson,' one G. B. Evertson and his wife had joined in a mortgage of certain lands to the complainants in 1824. In 1827 they made absolute conveyances of the same premises to J. R. Evertson, their son; he, at the same time, executing a separate declaration of trust, among other things, to sell the lands, and after paying the incumbrances thereon, to pay one J. Emott $1500. Afterwards the lands became subject to other incumbrances, both by judgment and mortgage, against G. B. Evertson, the grantor in the deeds. Upon proceedings in foreclosure by the Manhattan Company, on their mortgage, there remained, after satisfying the decree, a surplus of about $8000, for distribution. It was insufficient to pay all the liens upon the premises, and G. B. Evertson having deceased, the question arose whether his widow was entitled to be endowed of the surplus. Upon this point the vice-chancellor held as follows: "Mrs. Evertson, the widow of G. B. Evertson, is not entitled to dower in the surplus. I am inclined to the opinion that the deeds of the 12th and 19th February, 1827, from G. B. Evertson and wife to J. R. Evertson, were, as between the parties thereto, valid; that the whole title and interest of the grantors passed to the grantee, subject only to the trusts specified and expressed in the declaration of trust executed by J. R. Evertson, and that no beneficial interest reverted or 1 The Manhattan Co. v. Evertson, 6 Paige, 457. resulted to G. B. Evertson and wife, or either of them, excepting what was so expressed and specified. But if it is otherwise, and all the beneficial interest of the grantors, after the performance of the specified trusts, resulted or reverted to G. B. Evertson, as contended by counsel, still Mrs. Evertson is not entitled to dower in that trust estate. (4 Kent's Com. 46; Banks v. Sutton, 2d ed. 2 P. Wm. 700; Chaplin v. Chaplin, 3 Id. 229; 1 Cruise's Dig. 488.) The second exception is therefore allowed. The deeds of the 12th and 19th February, 1827, were executed at a time when G. B. Evertson, the grantor, had become embarrassed in his circumstances, and the grantee was his son, and no consideration appears to have been paid. Under these circumstances, although the trusts specified in writing are fair and honest and ought to be performed, and the deeds are to be deemed valid to that extent, yet in all other respects they are inoperative as against the creditors of G. B. Evertson." Upon appeal, the decree of the vice-chancellor was affirmed. "Whether the conveyances from G. B. Evertson and wife to J. R. Evertson, were absolutely void as against the creditors of the grantors," said the chancellor, "or operated as a valid transfer of the legal title, subject to a resulting trust in G. B. Evertson for the surplus, after paying the mortgage to the complainants, the vice-chancellor was right in supposing the widow was not entitled to dower in the surplus. In either case as between the grantors and grantee, the legal title passed to the latter; and previous to the revised statutes the widow could not be endowed of a mere equity. It is very evident, however, from the facts in the case, that although the legal title passed to J. R. Evertson by the conveyances, they must be considered as void as regards the rights of the creditors of G. B. Evertson, except so far as those rights were protected by the declaration of trust." 3. The case of Den v. Johnson was an action of ejectment brought by a creditor to recover lands levied on and sold under execution on a judgment in his favor against the husband. The defendant claimed under a conveyance from the husband and wife anterior to the date of the judgment. The creditor introduced the wife of the debtor to prove the deed fraudulent, and she so testified. A question was made as to her competency. Upon this point, Dayton, Judge, said: "On the ground of her 1 See post, 9. 2 Den n. Johnson, 3 Harr. 87. personal interest, she was unquestionably competent. The verdict in that case could not, in any respect, affect her. It would never be given in evidence upon any question touching her rights. It was said on the argument that she was swearing in behalf of her own dower. But how? The verdict could not affect that question either directly or indirectly. The object of her evidence was to show that the deed to Johnson was without consideration, and therefore void as against creditors, not as against the grantors; as to them it was perfectly valid in any event, and her dower was unquestionably gone." Hornblower, Chief Justice: "It is said that Mrs. Warings had a personal interest in defeating the deed, inasmuch as it barred her dower, she having executed and acknowledged it. But this is a mistake. If she proved the deed fraudulent as to creditors, she did not thereby restore her husband's title to the land, nor her own right to dower. As against her husband and herself, the deed would remain, both at law and in equity, a perpetual bar." In this case, it would seem, from the facts elicited, that the wife was entirely cognizant of the fraud at the time she joined her husband in the execution of the deed. 4. But in Massachusetts, Ohio and Illinois a contrary doctrine is held. In Massachusetts, the question was directly presented in the case of Robinson v. Bates.1 In that case the wife joined her husband in a conveyance of land, relinquishing to the grantee her right of dower. A creditor of the husband, afterwards, and during the lifetime of the husband, levied an execution on the land, and recovered it in a real action against the grantee, on the ground that the conveyance was fraudulent and void as against creditors. Upon the death of the husband, proceedings were instituted by his widow for dower, and the question arose whether she was barred by her release in the fraudulent deed. The court decided that she was not barred: "But there is another answer to this objection to the demandant's title," the court observed, "which is entirely satisfactory and conclusive. The tenant, at the time, offered to prove that the conveyance to Jacobs was fraudulent and void as to the creditors of the grantor, and that, on that ground he had recovered judgment for the possession of the premises, against the assignees of the said Jacobs. Now, we are of opinion that the VOL. I.-41 1 Robinson v. Bates, 3 Met. 40. tenant, having avoided the deed to Jacobs, can not now be allowed to set it up as a bar to the demandant's claim. In Stinson v. Sumner, 9 Mass. 143, it was decided that where a wife releases her claim of dower, by joining her husband in a conveyance, and the purchaser recovers back the purchase-money on account of the grantor's defect of title to the land, the release of the wife thereby becomes inoperative, and does not bar her right of dower after her husband's decease. The principle on which that decision is founded applies conclusively to the present case. The tenant has avoided the deed of the husband, and defeated the estate on which the demandant's release of dower was intended to operate. By law, therefore, and in justice, she was thereby restored to her former rights.” 5. At the time of the conveyance in the above case, there was in force in Massachusetts a statute which contained the following provision: “All the lands, tenements, and hereditaments of which an intestate died seised, and also all such estate which he had fraudulently conveyed with intent to defraud his creditors, shall be liable for the payment of his debts, and may be recovered and applied thereto, saving to the widow her dower therein, except in the estate so fraudulently conveyed, to which she had legally relinquished her right of dower." It was insisted that the effect of this statute was such as to entirely defeat the claim of dower. The court, however, thought otherwise: "The execution under which the tenant claims title," they said, “was extended on the premises in the lifetime of the demandant's husband, and is not, therefore, within the letter or meaning of the statute, which is expressly limited to the lands, tenements, and hereditaments of an intestate, and to the proceedings after his death. If the demandant's dower is subject to forfeiture, it must be applied to the equal benefit of all the creditors, and the tenant has gained no priority or title under the execution, in respect to the claim of the demandant. Wildridge v. Patterson, 15 Mass. 148. Where a statute in clear terms is limited to a certain class of cases, the limitation is not to be extended by construction, especially if it would thereby subject an estate to forfeiture." 6. In Winship v. Lamberton,2 lands had been conveyed with 1 Stat. 1805, ch. 90, % 5. 2 Decided by the Supreme Court of Ohio in 1854, but by some accident not reported. The case, however, is referred to, and the point decided stated in Woodworth v. Paige, out consideration for the express purpose of defeating the collection of a certain claim to a large amount, for the payment of which the grantor was surety, the principal debtor being insolvent. Judgment was afterwards recovered against the grantor, and execution issued and levied upon the lands, and they were subsequently sold and conveyed by the sheriff. The purchasers thereupon instituted proceedings in ejectment against the grantees of the debtor and recovered possession, upon the ground that the deeds under which they held were fraudulent as to creditors. They also filed a bill in chancery to quiet their title, and a decree was rendered in conformity to the prayer of the bill, which, among other things, required the grantees in the fraudulent deeds to release to them all right, title, and interest which they had, or pretended to have, either at law or in equity, to the premises in question. Upon this state of facts it was held that the widow of the grantor was entitled to dower. The decision in this case was afterwards referred to in the following terms: "First. The defendant's title was derived from a sale on a judgment and execution against the husband alone. He was not, therefore, in privity with the wife. He derived no title under the fraudulent deed, but held in direct opposition to it. The case fell, therefore, within the principle, often held, that a release of dower is binding only as against the releasee and his privies, and that a mere stranger can not avail himself of it. Pixley v. Bennett, 11 Mass. 298; Robinson v. Bates, 3 Met. 40; Randolph v. Doss and Wife, 3 How. (Miss.) Rep. 205; Taylor v. Fowler, 18 O. R. 567. Secondly. The fraudulent deed had been declared to be void and set aside, on a bill filed by the purchasers upon the execution, under whom the defendant claimed; and we were of the opinion that the defendant could not set up this deed, thus annulled, to defeat the widow's claim to dower. Robinson v. Bates, supra. It is true that it was contended for the defendant, that inasmuch as the decree required the fraudulent grantees to release to the complainants in the bill, the defendant, who held under those complainants, was in privity with these grantees; but we thought that provision of the decree was only meant to quit the title against the deed, which by the same decree was declared to be void, and 5 Ohio State, 70. The facts, as above detailed, are taken from the printed abstract of counsel used in the argument. 1 In Woodworth v. Paige, 5 Ohio St. 70. |