Savage v. Crill ( 1879 )

Smith, J.:

The judgment of absolute divorce in favor of the wife, and the provision therein for her maintenance, did not deprive her of her dower right in the lands of. her husband. (Wait v. Wait, 4 Comst., 95.) The case turns, therefore, on the validity of the release executed by her to Crill after the divorce, the fee then being in him. That it was valid, seems clear. Although dower may not be conveyed before admeasurement, it may be released to the holder of the title. We think there can be no doubt but that if the title had been held by a person other than the appellant’s husband, a release to such person would have been valid, even if executed by her alone, before she obtained a divorce. The Court of Appeals held in the case of Albany Insurance Company v. Bay (4 Comst., 9), that in this State a married woman may convey her .lands, or any interest she may have in lands, by deed duly acknowledged, although her husband do not join therein. The rule would seem to be the same in respect to a release of dower. See Merchants’ Bank v. Thomson (55 N. Y., 7, opinion of Folger, J., top of p. 12). Why, then, was not the release valid and effectual, which she executed to Crill, after the divorce, he being then the holder of the title ? It is said by the appellant’s counsel that as she could not have released him while they were husband and wife, the disability which thus attached to her dower right during marriage continued after the marriage was-dissolved. We think not. The reason of the rule that a married woman cannot convey to her husband is, that the law regards, husband and wjfo -as one person ; and furthermore, it considers th& wife as under the husband’s control. But those reasons cease to exist when the marriage is absolutely dissolved. The true view of the matter,we think, is that by the dissolution of the marriage, by reason -of the husband’s adultery, the disability above referred to is done away, although the dower right remains, and that, thereafter, the wife may convey to the man from whom she was. divorced, as effectually as if he had never been her husband.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Talcott, P. J., and Hardin, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.