Barnet v. Barnet

• Decision Date: 02 November 1826
• Citation: 16 Am.Dec. 516,15 Serg. & Rawle 72
• Parties: BARNET v. BARNET.
• Court: Pennsylvania Supreme Court

15 Serg. & Rawle 72

16 Am.Dec. 516

BARNET v. BARNET.

Supreme Court of Pennsylvania.

November 2, 1826

IN ERROR.

On the plea of release of dower, in an action of dower, evidence is not admissible on the part of the defendant, of a recovery by the plaintiff against the husband's executors, in covenant, on an agreement between the husband and wife previously to the marriage, by which he agreed, in case they lived together ten years, to pay the wife $400.

The wife's dower is not barred by a deed executed and acknowledged by her, with her husband, if it do not appear in the certificate of the acknowledgment, that the contents of the deed were made known to the wife by the justice, or that she did, in fact, know them.

The act of assembly curing defects in the acknowledgments of femes covert is constitutional: but it does not apply, where judgment was rendered previously to its passage.^[a]

Parol evidence is not admissible to supply defects in the justice's certificate; but it is, to prove forgery or fraud.^[b]

In dower, when the husband did not die seised, evidence of the annual value is not admissible.^[c]

ERROR to the Court of Common Pleas of Perry county.

Alexander, for the plaintiff in error.

Carothers, contra.

OPINION

TILGHMAN C. J.

This was an action of dower, brought by Margaret Barnet, widow of Thomas Barnet, against Frederick Barnet, the plaintiff in error. The defendant pleaded a release of dower by the plaintiff, who replied, that she had not given a release, and on this issue was joined.

The first error assigned is, in the rejection of a record offered in evidence by the defendant, in an action of covenant brought by the demandant against the executors of her late husband, on certain articles of agreement executed previously to their marriage, by which the husband covenanted, that in case he and his intended wife should live together ten years, he would pay her $400. In this action, damages were recovered for breach of Thomas Barnet's covenant, in not paying the $400. This evidence was rightly rejected for several reasons: it had no relation to the issue joined, viz: release of dower, or no release by the demandant; it did not purport to be a release, nor had it any resemblance to one; nor did it contain any agreement on the part of the demandant to accept the $400 in satisfaction of dower. If the husband had died within the ten years, and his wife had survived him, she would have taken no money by this agreement, and thus, according to the construction contended for by the defendant, she would have lost both dower and money. There was no error, therefore, in rejecting this evidence.

The second error is, the opinion given by the court, that the acknowledgment of a deed from Thomas Barnet, deceased, and his wife (the demandant), for the conveyance of the land in which dower is now claimed, was defective, so far as concerned the wife, and not sufficient to bar her of her dower. It does not appear by the certificate of this acknowledgment, that the contents of the deed were made known to the wife, by the justice who took her acknowledgment, or that she did, in fact, know them. It has been expressly decided by this court, that this is an incurable defect; and therefore the opinion of the court below was right.

Since the judgment in this case in the court of common pleas, an act of assembly has been passed for curing defects in the acknowledgment of deeds by married women....