Rhoades v. Davis
| Decision Date | 03 October 1883 |
| Citation | 51 Mich. 306,16 N.W. 659 |
| Court | Michigan Supreme Court |
| Parties | RHOADES v. DAVIS. |
In 1870 plaintiff, being about to separate from her husband, who was the owner in fee of the land in controversy, gave her husband a quitclaim deed of the premises, and he paid her $250 in cash and executed a mortgage on the land to secure payment of $650 more. Afterwards written articles of separation were entered into, in which she agreed that the $900 should "be in full satisfaction for her maintenance, and all alimony whatever," and at the same time they added to the consideration clause of the deed, "the consideration of this deed being in lieu of the right of dower," and the deed was recorded. Subsequently the land was sold subject to the mortgage, and the purchaser paid the $650 to the wife. On the death of the husband she brought suit for her dower in the land. Held, that her conveyance to the husband was valid as a release of dower, and that she coud not recover.
Error to Kent.
Hughes O'Brien & Smiley, for plaintiff.
Morse, Wilson & Trowbridge, for defendant and appellant.
Ejectment for dower. Findings by the court, and judgment for the plaintiff. In 1865 the plaintiff intermarried with John Roades, and they lived together from that date until the twelfth of September, 1870, at which time they separated, and never afterwards cohabited. At this time the husband was owner in fee of the premises in the declaration, but owned no other. On the day of the separation the plaintiff gave the husband a quitclaim deed of the premises, and he paid her $250, and gave her a mortgage on the same premises for $650 more.
The deed was placed on record a few days later. About two and a half months afterwards, and on the twenty-fifth of November they entered into written articles of separation, and she therein agreed that the $900 which had been in part paid and in part secured by the mortgage should be in full satisfaction for her support and maintenance, and all alimony whatever. At the same time, and as part of the same transaction, they added to the consideration clause of the deed this language: "The consideration of this deed being in lieu for the right of dower of said party of the first part in and to said described premises;" and the deed as thus changed was again recorded in December 1870.
The $900 mentioned in the articles, and of which $650 was secured by mortgage, formed the consideration of the quitclaim. January 23, 1872, the husband conveyed to the defendant subject to the mortgage, the plaintiff not joining. The defendant assumed what remained of the mortgage debt as part of the purchase price, and paid it to the plaintiff's assignee. July 3, 1878, the husband died, and the plaintiff commenced this suit April 16, 1881. At the time the deed and mortgage were given, in September, 1870, the plaintiff had no right except her expectancy of dower as the wife of John Rhoades. The construction of the facts is not difficult. The husband held the premises subject to plaintiff's incipient dower right. For $900 which she has received in full, she agreed to waive her right and place the title in such shape that the property should be grantable by the husband as though she were not living. On this basis the husband paid and secured the consideration, and on this basis she deeded as before stated. The title being in this condition, the defendant purchased of the husband and accepted his sole deed, and assumed and paid what remained of the mortgage given on the premises to secure a portion of the very consideration for which she agreed to resign the right that she now endeavors to enforce.
The question is whether, on these facts, she may now repudiate her part of the arrangement, and not only hold the benefit of the consideration she obtained, but may also recover the very thing for which she solemnly accepted that consideration as the price. If she can, it must be because there are technical difficulties too stubborn to yield to the claims of natural justice. The moral dictates of the law are all against her. Her position is--First, that before the legislation of 1855 it was not possible for a married woman, by giving a deed to her husband, to relinquish to him her incipient right of dower in his lands; second, that this right not being, as is well settled, a separate estate, its disposal has not been affected by that legislation. Consequently the deeding by the plaintiff made no change in her legal claims and interests. The view which the case offers will excuse examination of the first point. Whether the method of barring dower which the statute approves by joining in the husband's deed or with the guardian, or by her sole deed to a third person, who has obtained the husband's title, should be deemed exclusive where the case does not depend on an act of relinquishment directly to the husband, may be left for future inquiry.
The second proposition demands some attention; it seems to have the support of a dictum in Ring v. Burt, 17 Mich. 464. It was there said that a married woman during the coverture could not affect this right except by joining in a deed or mortgage with her husband. This was not the point in judgment, and the remark was only a casual observation in the course of argument; however entitled to respect as the expression of an eminent judge, the court cannot regard it as an adjudication.
The first consideration is, what, in the light of reason, is this "possibility of dower accruing to the wife after marriage, but before the death of the husband?" The authorities universally deny that it constitutes an estate; at the same time they admit, with equal unanimity, that it is a right concerning land, and one which possesses value.
In Greiner v. Klein a majority of this court were of opinion that it was of such worth that a...
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