I dissent from the foregoing opinion upon the ground that the power of attorney did not authorize the executions of the release of dower. Mr. Justice Andrews correctly states that the power authorized the conveyance of any and all lands belonging to Mrs. Bauer, and that it applies to lands subsequently acquired as well as those owned at the time of the execution of the power; but the lands in question never belonged to Mrs. Bauer, but to her husband, and she had not estate in them,—simply an inchoate right of dower. By the power full authority is given to convey lands belonging to the donor of the power, but nothing more. It is true tiiat the attorney is authorized to execute releases of dower, but only for the purposes aforesaid, viz., to convey lands belonging to Mrs. IBauer. The words “releases of dower” have no relation to the power as granted, and hence are surplusage. Even if *56this were not clearly'so, it cannot be said that the question is free, from reasonable doubt, and hence a purchaser should not be compelled to take, as Mrs. Bauer is not bound by our adjudication. I think, however, that there is much more than a reasonable doubt, and that, under a power to sell and convey the estate belonging to a married woman, a release of dower cannot be executed.
O’Brien, J.Apart from the objection that certain judgment creditors should have been made parties to the foreclosure suit, three others are presented against the validity of the title based upon the failure to make the wife of Moritz Bauer a party, presenting three questions thus formulated by Mr. Justice Andrews: First, of the power of a resident married woman-to release her dowry by attorney; second, of her right, if she has such power, to make her husband her attorney for such purpose; third, whether the power of attorney, if otherwise valid, authorizes the release of the wife’s dower in after-acquired property, and for a nominal consideration.
Upon this appeal from an order refusing to release a purchaser at a judicial sale, it is not necessary, in-order to relieve a purchaser, that all the questions should be decided.in his favor, the rule being that, if the questions of law presented are of so serious a character as renders it improper for the court to pass upon them, in the absence of persons interested therein, he should not be compelled to take the title. In other words, where doubtful and debatable questions of fact and law exist, which for their final determination require the presence of other parties, the court will not, in the absence of such parties, make a determination for the purpose of compelling a person to specifically perform a contract to purchase land. In respect to the first of these questions, as to the power of a resident married woman to release her dower by power of attorney, it seems reasonably clear that no such right would exist, were it not for the statutory authority which it is claimed exists by virtue of chapter 300 of the Laws of 1878. The serious question, however, presented under this section, is as to whether it relates to acts other than those connected with her separate estate and business, and can be construed into a repeal of all prior provisions specifying the manner in which she may execute a power of attorney. This precise question has never been passed upon, and, having in view the peculiar nature of a wife’s inchoate right of dower and the various statutes passed in relation thereto, I cannot but regard it as a serious and doubtful question. Assuming, however, that a wife can make her husband attorney for such purpose, the other question is presented,- as stated by Mr, Justice Van Brunt, as to whether the terms of the power of attorney and the conditions thereof have been complied with. The power itself isopen to the construction that it refers and relates only to property then owned, and did not cover or include interest acquired after the granting of the power. I think, upon a judicial sale, a purchaser is entitled to a marketable title free from reasonable doubt, and such I do not think was the one tendered to the purchaser here, and, having made his application to be relieved, it should, under the circumstances, have been granted. I think, therefore,_ that the order appealed from should be reversed, with $10 costs and disbursements, and the application of the purchaser for an order to be relieved should have been granted.