— The tenant derives his title to the premises by virtue of a conveyance in mortgage made by the husband of the demandant to Ebenczer French on January 19, 1829. The demandant did not join with her husband in that conveyance, but by a separate deed written upon the back of it, and executed by her alone on February 4, 1829, she relinquished to the mortgagee her right of dower. She recites in that deed, that this is “ done by the consent of my said husband, testified by his being a party hereto,” but the deed contains no other language suited to indicate, that her husband was to be a party to it. As the consideration is stated to be “ the within named sum of twelve thousand dollars paid to him, the words first named, may have reference to the husband’s being a party to the within deed.
Whether the deed executed by the demandant operated as *408a valid relinquishment of her right of dower, is the question first arising for decision.
It has become part of the history of this branch of the law, that Parsons, C. J. in the case of Fowler v. Shearer, represented the authority of a wife to bar herself of dower by deed, to have been derived from an ordinance of the province of Massachusetts Bay and from an act of the provincial legislature, and that he states it to have been •“ sometimes done by her separate deed subsequent to her husband’s sale, in which the sale is recited as a consideration, on Avhich she relinquishes her claim to doAver.” He refers to it also as a usage and as New England common laAV. What the usage was, as it respects the mode of execution by the wife, there was no means of ascertaining except from the remarks of the chief justice, and those have not been regarded as free from ambiguity.
When the same question came under consideration in the case of Rowe v. Hamilton, 3 Greenl. 63, the ordinance and usage were not regarded as of practical importance as it respected deeds executed after the passage of the provincial act of 1697, for the court considered, that all previous statutes and provisions Avere thereby superseded. The act last named could have no effect upon such conveyances made after the passage of the Act of March 10, 1784, directing the mode of transferring real estate: and this act. was superseded in this State, by the Acts of Feburary 19, 1821, chap. 40, and of February 20, 1821, chap. 36.
The former Ordinance, Acts, usages, and decisions, can have no further effect than to aid one in arriving at a correct construction of the acts last named.
The construction of the Ordinance, Acts and usages of Massachusetts was considered in the case of Rowe v. Hamilton, and of Powell v. Monson and Brimfield Manf. Co. 3 Mason, 347, and of Shaw v. Russ, 14 Maine, 432. In the latter case the Court concluded, that a release executed by the Avife alone on January 9, 1817, for a consideration paid to the hus*409band, was unauthorized by the statute then in force, and that it was void.
It having been stated in the case of Fowler v. Shearer that the sale by the husband should be recited as the consideration for the separate deed of the wife, it has been considered in some of the subsequent cases to have been an essential ingredient to a valid relinquishment of dower by the wife.
Whatever foundation there may have been in the usage referred to for such a position, there will be found none in the language of the Act of 1784, or in any of the preceding or subsequent enactments. Whether an intention ever did exist or could have existed and have been so frequently carried into effect in the execution of such deeds as to become a usage so as to make the validity of a deed depend upon such a recital may well be doubted.
The provisions of the Act of February 20, 1821, in force, when the deed of the demandant was executed, declared that a widow should not thereby be deprived of her dower “ who did not join with her husband in such sale or mortgage, or otherwise lawfully bar or exclude herself from such dower or right.” The latter clause, as stated in the case of Powell v. Monson and Brimfield Man. Co., has never been construed to let in any usage or practice not consonant to the principles of the common law. It doubtless had reference to modes recognized by that law as effectual for such a purpose, such as jointures, marriage settlements, and accepted devises. If this be the true construction of that clause the only mode provided by that statute for a relinquishment of dower by the conveyance of a wife, was by her joining with her husband. By the provisions of the other statute, chap. 40, sect. 6, a widow is entitled to dower, except when by her own consent she has been provided for by a jointure “ or where she may have relinquished her right of dower by deed, under her hand and seal.”
It was not the purpose of that statute to prescribe the kind of deed, which should have that effect, but to declare, that when she executed a deed under her hand and seal, that *410would have the effect to relinquish her dower, it should operate as a bar. A deed executed by her with her husband is a deed under her hand and seal. One executed by her alone, the law does not recognize as her deed. The words of the statute, by deed under her hand and seal, are fully satisfied by a reference to the law, to ascertain, what would be her deed ; and they do not call for a construction, that would make any instrument signed and sealed by her a valid deed. If a construction should be given to these words, which would confer powers not known to the law, that clause of the statute would be in conflict with the provisions of the statute, chap. 36, § 2; and by the provisions of one statute she could only bar herself-of dower by joining with her husband, and by another she could do it alone without the aid or consent, and even against the will of her husband.
It is worthy of notice, that by the Revised Statute, chap. 95, sect. 9, provision is made that a wife may be deprived of her dower by joining with her husband or with his legally authorized guardian in a deed releasing it. In a note appended by the commissioners of revision to that chapter and section as presented by them it is said, “ there have been differing opinions on the subject of a married woman’s release of her right of dower as to the mode. The better and the received opinion now is, that the law on the subject is correctly stated in this section.”
The Legislature enacted the section, to which this note was .appended, with some verbal but not substantial alterations, thereby presenting, as it were, a legislative sanction to such a construction.
In the cases of Wilkins v. French and of French v. Pratt, the opinions state, that the demandant had relinquished her right of dower in the premises, but it is so stated historically only in a recital of the facts, and not as a matter considered and decided by the Court.
The deed of the demandant must therefore be regarded as inoperative and ineffectual to release her right of dower in the premises.
*411The next question presented is, whether the assignment of dower made by the Probate Court is a bar to this action.
A [though dower may be assigned to a widow in an estate conveyed by her husband during coverture in mortgage, that assignment cannot be valid against the title of the mortgagee, without an extinguishment of his mortgage. When the mortgage is foreclosed, his title commences from its date, and the widow can have dower only in that estate as in one conveyed by the husband, and can receive only one third part of the rents and income; and an assignment by the heirs or by the Probate Court of the whole estate as dower, is avoided by a foreclosure of the mortgage.
It is insisted, that an acceptance of that assignment by the widow is a bar to an action at law to recover her dower, and that it was so decided in the case of French v. Pratt.
That case and the case of Jones v. Brewer, decide only, that an assignment of dower against common right and an acceptance of it, deprive a widow of her right to dower in lands, in which dower was not assigned, not in lands in which dower was assigned. Nor are the principles or authorities on which those decisions were based, applicable to a case like the present.
The rule as stated by Lord Coke is, that if the heir endow the widow of certain lands, of which the husband died seized, in satisfaction of all dower, as well in the lands of his feofees as in his own lands, the several feofees shall take advantage of it, whether she be deprived of the benefit of such dower or not.
This rule does not affect the relation existing between the “ widow and the owner of lands, in which dower has been assigned.
Tf a widow be endowed against common right in several tracts of land, one of which had been conveyed in mortgage, by the foreclosure of which she is deprived of her dower in that tract, the owner of it cannot plead to an action of dower commenced by her, that dower was assigned to her in other lands, in satisfaction of all dower. When thus de*412prived of a, part of her dower by the act of the mortgagee or his assignee, no injustice is' done to him by considering the assignment of dower so far void as to enable her to recover her dower in the premises, as she might have done, if her dower had been assigned according to common right. His estate is not subjected to any greater burdens on account of dower, than it might have been, had no such assignment been made. While no injustice is done to either by considering the parties after such avoidance of the assignment of dower, as remitted to their original rights, it appeai-s to be the only mode, in which the rights of the widow can be protected.
If a husband should die seized of one tract of land only conveyed by him in mortgage, the widow, according to the case of Wilkins v. French, should have her dower assigned by the Probate Court; and if she had no other property, she might be deprived of her whole dower by a foreclosure of the mortgage, unless such assignment were held to be good as against him as well as ' against the owner of the equity of redemption. She might thus lose her whole dower without fault on her part, or on the part of the mortgagee ; and if the assignment made by the Probate Court were to be regarded as an effectual bar to an action to recover her dower in the same land, the owner would be relieved from her claim to dower in land clearly subject to it, by presenting an assignment made by the Probate Court, as ineffectual to give her dower as against him, and yet as effectual to bar her action at law to recover it. ■ Such an assignment cqnnot be considered as effectual for one purpose and as void for another purpose, so far as it relates to the same estate. Nor is there any sufficient reason to distinguish such a case from one like the present, in which the assignment has been avoided in part only, so far as it respects the land, in .which the assignment has been avoided.
The strength of the position presented in defence may be tested by considering it, as it would be presented by a special plea setting forth an assignment of dower made to the demandant by the Probate Court and an acceptance of it by her, *413to which a replication had been made setting forth the execution of the conveyance in mortgage, its assignment to the tenant, and its foreclosure, by which the assignment of dower had been avoided so far as it respects the premises, and that to this replication there had been a demurrer. Judgment could not be rendered for the tenant without deciding, that proceedings which had been avoided so far as it respects the premises, were still operative to bar an action to recover dower in them.
The conclusion is, when dower has been assigned against common right, and such assignment has been avoided in certain portions of the laud by the acts of the owner, both parties are restored to their original rights in such portions.
A third ground of defence presented is, that the demandant was surety on the bond of the administrator on her husband’s estate, who has misapplied a sufficient amount of that estate to have paid the mortgage held by the tenant, who would thereby have been exempted from any loss occasioned by a recovery of dower.
This assumes, that the premises after the recovery of dower will be insufficient to pay the whole of the debt secured by the mortgage, and that a suit upon the bond of the administrator could be maintained to recover for any loss occasioned by the recovery of dower. Neither this, nor some further grounds of defence presented, can be regarded as sufficient to prevent a recovery by the demandant.
Tenant defaulted.