submitted the following opinion :
1 concur in the opinion of the court. Investigation removes a hesitation I had upon a point, upon which I will add some thing.
George French conveyed by deed of warranty to Eben French, George’s wife relinquishing her right of dower. The estate was at the time under attachments by creditors of George. The attachments became perfected by levies upon the property. The same estate was also levied upon by the creditors of Eben. Those against George took the estate, and those against Eben failed to take it. The present defendants, under sundry intervening conveyances, became purchasers under the levies made upon George, and also under those made upon Eben. The opinion decides that under the first named levies the defendants get all their title, and that under the others they get no title, excepting as to a small undivided interest not included in the levies against George. And the opinion holds that the defendants do not get the benefit of the release of dower by George’s wife to Eben with the exception before named, for the reason that they hold the estate, not under the deed of George to Eben, but in opposition to and in spite of it.
The position of defendants’ counsel is; that they hold under Eben as well as under George; that some of the levies upon Eben were made before those upon George ; that Eben and his levying creditors were, or might have been, in possession, receiving rents and profits, before the levies upon George; that they *548became the owners of the estate, subject to the attachments against George; and that, the subsequent levies upon George being purchased by those who held those made upon Eben, the two titles became mingled and merged into one.
This would have been so had the creditors levying upon Eben purchased in the attachments upon George, or had they redeemed the levies made under those attachments before they ripened into ' an absolute fee. But that did not take place. What was at first an incumbrance only, was permitted to become a title. This title displaced and defeated any other claim to title. An estate cannot be occupied by two inconsistent titles at the same time. The principle of merger does not apply. That is where a greater and lesser thing meet, and the latter loses its separate existence and sinks into the former. They must meet in one and the same right. There can be no merger where the estates are successive and not concurrent, nor where one estate is valid and the other void, or has been avoided. Bouv. Law Die. Merger. Richardson v. Wyman, 62 Maine, 283.
The levies upon George and those upon Eben were not in the .same right. They were not concurrent rights. They were not one a dominant and the other a servient estate. They were hostile to each other. The levies upon George found nothing to merge with. The most that could be claimed would be that the deed of George to Eben created a conditional title in Eben until the levies upon George were perfected, making possibly consecutive but not concurrent estates. It is clear that the deed of George conveyed no estate to Eben which, now subsists in Eben’s successors, with the exception named before. The records may show, as far as forms go, that the defendants have a deed representing such a title, but none in reality exists. Blank paper would convey as much title to them. The fact that the defendants have a valid and also a pretended title, cannot make the pretended title good for anything. It is no more in their hands than if in the possession of other persons.
• The defendants, haying no title to the fee through George’s deed, can have no relinquishment of his wife’s dower from that source. It must be borne in mind that a relinquishment of *549dower conveys no estate at all. It is merely a bar or release of a future contingent interest in an estate. Tt is not independent of the foe, but is an inseparable accompaniment of it, an incumbrance upon it. When the fee is conveyed, the dower is relinquished. When the fee conveyed ends, the dower is no longer relinquished. The release amounts to no more than a covenant of non-claim. The wife binds herself that whatever estate the grantee and his privies shall have and enjoy through her husband’s deed in which she joined, shall be exempted from future claim by her. She releases dower in the kind and quantum of estate that, passes by her husband’s deed. From the very nature of the claim its release can only apply to land legally conveyed, and cannot apply to land not convoyed by the deed. So far as Eben got a tide from George’s deed to him, so far did he get the title free from his wife’s dower. If the deed amounted to conveying a base or determinable lee, terminating when George’s creditors became seized under their levies, thus far did the release of dower extend and no farther. After that there was no estate in Eben from George for the relinquishment to attach to or operate upon. It could not operate on the contingent dower alone. In 2 Scrib. Dow. 295, the author says ; “ Her (the wife’s) renunciation of dower is to attend the conveyance of her husband; to endure while that endures and no longer. Hence, if the conveyance of the husband be inoperative, or if it is set aside, or avoided, the right of dower remains unimpaired.” He cites numerous cases in support of the text. See Clowes v. Dickerson, 5 Johns, c. 247.
There are various decisions showing that the release of dower is co-extensive with the estate actually and legally conveyed. A widow is not barred from dower against the assignee of a foreclosed mortgage, in which she did not join, though she joined with her husband to release dower to a third person in the equity of redemption. Littlefield v. Crocker, 30 Maine, 192. It has been many times held that, where the wife joined with the husband in a mortgage, she is dpwable in the right of redeeming from that mortgage. Smith v. Eustis, 7 Maine, 41. Dower will be defeated in an estate where her husband’s seizin is lost by the *550restoration of a prior seizin, as in case of a re-entry for condition broken. 4 Kent, 48. Even if sbe has been actually endowed, and the title of her husband is defeated by a paramount title, her dower terminates upon the eviction. Brown v. Williams, 31 Maine, 406. If the husband is seized of a determinable fee, and it is determined by the happening of the event upon which it is limited, the right of dower on the part of the wife or widow ceases. Wash. P. Prop. Tit. Dow. Where a creditor avoids a deed from the husband to his wife on the ground that it is fraudulent and void as to him, the wife is nevertheless entitled to dower. Richardson v. Wyman, 62 Maine, 280. Robinson v. Bates, 3 Met. 40. If a conveyance of the husband during coverture by error omits a parcel from the description, it cannot be reformed as to the wife. 2 Scrib. Dow. 297, and cases.
In Stinson v. Sumner, 9 Mass. 143, where one had conveyed land with covenants of warranty, his wife joining in the deed to relinquish dower, and the purchaser afterwards recovered damages of the vendor for a defect of his title to the land, it was held that the widow was not barred of her dower. The decision was not upon the ground especially that damages had been recovered on the warranty. The court there say: “'The estate did not pass from Parsons to Hinkley as appears on his own allegations and proceedings; and the relinquishment of dower by the wife cannot now avail, since there is no estate in Hinkley for it to operate upon.” It was enough that an action on the covenants might be maintained. That right existed in Eben under his deed of warranty from George. That case shows that there was an attempt there, as here, to prevail against the dower by a union of titles under opposing deeds. The party there, who held the title without a release of dower, obtained a quitclaim from the person to whom the land had been conveyed with a relinquishment of dower, but whose title had been defeated by prior attachments upon the estate. And in that case, as in the case before us, the deed was not wholly defeated, but carried the fee to one parcel not disturbed by the attachments.
In Ohio an estate was deeded with dower relinquished. The grantee was evicted therefrom by the creditors of the grantor *551upon the ground of a fraudulent conveyance. After levies were made, in a creditor’s bill, tlie court ordered the grantee to release all his right to the creditors, who thereby united, as far as forms could produce it, the title by levy with the title by deed. The court held that the title by deed became defeated by the proceedings of the creditors, and that the widow of the fraudulent grantee was entitled to her dower, and that the conveyance by order of the court was to quiet the title, but could not have the effect of an independent or substantial title that would take the right of dower from her. Woodworth v. Paige, 5 Ohio St. 70. 1 Scrib. Dow. 613, and cases cited.
The case of Harriman v. Gray, 49 Maine, 537, has been widely promulgated as deciding that, although a release of dower to a stranger to the title does not extinguish the right of dower, if the releasee afterwards acquires the title, the release operates to bar the dower as to him, by way of estoppel. That was not the point decided. The most that the ease decides is that a deed relinquishing dower to a person who held the title, but had conveyed it away without warranty, would not enure to such person’s grantee. That case furnishes no support to the position of the defendants here. Eben French was the releasee in this case, but the title did not come to him, nor were there any covenants from him to his successors. Crocker v. Pierce, 31 Maine, 177. Undoubtedly, after a sale by the husband or after his estate has been taken on execution, the wife may relinguish her claim to dower by a separate deed to the person owning the title. Stearns v. Swift, 8 Pick. 532. French v. Peters, 33 Maine, 396. R. S., c. 103, § 6. But that is not this ease.
The defendants are strangers to the title so far as they undertake to hold under the deed from George French to Eben French. The estate upon which the relinquishment of the demandant’s dower was intended by that deed to operate, became defeated, leaving no estate lor her release to operate upon. The widow is not barred except as to those who claim under the deed (in which she joins) as a valid deed conveying the title or some part of it. She is barred as to the small undivided portion of the premises in the deed of her husband, which the attachments against him did not take, and is no further barred.