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BONÆ FIDEI VENDITOREM, NEC COMMODORUM SPEM AUGERE, NEC
INCOMMODORUM COGNITIONEM OBSCURARE OPORTET.

Valerius Maximus, l. vii. c. 11.

SEVENTH AMERICAN EDITION,

FROM THE

ELEVENTH LONDON EDITION, CORRECTED, RE-ARRANGED,

AND GREATLY IMPROVED.

With notes and References of American Decisions on the Law of Vendors

and Purchasers, to the present time.

BY J. C. PERKINS, ESQ.

SPRINGFIELD, MASS.
PUBLISHED BY GEO. AND CHAS. MERRIAM,

1851.

L 30252

AUG 9

ENTERED ACCORDING TO THE ACT OF CONGRESS, IN THE YEAR 1851,

BY G. & C. MERRIAM, IN THE CLERK'S OFFICE OF THE DISTRICT COURT OF MASSACHUSETTS.

H. S. TAYLOR, PRINTER,

SPRINGFIELD, MASS.

OF

VENDORS AND PURCHASERS

OF

ESTA TES.

seseoses

*CHAPTER XI.

OF THE NEW LAWS OF REAL PROPERTY AS CONNECTED WITH TITLE.

SECTION I.

OF TITLE WITH REFERENCE TO DOWER.

1. Dower barred by legal term.

16. By charge or contract. 2. Dower of wife of trustee or mortgagee. 17. By declaration in the conveyance, or 3. Eviction of jointure.

by deed. 4. Equitable jointure.

18. By his will. 5. Bar of dower no bar of thirds. 21. Wife barred by devise to her of any 6. Infants.

dowable land. 7. Equitable jointure on infant.

22. But not by personal estate or of land 8. Eviction thereof.

not liable to dower. 11. Exceptions out of new dower act. 23. Covenants binding in equity. 13. New right of dower.

24. Purchaser's inquiry. 15. Husband's power over dower by dispo- 25. Curtesy.

sition.

I now propose to consider the alterations in the law of real property effected by the recent acts, with reference to their operation upon titles, and I shall retain the summaries of the old law, not merely on account of its continued operation on existing titles, but because I believe the time will shortly arrive when the practitioner will eagerly seek for a concise view of the law as it was.

1. And first as to the old law. It is clear that a woman is barred of her dower, both at law and in equity, by a legal term created previously to her right of dower attaching on the estate, of which an assignment has been obtained by a purchaser to attend the inheritance (a) (1). For although she can recover her dower at

(a) Vide infra, ch. 15; see now 8 & 9 Vict. c. 112. (1) See Weir v. Tate, 4 Iredell Eq. 264.

law, it will be with a cesset executio during the term, and equity will not remove the bar. But notwithstanding that a purchaser could obtain an assignment of an outstanding term, which would bar the vendor's wife of her dower, a fine was always required from the vendor and his wife at his expense. It was however *decided that a court of equity would compel a purchaser to accept the title without a fine (6). This doctrine will not apply to cases within the late act, because the conveyance alone will bar the wife's right to dower.

2. The wife of a trustee in fee, or of a mortgagee in fee of a forfeited mortgage, is at law entitled to a dower ; but a fine was on that account never required by a purchaser ; because, if the wise of a trustee or a mortgagee were to be so ill advised as to prosecute her legal claim, equity would, at this day, undoubtedly saddle her with all the costs (c) (1). The new act does not alter the law in this respect.

3. But as far as depends upon the old law, whether the jointure be legal or equitable, if the jointress is evicted, she may, it seems, , claim her dower out of any real estate of which she would otherwise have been dowable. For it is by the statute of uses (d), by which jointures are made bars of dower, declared, that if any .woman be lawfully evicted from jointure or any part thereof, without any fraud or covin, then she shall be endowed of as much of the residue of her husband's tenements or hereditaments, whereof she was before duwable, as the same lands and tenements so evicted shall amount to (2), and the point was expressly decided in Mansfield's case, which was adjudged in the 28th of Eliz. (e). There a jointure was conveyed to the wife before the coverture, and during the coverture the husband purchased other lands and aliened them again and died : the land which the wife had in jointure was evicted, and the wife had dower of the lands which

(6) See 10 Ves. jun. 261, 262; 1 Jac. 2 Freem. 43, 71 ; see Lloyd v. Lloyd, 4 & Walk. 665 ; Jac. 490.

Dru. & War. 354. (c) See Noel v. Jevon, Bevant v. Pope, (d) 27 H. 8, c. 10, s. 7.

(e) Harg. n. 8, Co. Litt. 33, a. (1) See 1 Cruise Dig. by Mr. Greenleaf, Tit. 6, Dower, Ch. 1, $25 in note ; 4 Kent (6th ed.) 42, 47. It is now held, that the wife of a trustee is not dowable, in equity of the trust estate. Robison v. Codman, 1 Sumner C. C. 129 ; Powell v. Monson & B. Manuf. Co. 3 Mason, 347, 364, 365 ; Cooper v. Whitney, 3 Hill, 101, 1 Cruise Dig. by Mr. Greenleaf, Tit. 6, Dower, ch. 2, 24, in note ; 4 Kent (6th ed.) 43; Thompson o. Murray, 2 Hill Ch. 213.

(2) This provision has been adopted into the statute provisions of many of the States respecting jointure and dower. See 4 Kent (6th ed.) 56; 1 Cruise Dig. by Mr. Greenleaf, Tit. 7, Jointure, Ch. 1, $48, and note ; Ambler v. Norton, 4 Hen. & Munf. 23; Rev. Stat. Mass. Ch. 60, $13.

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