French v. Lord

• Decision Date: 23 June 1879
• Citation: 69 Me. 537
• Court: Maine Supreme Court
• Parties: ANN S. FRENCH v. CHARLES V. LORD & another.

69 Me. 537

ANN S. FRENCH v. CHARLES V. LORD & another.

Supreme Judicial Court of Maine.

June 23, 1879

ON REPORT for the legal adjudication of the rights of the parties by the law court which is to decide of what portion if any, the demandant is dowable, and upon what principles the dower is to be assigned and damages to be assessed, the damages for detention to be assessed by the commissioners who may be appointed to assign the dower in the land.

The demandant claims to be endowed of 31-35 parts of 1-3 of the wharf and lot at the foot of Exchange street, in Bangor known as City Point Wharf, at the junction of the Kenduskeag stream with Penobscot river.

The general issue was pleaded with specifications setting forth a release of dower, and that the E. & N. A. Railway Company had located its track over the lot, and thus appropriating a large part of the premises to its use.

It was admitted that the premises were formerly the property of Zadoc French, at the time of his death; that he died intestate in 1830; and that the premises descended to his three sons, Ebenezer, Frederic F. and George S. French, the demandant being the widow of George, who died February 15 1849.

Demand of dower August 9, 1871, admitted. Writ dated September 12, 1871.

On May 24, 1836, Frederic F. French conveyed his one-third to Ebenezer, his wife not signing the deed.

On September 28, 1836, Geo. S., by deed of warranty recorded October 8, 1836, conveyed his one-third to Ebenezer, and his wife (demandant) joined in the deed, releasing her right of dower; and on December 26, 1836, Ebenezer released or reconveyed to the demandant, by deed of that date, recorded December 27, 1836, her right of dower which she had released to him as above.

The defendants introduced the following levies made on executions against George S. in actions in which there were attachments made prior to the deed from George S. to Ebenezer, as above stated, all of which levies were duly recorded:

I. On September 20, 1836, E. H. Sleeper attached 1-5 of George S. French's 1-3 and perfected the same by levy February 3, 1842.

II. On September 27, 1836, James Crosby attached 1-7 of George S. French's 1-3, and perfected the same by levy on July 3, 1838. Sleeper conveyed his levy to Crosby, thus giving him 12-35 of George's 1-3, or 4-35 of the whole lot; and by subsequent proceedings in partition this was set off to him in severalty.

III. On December 22, 1835, Samuel Coney attached 1-10 of 1-3, or 1-30 of whole, and levied July 7, 1840.

IV. On September 2, 1836, Moody and LeBicton attached 3-7 of 1-3, or 1-7 of whole, and levied July 11, 1840.

V. On September 17, 1836, Rufus Davenport attached 1-8 of 1-3, or 1-24 of whole, and levied March 12, 1841.

These levies were all subsequently conveyed by quitclaim deeds by the creditors to A. M, Roberts, prior to 1850.

The defendants also introduced the following attachments and levies made on writs and executions against Ebenezer:

VI. On August 20, 1836, Charles Mustard attached, and on February 12, 1838 levied on 1-30 of whole.

VII. On October 26, 1836, J. Faulkner attached, and on July 7, 1838, levied on 1-43 of whole.

VIII. On October 26, 1836, Isaac Chase attached, and on July 7, 1838, levied on 1-24 of whole.

IX. On November 1, 1836, Fiske & Bridge attached, and on August 2, 1841, levied on 19-40 of whole.

X. On November 28, 1836, A. M. Roberts attached, and on June 30, 1838, levied on 1-9 of whole.

XI. On December 9, 1836, Towle & Parsons attached, and on June 30, 1838, levied on 1-24 of whole.

XII. On December 21, 1836, R. C. Johnson attached, and on October 2, 1839, levied on 1-7 of whole.

XIII. On December 26, 1836, D. B. Hinckley attached, and on July 23, 1840, levied on 1-40 of whole.

Levies VI to XI, inclusive, were afterwards, but prior to 1850, conveyed by quitclaim deeds to A. M. Roberts, who, on October 29, 1852, conveyed the premises to Gideon Mayo, from whom by several intervening conveyances and descents the same title has come to, and is held by, these defendants. But the defendants have never received any conveyance of the interest of Johnson and Hinckley, the last two levying creditors.

On the first of December, 1849, while Roberts held the title, he took a written lease under seal from this demandant, agreeing therein to pay her seventy-five dollars per year for her dower, for the term of five years; and in accordance with the terms of this lease, this rent was paid by said Roberts, the last payment endorsed on said lease being September 1, 1854; this rent was afterwards increased by Samuel Veazie, defendants' intestate, to one hundred dollars per year, the last payment being in January, 1871. There was no agreement that by receiving these sums, demandant should be barred from claiming dower or from increasing her demands, but each was at liberty to put an end to the arrangement; and at the time named the plaintiff did so.

After the death of George S. the railway company located its track over the premises and built its railroad across it, the railroad bridge at the mouth of Kenduskeag stream being built upon or to it. A strip of land across the center of the lot ninety-nine feet in width was taken for the road, and is now used by the company according to the terms of its charter.

In the writs in favor of Charles Mustard and Amos M. Roberts against said Ebenezer there was in each, in addition to the specific count, a count for money had and received, without any specification of the claim.

In Isaac Chase's writ against Ebenezer French were two specific counts on a bill of exchange. In the several other writs there were no general counts, but specific counts in which the nature of the damage was set out.

The deed of A. M. Roberts to Gideon Mayo contained the following clause: " To have and to hold the aforegranted premises, with all the privileges and appurtenances thereof, unto the said Gideon Mayo and his heirs and assigns to their use and behoof forever, and I do hereby, for me and my heirs, executors and administrators, covenant and engage to and with the said Mayo and his heirs and assigns that I am lawfully seized in fee the aforegranted premises that they are free from all incumbrances except as below; that I have good right to sell and convey the same to the said Gideon, and that I and my heirs, executors and administrators shall and will warrant and defend the same premise to the said Gideon Mayo, his heirs and assigns forever, save any and all dower, real or contingent."

The deed from Courtland Palmer to Samuel Veazie contained the following clause:

" Also all the premises in full which are described in a deed from Amos M. Roberts to Gideon Mayo, which is particularly referred to for description of the premises hereby conveyed. The said premises are conveyed subject to all dower and rights of dower of Mrs. French, which the party of the second part assumes."

J. F. Godfrey, for the demandant.

A. W. Paine, for the defendants.

VIRGIN J.

This demandant in her action against Crosby (61 Me. 502,) having recovered her dower in the land held under levies numbered one and two in this record, being one-seventh and one-fifth or twelve-thirty-fifths of her husband's former interest, now seeks to recover it in the remaining twenty-three-thirty-fifths.

A portion of the land in which dower is here claimed was taken, after the death of her husband, by a railroad company for railroad purposes, and has been so occupied ever since.

A widow is not dowable of lands taken for public use. And the reason is obvious. In all such cases a division of the estate thus taken would destroy it for the use to which it has been appropriated. Private interests must give way to the public convenience and necessity,--rights in dower as well as any other interest in real estate. It has been well held that, when the estate is taken before the decease of the husband, the value of the widow's inchoate right of dower is deemed too uncertain to admit of compensation; that the husband must be regarded as the owner of the entire estate; and that as such he is entitled to full compensation for it. But immediately upon the husband's decease, her right of dower being then consummated, no reason is perceived why she, like any other party, should not be entitled to compensation for her interest. 1 Scrib. Dow. 554. 1 Wash. R. Prop., c. 7, § 37, and cases cited. Having a valuable interest, she had her remedy; but she cannot obtain it in this action against these defendants.

Is she entitled to dower in the whole or any portion of the residue?

The attachments numbered three, four and five were made prior to the conveyance by the demandant's husband to Eben, of September 28, 1836. The executions, issued on the judgments recovered in the several actions on which these attachments were made, having been seasonably and regularly extended upon the land attached, the levies by relation operated as statute conveyances of the dates of the respective attachments. Nason v. Grant, 21 Me. 160. And by the express provisions of the statute a married woman shall not be deprived of dower by a levy on her husband's real estate. R. S. 1841, c. 94, § 48. French v. Crosby, 61 Me. 502.

It is true that the demandant joined in her husband's deed of September 28, 1836, and thereby barred her right of dower " in the estate conveyed by her husband." R. S 1841, c. 94, § 9. But it is also true that " the estate conveyed by her husband" by that deed was not in fact his entire one-third interest, though such was the description of the premises in the deed; for by the first two levies 12-35, and by the next three 183-280, making 279-280 of his one-third, were conveyed to the levying creditors; and there remained only...