delivered the opinion of the Court. This case presents the single point, whether the premises conveyed bv the defendant, with covenant of warranty that the same were free from a 1 incumbrances, were at the time of making the conveyance subject to a right of dower in one Rebecca Blood, the widow of Silas Blood junior.
*84The statutes of this Commonwealth giving to a widow a right of dower in the estate of her deceased husband, do not particularly define the nature and extent of that interest, but provide that she shall be entitled to her dower at common law in the lands of her husband, unless she is lawfully barred thereof.
Littleton, § 36, thus defines dower at common law. “ Tenant in dower is, where a man is seised of certain lands or tenements in fee simple, fee tail general, or as heir in special tail, and taketh a wife and dieth, the wife, after the decease of her husband, shall be endowed of the third part of such lands and tenements as were her husband’s at any time during the coverture.”
It will be readily perceived, that among the things essential to create a right of dower, one is, that the husband should, at some period during the coverture, be seised of the estate in which dower is claimed, although, in favor of the rights of the wife, it may be either a seisin in law or a seisin in deed.
This principle, which is fully stated in the elementary books, has been directly recognized in this Commonwealth in the case of Eldredge v. Forrestal, 7 Mass. R. 258, where it was held, that a legal seisin by the husband, of a vested remainder, is not sufficient to entitle his widow to dower. The same doctrine was stated in Dunham v. Osborn, 1 Paige, 634, and Blow v. Maynard, 1 Leigh, 30.
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■ We are then brought to the inquiry as to the effect of the lease of Silas Blood junior to the defendant, of the 7th of September, 1807, upon the subsequent seisin of the grantor, in the premises in which a right of dower is said to exist. This lease has never been acknowledged before a magistrate, and, though in form certified to have been recorded, yet. for the reason just stated, could not legally be recorded in the office of the register of deeds.
The case is, therefore, substantially the same as one of a lease for a term of more than seven years executed by a party before his marriage, but never recorded, and presents the gen eral question, whether a widow is entitled to dower in land which her husband had conveyed, before marriage, tiy a deed unrecorded at the time of the marriage.
It is contended, that by the St. 1783, c. 37, § 4, such a *85conveyance is not good and effectual in law as against any other persons than the grantor and his heirs, and that the widow of the grantor not standing in either of these relations, cannot be barred by it. It is true, that the widow is not the grantor; nor does she claim in the capacity of heir at law of the grant- or. But it is also true, that she does found her claim wholly upon the seisin of the grantor of these lands after the execution and delivery of this lease; and if the effect of an unrecorded conveyance was, as regards the husband, such as to defeat his seisin, the right of the widow must fail.
The error of the plaintiff is in not properly considering the peculiar character of the estate alleged to be in Mrs. Blood. Her title rests entirely upon a right of dower at common law. The principles of the common law require a seisin of her husband in the premises, during the coverture ; but the unrecorded lease of her husband was good and effectual as against the grantor, and, by the force and effect of it, he parted with his legal seisin, so that at no period of time after the intermarriage with Mrs. Blood, was he, in any manner, seised of the land conveyed by the defendant with covenants of warranty to the plaintiff.
This view of the case is also a perfect answer to the suggestion of the counsel for the plaintiff, that Mrs. Blood may be entitled to her dower in the premises after the termination of the life estate of Silas Blood senior, as well as to the further suggestion, that the acceptance by the defendant of a deed of the fee of the land from one George Johnson, who had purchased the same at an administrator’s sale, was a merger of the life estate of the defendant, and would operate to give a right of dower to Mrs. Blood. These suggestions do not, in any degree, avoid the objection which lies at the foundation of the claim of dower in the widow, that her husband was not seised at any time during the coverture. The Court are, therefore, of opinion, that there has been no breach of the covenant in the deed of the defendant; and the plaintiff must become nonsuit.