Gleason v. Emerson , 51 N.H. 405 ( 1871 )

Smith, J.

As the parties have agreed that the decision shall turn upon a single point, we are not called upon to consider whether any other positions might have been successfully taken by either side. See Pendergast v. Meserve, 22 N. H. 109. The practical construction of the law in this State for many years is decisive of the only question presented in this case. In determining the amount of alimony, the courts have acted on the supposition that a divorce, ipso facto, bars dower; and it has not been the custom, even where large alimony is given to the wife, to insert in the decree any provision that the wife shall not be entitled to dower. We are not aware that a divorced wife has ever claimed dower ; but, on the other hand, purchasers of the real estate of divorced husbands have usually paid the full price of unincumbered property, regarding themselves as perfectly secure from any claim for dower. Under this state of facts, it would be useless to inquire into the intrinsic correctness of the opinion so universally entertained and acted upon. To adopt a different doctrine at this time “ would unavoidably unsettle the titles of great numbers of persons.” If the prevalent doctrine is not well founded in legal reason (upon which we give no opinion), a strong case is presented for the application of the maxim, “ communis error facit jus.” See Burge v. Smith, 27 N. H. 332.

The defendants rely on Barker & Wife v. Cobb, 36 N. H. 344;—that was a writ of entry for land claimed in the right of the wife. After the commencement of the suit, the wife procured a divorce in the State of Maine, and moved that the husband’s name be stricken from the declaration, and that the suit proceed in, her name alone. This motion was denied, Eastman, J., saying, —"A divorce does not, ipso facto, cut off the rights of the husband in the real estate of the wife. It requires the decree of the court granting the divorce to disincumber the estate from the husband’s rights.” This decision is not directly in point. The husband’s estate by the marital right differs from inchoate dower in being a complete vested estate in distinction from a mere possibility. / See 1 Bishop on The Law of Married Women, sec. 537. The doctrine, that a divorce does not divest a vested estate, is not necessarily inconsistent with the theory that it does have the effect to prevent a mere contingency from ripening into a right. Besides, the divorce statute in force when Barker v. Cobb was decided, while it was silent on the subject of dower, provided that the court might “ restore to the wife all or any part of her lands, tenements, and hereditaments ” (Rev. Stats., ch. 148, sec. 13), thereby affording ground for the implication that, in the absence of a special decree of restoration, the husband’s vested interest would not be divested by the divorce; and special decrees, disincumbering the wife’s estate from the husband’s claims, have not been uncommon in this State, both before and since the decision in Barker v. Cobb. If, however, the decision in Barker v. Cobb should be regarded as inconsistent with the prevalent opinion respecting dower, we should, for the reasons already indicated, decline to disturb the practical construction of the law on the latter topic. In the view we have taken, there is no occasion to comment on the decisions in other jurisdictions, some of which turn on the construction of statutes.

Under the agreement of the parties, there must be

Judgment for the plaintiff.