A PRACTICAL TREATISE OF THE LAW OF VENDORS AND PURCHASERS OF ESTATES. BY THE RIGHT HON. SIR EDWARD SUGDEN. BONE FIDEI VENDITOREM, NEC COMMODORUM SPEM AUGERE, NEC Valerius Maximus, 1. vii. c. 11. SEVENTH AMERICAN EDITION, FROM THE ELEVENTH LONDON EDITION, CORRECTED, RE-ARRANGED, With notes and References of American Decisions on the Law of Vendors BY J. C. PERKINS, ESQ. SPRINGFIELD, MASS. PUBLISHED BY GEO. AND CHAS. MERRIAM, 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, 17 OF VENDORS AND PURCHASERS OF ESTATES. *CHAPTER XI. OF THE NEW LAWS OF REAL PROPERTY AS CONNECTED WITH TITLE. 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 (b). 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 wife 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 dowable, 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 (b) See 10 Ves. jun. 261, 262; 1 Jac. & Walk. 665; Jac. 490. (c) See Noel v. Jevon, Bevant v. Pope, 2 Freem. 43, 71; see Lloyd v. Lloyd, 4 (d) 27 II. 8, c. 10, s. 7. (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 v. 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. |