Follansbee v. Follansbee

The Chief Justice

delivered the opinion of the Court:

The effect of the whole arrangement, as recited in the statement of the case, if the widow be barred by the deed of the 20th of November, 1879, is to strip her of her right of dower without consideration; and there is nothing in the case to show that any person who has dealt with the property or taken title under the deed of the 20th of November, 1879, has, in any manner, been prejudiced or misled by reason of the false recitals in that deed.

The deed of trust was apparently made as security for the payment of money by the husband, and was, therefore, in effect, nothing more than an ordinary mortgage, in which the wife joined as means of adding to the security. Her right of dower remained in the property, subject to the mortgage, until the debt, if any in fact, was paid; and it would have been her right, if the debt was real and actually due, to pay off the debt, and thus procure the release of the incumbrance tipon her dower interest. Swaine v. Perine, 5 Johns. Ch., 482, 494. Here, the debt that purported to be real and owing from the grantor, and to secure which the deed of trust was made, turns out to be feigned; and the apparent creditor, by the surrender to the debtor of the fictitious note, admitted that he had no longer any interest in or claim upon the deed of trust as security, and therefore the inchoate right of dower of the wife in the property, was no longer bound. She was entitled to have that dower interest released, the same as she would have been entitled to have her inchoate right of dower released from an ordinary mortgage that had been discharged by payment or otherwise.

The relinquishment of an inchoate right of dower which a married woman makes by joining in a deed with her husband, can operate against her only by way of estoppel, and there is nothing shown in this case that, upon principle, ought to estop the appellant from asserting her right against the operation of the deed of trust of the 20th of November, 1879.

The principle and reasoning of the case of Malloney v. Horan, 49 N. Y., 111, would seem to be quite conclusive of this case. In that case it was held that dower was not barred by the wife’s release, executed by joining in her husband’s deed, which was afterwards set aside as fraudulent and void as against creditors. In the course of a well reasoned opinion, the Court of Appeals said: “That inasmuch as the release of dower, to be operative, must be in conjunction with a conveyance or other instrument which transfers a title to the real estate, it follows that if the conveyance or instrument is void, or ceases, for any reason, to operate, and no title has passed, or none remained, the release of dower does not, after that, operate against the wife, and she is again clothed with the right which she had released. Such is the familiar case of a wife joining with her husband in the execution of a mortgage, and thereby releasing her right of dower. On the satisfaction of the mortgage her right is restored. And so when a deed has been executed by the husband with full covenants, in which the wife has joined, releasing her dower, and afterwards the grantee has sued for a breach of the covenants, and has recovered full damages, it has been held, the husband dying, that the widow has a right of dower in the premises. Stinson v. Sumner, 9 Mass., 143. The ground upon which that decision is placed comports with reason. It is, that the judgment in an action on the covenants in a deed goes upon the ground that nothing has passed by it to the grantee.”

The same principle is fully adopted by the Supreme Court of the State of Ohio, in the case of Woodworth v. Paige, 5 Ohio St., 72, and in the more recent case in that State of Ridgway v. Masting, 23 Ohio St., 294.

Upon the whole, we are of opinion, that the appellant is entitled to a decree declaring the deed of trust of the 20th of November, 1879, to without legal effect or operation to bar her of her right of dower in the premises therein mentioned and described; and that her right and title to dower in said premises shall, in all respects, be and remain as if said appellant had never joined in said deed; and that she is entitled to an assignment of dower, and to an account for rents and profits for the time that they have been wrongfully withheld from her. And that such decree may be passed, we shall reverse the decree appealed from, with costs, and remand the cause to the court below.