In

could not be said to be using it as a private dwelling-house only. In Johnstone v. Hall, 4 W. R. 417, 2 K. & J., 414, the lessee had covenanted not to use buildings erected on the lands demised for any of certain specified trades," or any other trade, business, or employment whatsoever," but only as private dwelling-houses. One of the houses on the premises had been used for a girls' school, and Wood, V. C., recognized the authority of Kemp. v. Sober, and only refused relief because plaintiffs claimed as reversioners. Richards v. Revett, 26 W. R. 166, a lease contained a covenant not to allow any house built on the land adjoining that demised to be used for the sale of liquor, and it was held (following Wilson v. Hart, 14 W. R. 748, L. R. 1 Ch. App. 463), that an assign with notice was in the same position as a party to the covenant, and that the court would not require substantial damages to be shown before granting an injunction to restrain a breach. In Luker v. Dennis, 16 W. R. 167, on a lease of a public house, the lessee covenanted with the plaintiff to purchase all the beer which should be consumed upon the premises, from the plaintiff. The court ruled that an assignee, as an assign with notice, was bound in equity by the covenant in the lease, but that such covenant was conditional on the fulfillment of an implied covenant to supply good beer, and that evidence to show a breach of this implied covenant, on the plaintiffs' part, was admissible. Lord Cowley v. Byas, 16 W. R. 1, arose under a statute which provided that no ground, not already used as a cemetery, should be used for burials, within the distance of 100 yards from any dwellinghouse, without the consent of the occupier. On an application for an injunction, restraining the defendant from using a piece of land, from the boundary of which the plaintiff's house was less than 100 yards distant, as a cemetery, the court of appeal held, that the act did not prevent the conversion of such land into a cemetery, provided that no actual interments were made within 100 yards of the dwelling-house.

THE NATURE OF THE ESTATE IN DOWER. "The nature of the interest which, inchoate in the wife, becomes consummate in the widow in the way of dower, deserves a distinct notice, since, in many respects, it is unlike any

Washburn on Real

other known to the law." Property, Vol. I, Chap. VII, § 6, page 301. "It is no right which her husband can bar or incumber; nor she herself, except by deed in which her husband joins, and then it is only in the way of estoppel, for her deed, even of grant, does not pass any title to the estate. She has not, in this stage of her right, even a chose in action, in respect to the estate; nor can she protect it in any way from waste or deterioration by her husband or his alienee; nor is her right, in any sense, an interest in real estate, nor property of which value can be predicated. She can not convey it, nor is it a thing to be assigned by her during the life of her husband." Ibid, Vol. 1, p. 301.

The author from which the above citation is made refers to many decisions fully sustaining the text. Yet, without verbal criticism on the terms "inchoate," and " consummate,” used by the author in the paragraph from which we have quoted, and without impugning the weight of authority justly belonging to this distinguished writer, we yet will demonstrate that the policy of the law, and, in many instances, the practice of our courts, do not sustain the author in his position. As far as Washburn extends his observations as to the inchoate interest of the wife in the real estate of her husband which may become consummate by her becoming a widow, he is right, but he does not present the full legal view appertaining to this subject.

In some respects the law looks upon the interest of the wife in her husband's estate as an existing right. In nearly every state in the American union the law prescribes the method by which the wife shall divest herself of dower, which, if not done, a purchaser fails to obtain that title which is considered full and complete, and which the wife alone can complete by her relinquishment, and which remains to be consummated by no act of hers, but by the law, if she becomes a widow. The inchoate right of dower has, however, been considered during coverture as worthy the intervention of courts of equity, and protected as an existing contingent right.

The following authority, with an able opinion from the learned court, is worthy of the most careful consideration, and if not in conflict with many decisions, certainly carries the law to a more reasonable extent. In the Su-

preme Court of the State of Iowa, where the statute, instead of giving the widow a life estate in dower, gives the fee simple to onethird of the husband's estate, it was decided by a full court that "the wife may maintain an action to preserve her right of dower while her husband is living; as where by fraud the husband is allowing his real estate to be sold under execution, in order to defeat the dower of his wife, she may have the sale set aside so far as to protect her dower." Buzick v. Buzick et al., 42 Iowa, 3 Cent. L. J. 786.

The court in this case remarked, Day, J., delivering the opinion: It would be a standing reproach to a court of equity if it were powerless to grant relief under the circumstances disclosed in this case. It is claimed by appellants that the dower interest of the wife is inchoate and contingent; that she may die before the husband, and then her estate would never vest, and that, during the life-time of her husband, she can not be heard to complain, whatever disposition may by made of the property subject to dower. If this be so, the wife holds the dower entirely at the mercy of her husband, and he may by confessing false judgments, and, conniving with the purchaser at the sheriff's sale, always defeat her dower. A right which a court can not protect, ceases to possess the essential qualities of a right. Although the wife's dower, during the life-time of her husband, is inchoate and uncertain, yet it possesses the elements of property. The relinquishment of dower constitutes a valuable consideration, sufficient to support a conveyance of property to the wife. Bullard v. Briggs, 7 Pick 533. Its probable present value may be computed by the annuity tables, 2 Scribner on Dower, page 6, note 5. In Bullard v. Briggs, supra, Parker, C. J., announcing the opinion of the court, used this language respecting the dower interest: "Though she had no actual estate in the dower during the life of her husband, yet she had an interest and a right, of which she could not be divested, but by her consent or crime, or her dying before her husband. It was a valuable interest, which is frequently the subject of contract and bargain; it was an interest which the law recognizes as the subject of conveyance by fine in England, and by deed with us. It is more or less valuable according to the re

lative ages, constitutions, and habits of the husband and wife. It is more than a possibility, and may well be denominated a contingent interest.' The case of Petty v. Petty, 4 B. Monroe, 215, is fully considered and well reasoned, and is a direct authority in support of the right of this plaintiff to maintain an action for the protection of her dower. This was an action by the wife to set aside a conveyance made by her husband, a few days. before his marriage, of all his real estate, to his children of a former marriage. The plaintiff alleged that the conveyance was in fraud of her right of dower. In the course of the opinion the court say: 'But the question arises whether she has such an interest, in the life-time of her husband, as to maintain her bill. She may not survive her husband, and, consequently, may never be entitled to a perfect right to dower. Yet she

might survive her husband, and in that event would be entitled to a vested interest, but for the deed. Though she has not a vested interest, yet she has, or would have had, immediately on the marriage, but for the deed, a potential contingent right, of which she could not be deprived, and that right is valuable to her as affording to her security for future maintainance, in the event of her surviving her husband, though it can not be enjoyed while he lives. Though a contingent, it is a valuable interest, and may be sold, conveyed or released for a valuable consideration, and the law treating it as valuable, and as an existing incumbrance on land, has provided a solemn mode for its release, guarding the wife from imposition or influence from the husband, in the act of surrender. It has been deemed, in chancery, a sufficient existing incumbrance, if not surrendered, to authorize the recission of an existing contract for land. May not a court of chancery, therefore, treat it as such a valuable interest, though contingent, as to free it from the embarrassment which the fraudulent acts of the husband have thrown around it, prior to, and in anticipation of marriage? We think it can.'' This is the opin

ion of the court in the case of Petty v. Petty, cited and approved in the case of Buzick v. Buzick. "It is admitted that dower is a mere legal right, and that a court of equity, in assuming a concurrent jurisdiction with the courts of law upon the subject, professedly acts upon the legal estate; for dower does

appellant alone, without noticing the subsequent endorser. 2 Parsons on Bills and Notes, 19.

The principal contest is, however, whether the case is made out in respect of presentment and notice, the note having been executed and endorsed, and it being stipulated that, by the law of that state, proof of presentment and notice is required to fix the liability of the endorser. We understand the law in that state to be as it is recognized in many of the other states and laid down in text-books, that the consequences of a neglect to give notice of non-payment of a bill or note may be waived by the person entitled to take advantage of them, and that such waiver may be presumed from a promise made after maturity to pay the note with full knowledge of the facts, or under circumstances from which it is to be inferred the party ought to have had full knowledge of the facts. Chitty on Bills (8th Am. Ed.), 523– 534; 1 Parsons on Notes and Bills, 595; Story on Prom. Notes, § 276; Dorsey v. Watson, 14 Mo. 62; Mentz v. Osborn, 5 Id. 546.

It is proved that appellant, on several occasions, after the maturity of the note, promised to pay it; but, he says, he was not aware at the time he made these promises that he had any legal defense to the note. This may be true, and have resulted simply from his ignorance of the law, or it may have been true because he was ignorant of the facts. If it was because of his ignorance of the law, it can not avail him, and he must be charged with full knowledge. Chitty on Bills (8th Am. Ed.), 735a; Story on Prom. Notes, § 362; Parsons on Notes and Bills, 607-608; Tibbetts v. Dowd, 23 Wend. 378.

It is said in Parsons on Notes and Bills, p. 602: "It has been sometimes said that a waiver can not be inferred, But, if this is meant that direct knowledge must be proved, we think it incorrect. Indeed, there does not appear to be any good reason why knowledge may not be proved in the same manner, and by the same evidence in this matter as in any other. A jury will be justified in inferring knowledge from a variety of circumstances, such as the situation aud connection of the parties, the words and acts of the endorser, the time which has elapsed between the maturity of the note or bill and the promise, and the like." See, also, Story on Prom. Notes, § 359. This seems to have been recognized by the court in Mentz v. Osborn, supra.

Here, in addition to the deliberate and unqualified promise of appellant to pay the note, made after its maturity, there was this additional evidence:

The note matured Nov. 1st, 1873, and on the 22d of December, 1873, the following letter was written by appellant and sent to the president of appellee:

"ST. LOUIS, Dec. 22d, 1873.

Louis B. Parsons, Esq., Pres't. :

DEAR SIR:-In case you prosecute Charles L. Rice, on his note for $10,000, we agree to reimburse you all attorney's fees and other expenses attending such prosecution; this agreement not to interfere or prevent your bank from bringing

suit against us, or either of us, should you desire to do so. Very respectfully,

ST. LOUIS MARBLE CO. By James Givens, Vice-Pres't. JAMES GIVENS.

I. V. W. DUTCHER.” Pursuant to this request suit was instituted. against the maker of the note, on the 24th day of December, 1873, in the Superior Court of Cook County, Illinois, in which county the maker resided, and judgment therein was rendered in favor of the plaintiff, for the amount due on the note, on the first Monday of March, 1874. And, thereupon, on the 10th day of April, 1874, appellant executed and caused to be delivered to appellee's president, the following agreement in writing: "Should it be necessary to institute proceedings to put C. L. Rice into bankruptcy, I hereby agree and bind myself to pay any and all expenses of any kind incurred by reason of such proceedings. ST. LOUIS MARBLE CO. By James Givens, Vice-Pres't. April 10th, 1874. JAMES GIVENS." In conformity with this, appellee instituted, on on the 20th day of April, 1874, in the United States Court for the Northern District of Illinois, proper proceedings to put the maker of the note into bankruptcy, which resulted, in due time, in a decree to that effect. Execution was issued on the judgment and returned "No property found;" and nothing was realized from the proceedings in bankruptcy. Other evidence clearly shows the insolvency of the maker of the note, at the time of its maturity.

We think the evidence is abundantly sufficient to show that appellant had full notice of all the facts affecting his rights when he made the promise of payment. He knew the note was due and was unpaid. He knew what notice had been given himself of its presentment and non-payment, and he evidently also knew that the solvency of the maker was at least very doubtful.

We think the judgment is substantially right and that it should be affirmed.

1. A MARRIAGE PROCURED BY FRAUD IS VOIDABLE only at the election of the party defrauded.

2. THE PARTY WHO COMMITS THE FRAUD IS BOUND, and remains bound, until the party deceived has made his or her election, and will thereafter be bound or not, according to the election made. Whether an election, after discovering the fraud, would have absolved the parties from the obligations of the marriage, without the judgment of a court annulling the marriage, is not decided in this case.

3. THE RIGHT TO AVOID A MARRIAGE is personal, and if not taken advantage of by a party in his lifetime, it can not be exercised after his death by his executors or devisees.

4. A WIDOW HAVING NO CHILDREN BY HER LAST HUSBAND 18 entitled to one-third only of his personal estate, if he left children by a former marriage. Subsec. 4, sec. 11, ch. 31, General Statutes.

APPEAL from Louisville Chancery Court: I. & J. Caldwell and Winston, for appellants. "Marriage is considered by the law in no other light than as a civil contract." Tyler on Infancy and Coverture, sec, 618; see, also, Reeve's Domestic Relations, p. 195. The marriage of a man and a woman can not sanctify the fraud of the latter, as in this case, in procuring or inducing the marriage. "A marriage procured by force or fraud is also void ab initio, and may be treated as null by every court in which its validity may be incidentally drawn in question; the basis of the marriage is consent, and the ingredient fraud or duress is as fatal in this as in any other contract, for the free assent of the mind is wanting." 2 Kent's Com., p. 42; see, also, Reeve on Dom. Rel. p. 206; Schouler's Domestic Relations, pp. 25, 35; Tyler on In. and Cov. p. 863; Mather v. Ney, 1 Maule & Selwyn, 265; Frankland v. Nicholson (otherwise Franklin), 3 Maule & Selwyn, 260. The provision of the General Statutes (sec. 5, art 1, ch. 52), that courts of equity jurisdiction may declare void a marriage procured by force or fraud, is in perfect accord with the authorities cited above. M. Mundy, for appellee.

COFER, J., delivered the opinion of the court: The appellee, under the name of Mary Albright, was married to Phillip Tomppert, Sr., April 2, 1872. Tomppert died October 29, 1873, leaving no issue of the marriage, having first made and published his last will and testament, devising all his estate to four children of a former marriage. This suit was brought by the appellee for the allotment of dower and distribution of the personal estate.

The executor and devisees answered, and alleged that she married the testator under the name of Mary Albright, claiming to be the widow of

Albright, when her name was not Albright, and she was not the widow of Albright, and had never been married to him, and that her marriage with Tomppert was procured by fraud and was void, and on that and the additional ground that she, without fault on his part, abandoned the bed and board of the testator for several months before his death, resisted her claim to dower and distribution. The chancellor adjudged in her favor, and the executor and devisees prosecute this appeal. We assume, for the purposes of the case, that the facts alleged have been established by the evidence.

Appellant's counsel cite several authorities which seem to sustain the broad proposition, that a marriage procured by fraud is void ab initio, and may be treated whenever called into question. Schouler's Domestic Relations, 35: Reeve's Domestic Relations, p. 206; 2 Kent, 767; 3 Maule & Selwyn, 260 and 537. Chancellor Kent says: "A marriage procured by force or fraud is also void ab initio, and may be treated as null by every court in which its validity may be incidentally drawn in question." Mr Schouler says: "All mar

riages procured by force or fraud, or involving palpable error, are void; for here the element of mutual consent is wanting, so essential to every contract." Mr. Reeve says, speaking of marriages procured by fraud: "The true point of light in which this ought to be viewed, I apprehend, is, that the marriage was void ab initio." And Mr. Bishop, in his work on Marriage and Divorce (sec. 115) recognizes the same doctrine.

This is no mean array of authorities, yet we feel compelled, at whatever risk, to dissent from their views.

Mr. Bishop (section 46), speaking of void and voidable marriages, says: "A marriage is said to be void when it is good for no legal purpose, and its validity may be relied upon in any proceeding, in any court, between any parties, either in the lifetime or after the death of the supposed husband and wife, whether the question arises directly or collaterally." And in section 122 the same author says: "There are various principles applicable alike to fraud, error and duress. We may presume that the guilty party would not be permitted so far to take advantage of his own wrong as to maintain a suit for nullity solely on that ground. The party imposed upon may, if he choose, waive the tort, and thereby render the marriage good. Thus, a voluntary cohabitation after knowledge of the fraud or error, or after the cause of fear is removed, will cure the defect," etc. And, again, in section 123, the same author says of marriages procured by fraud, error or duress: "They are good at the election of the party injured, who, on being disenthralled from the influence of the fraud, error or duress, may then give a voluntary consent, and the other party can not set up his wrong to object that the consent was not mutual.”

Mr. Tyler, in his work on Infancy and Coverture, uses this language on this point: "There is a great difference between a void and a voidable marriage, which it is important to notice. A void marriage is at all times a nullity, and binds no one, and is not valid for any legal purpose whatever; it leaves the parties to it in just the same situation, to all intents and purposes, as though there had been no pretended marriage at all. In such cases, if the parties cohabit, they are adulterers and fornicators, and their offspring, if any, are bastards. But a voidable marriage is valid for all civil purposes, and binding upon the parties so long as it is acted upon and recognized by them, and until its nullity is declared by a competent tribunal; and if the marriage has not been dissolved by sentence or decree during the joint lives of the parties, it will be too late to apply for its avoidance, and, consequently, the survivor will be entitled to curtesy, dower, and the other rights of a surviving husband or wife." The same distinction is stated in much the same language by Mr. Schouler (p. 24) and was recognized by this court in Bassett v. Bassett 9 Bush, 696.

No other contract recognized by law is held to be void by fraud. It is true that text-writers and judges sometimes use the term void in speaking of such contracts, but it is an inaccurate use of lan