Manning v. Laboree , 33 Me. 343 ( 1851 )

Howard, J.

— The marriage of the demandants was admitted ; and the prior marriage of Mrs. Manning, in whose right dower is claimed, to Miles Laboree, his seizin during coverture, his death, and the demand of dower were proved. Both issues, therefore, the first upon marriage, and the second upon the seizin of Miles Laboree during coverture, must be determined for the demandants.

The tenant presented special matters by brief statement, which are relied upon in defence.

1. That Mrs. Manning released all her right to dower in an undivided half of the premises, in which it has been demanded.

It has been provided by statute, that “ a married woman may bar her right of dower, in any estate conveyed by her husband, by joining with him as a party in the deed of conveyance, and thereby relinquishing her claim of dower, or by a subsequent deed, executed jointly with her husband,, or legally authorized guardian of her husband.” R,. S. chap. 95, sect. 9. The tenant offered an instrument, in form of a deed from Miles Laboree to himself, purporting to convey an undivided half of the premises, and containing a formal clause of relinquishment of dower, which was signed by Mrs. Manning, as the wife of the grantor. But this instrument had no seal upon it, and cannot be regarded as a deed; for in law, a deed is an instrument under seal. Co. Litt. 35, b; 2 Bl. Com. 295; Shep. Touchst. c. 4, p. 50, 56; 4 Kent’s Com. 452; Warren v. Lynch, 5 Johns. 239; Jackson v. Wood, 12 Johns. 73. The instrument not having been executed in the manner required to give it the character and effect of a deed, does not bar the right of the demandants to any portion of the premises described.

2. The case finds that there was proof of a demand of dower, more than one month before the commencement of the action, and that is a conclusive answer to the second branch 'of the brief statement.

3. Non-tenure may be pleaded in abatement to an action of dower, but not in bar. R. S. chap. 144, sect. 4. Matter in abatement can be pleaded specially, only, and cannot be presented by brief statement. The defendant is therefore precluded from urging in his defence that he is not tenant of the freehold. By the statement of the case he appears as father, to be the sole heir of Miles Laboree.

4. The mortgage to Crosby, by Miles Laboree, with which the tenant had no connection, when this action was commenced, cannot be set up in bar, as an outstanding title. The equity of redemption was in the mortgager during coverture, and at his death he was seized of the estate against all but the mortgagee, and those claiming under him; and in that his widow is dowable, as of a legal or equitable estate. When of a legal estate, as in the case under consideration, her remedy is at law ; but when she has but an equitable claim, it may be established in a court of equity. Smith v. Eustis, 7 Maine, 41; Carll v. Butman, 7 Maine, 102; Wilkins v. French, 20 Maine, 111; Campbell v. Knights, 24 Maine, 332; Snow v. Stevens, 15 Mass. 278; Walker v. Griswold, 6 Pick. 417; Lund & ux. v. Woods, 11 Metc. 566; 1 Kent’s Com. 43-45; Van Dyne v. Thayer, 19 Wend. 168; R. S. chap. 95, sect. 15.

The tenant produced an assignment of the mortgage, by Crosby to himself, since this suit was commenced. But that will not avail him in defence, in bar of the action; for no matter of defence, arising after action brought, can be thus pleaded in bar generally. Evans v. Prosser, 3 D. & E. 186; LeBret v. Papillon, 4 East, 502; Andrews v. Hooper, 13 Mass. 476; 2 Greenl. Ev. sect. 556.

5. The increased value of the premises since the death of the husband, Laboree, independent of the labor and expenditures of the tenant, is subject to the claim of the demandants. Mosher v. Mosher, 15 Maine, 371; Hobbs v. Hervey, 16 Maine, 80.

6. It is no bar to the right of the demandants, that Nancy Ciddings, the widow of Stephen Giddings, is dowable in the estate. If she should be endowed it might affect the interests of the demandants, but would not defeat their right. Both may be justly entitled to endowment. The first, in order of claim, in one third of the whole estate, and the other in one third of the remaining two thirds, with a contingent right to a further endowment, in the first third, upon an extinguishment of the first endowment. Co. Litt. 31, d; 4 Kent’s Com. 64; Geer v. Hamblin, in 1808, by C. J. Smith, N. H.; 1 Greenl. 54, note.

Judgment for demandants. The damages to be assessed by commissioners, according to the agreement.