Sparrow v. Kingman , 1 How. App. Cas. 692 ( 1848 )

Decision.—Judgment reversed, with venire de novo, by the supreme court, costs to abide the event. For affirmance—Bronson, J. For reversal—Jewett, Ch. J., Ruggles, Jones, Johnson, Wright and Gray, JJ. Gardiner, J., having been engaged professionally in the cause, gave no opinion.

Note.—It was held by Weight, J., that he was content to place his vote for reversal on the distinct ground that, in an action for dower, the grantee in fee of the husband is not concluded from affirmatively controverting the seizin of the latter.

Jewett, Ch. J.—Held, that the plaintiff was not entitled to dower in any other lands than in which her husband, during marriage, was seized of an estate of inheritance; and that when she claims dower, the defendant is at liberty to show, in his defence, that her husband" was not, during the marriage, seized of such an estate.

The court, in this case, were not authorized to say that Kingman assumed, by his deed (quit-claim,) to convey a fee; the clear intent, as well as expression of his deed, was to convey only what interest or estate he then had in the premises.

(This decision overrules the principles settled by a series of cases determined by the supreme court, from Bancroft v. White, 1 Caines, 185, to Sherwood v. Vandenburgh, 2 Hill, 303.)

Bronson, J., dissenting, held that, as to one half of the Erie mills, the defendant derived his title and possession from George G. Kingman, the plaintiff’s husband; and still held under that title. So long as he thus held, he was estopped from denying the seizin of the husband, in an action brought by the widow to recover her dower. (Citing authorities.) Questionable as he thought this doctrine was at the first, it had prevailed too long in this state to be now overturned by a judicial decision. If there was any good reason for changing the rule, the change should be made by the legislature, and not by the courts. So long as those claiming under the husband have not been disturbed in the enjoyment of the property, there was no very good reason for allowing them to defeat the widow’s claim to dower, by setting up an outstanding title which might never be asserted; and the current of adjudication had not carried the estoppel beyond cases of that description.

Reported 1 Comstock, 242.