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and intended so to be, and every part thereof, HATH granted, remised, released, and quitted claim, and by this present

contract, engagement, or charge executed, entered into, or created before the said 1st day of January, 1834, the effect of defeating, or prejudicing any right of dower."

Under such a state of the law, a doubt, as before observed, was entertained, whether a lady, situated as is supposed to be that of the wife of the vendor in the form in the text, could, by the means above inserted, extinguish her dower. Upon this subject, Mr. Hayes, in his "Introduction to Conveyancing," (p. 209,) has the following judicious observations, from which it will be collected that these doubts are totally unfounded; and certainly the practice of the profession has fully borne out his ar guments, for in such a case as that supposed in the text, the wife of a vendor married on or before the day stated, conveys, or rather joins in conveying, as above. The learned writer, before named, says, "The condition of married women under the new law, with reference to dower, has produced more controversy than any other point connected with the subject of this chapter, (The new Real Property Acts.) How far the doubts which produced it had any real foundation, will be seen from a brief statement of the two questions which have been most agitated :—1. A doubt was started, whether a woman, married on or before the 1st of January, 1834, can extinguish her title to dower by a deed, acknowledged according to the Fines and Recoveries Act; and, indeed, whether that act extends to dower in its inchoate state. There seems to be no ground for any such doubt, which, if it turn upon the supposed inadequacy of the words "estate interest," &c., to include the wife's title to dower, is really idle, since the word INTEREST, "ex vi termini, in legal understanding," (and à fortiori in the construction of an act of parliament of this description), "extendeth to estates, rights, and titles, that a man hath, of, in, to, or out of lands; for he is truly said to have an interest in them" (Co. Litt. 345, 346.); and if it turn upon any supposed repugnancy between the Fines and Recoveries Act, and the Dower Act, is, if possible, still less deserving of serious refutation. The former act merely abolishes the old mode, and substitutes generally a new mode of assurance by married women; the latter act dispenses, to a certain extent, with the necessity of any conveyance by the wife. To every case in which a conveyance by the wife is or shall be requisite, the substituted assurance applies. This doubt derives more countenance than it seems to deserve, from the remark of a writer of high authority, that "the 3 and 4 Will. 4. c. 74. s. 77, may be held to extend to dower, so as to enable a married woman to destroy it; but it does not, in expression, accurately embrace it." (Sug. Vend. 9 Edit. 344.) 2. It has been contended, that the dower of a woman, married on or before the 1st of January, 1834, out of lands purchased by the husband after that day, may be excluded by a declaration (and as a consequence by alienation, &c.) under the Dower Act. In order to support that proposition, the last sect. (viz. sect. 14, before referred to), must be expounded thus:-"This act shall not extend to any title of dower which shall have attached, or shall attach on or before the 1st of January, 1834,"

Indenture, intended to be acknowledged by her in pursuance of the act of parliament, passed in the fourth year of the

instead of "This act shall not extend to the dower of any widow who shall have been, or shall be married on or before, &c.; and the question will be, not when the woman was married, but when the dower first attached— a question not of extrinsic fact, but of title. According to this exposition (which entirely changes the language of the enactment) if on or be fore the 1st of January, 1834, land was limited to A. for life, remainder to the husband in fee, or to A. and the husband as joint tenants in fee, and A. died after that day, leaving the husband and wife the dower, then first attaching might be excluded by the declaration or alienation of the husband, &c.; though the wife may not unreasonably be presumed to have calculated on the contingency of the husband's becoming seised solely, or seised in possession. It would not be possible to distinguish between such cases and the common case of an original acquisition by purchase after the 1st of January, 1834. The construction must be, either with reference to the time when the marriage was contracted, or with reference to the time when the dower attached. On the other hand, if titles of dower, attaching after the 1st of January, 1834, of women married on or before that day cannot be defeated by a declaration, &c.; under the Dower Act, it seems to follow, that such women cannot claim dower in equity under the act. It would not, indeed, be just or reasonable that they should be allowed to take the benefit of the provision made by the act, except upon the terms imposed by the act, that they should claim at once under and in opposition to the same law. It must be admitted, that the concluding section of the Dower Act is obscurely worded, and open to different constructions; but the sound conclusion seems to be, that the new law of dower was made for women married after the 1st of January 1834, exclusively. This construction offers no violence to the letter of the act, while, for all practical purposes, it draws a broad and intelligible line of demarcation. The first branch of the section excepts out of the act women married on or before the 1st of January, 1834; the second branch restricts the operation of the act as to women left within the act to instruments and acts executed and done on or after that day. The natural import of the words is, "That none of the effects attributed by this act to the declaration, &c., of the husband, shall belong to any such declaration, &c., made, &c., before the 1st of January, 1834:" but the act has attributed no effect, or rather, has denied effect to the declaration, &c. of the husband in regard to women married on or before that day. That construction is the best which, without departing from the words, gives a reasonable and consistent operation to both branches of the section. If, by a stretch of implicative construction, the clause be read as affirming the efficacy of a deed, &c. executed, &c. on or after the 1st of January, 1834, to defeat or prejudice any right of dower, how is that reading to be reconciled with the previous saving of rights of dower attaching on or before the 1st of January 1834? The interpretation in question would have been dismissed with a brief notice, if the writer had not been informed of attempts made, under the sanction of respectable advisers, to enforce its adoption in practice. In order to meet, without appearing

Freehold parcels.

General words.

reign of his late Majesty King William the Fourth, intituled, "An Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance," DOTH grant, remise, quit claim, and release unto the said [purchaser], (in his actual possession now being, by virtue of a bargain and sale to him thereof made by the said [vendor], in consideration of 5s., by an Indenture bearing date the day next before the day of the date of these presents, for the term of one whole year, commencing from the day next before the day of the date of the said Indenture of bargain and sale, and by force of the statute made for transferring uses into possession) and his heirs, ALL [freehold parcels], Together with all and singular houses, outhouses, edifices, buildings, barns, stables, coachhouses, cottages, yards, gardens, orchards, backsides, tofts, lands, meadows, pastures, commons, common of pasture, common of turbary, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, mounds, fences, hedges, ditches, ways, waters, watercourses, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances whatsoever to the said messuages or tenements, farms, lands, and hereditaments belonging or in anywise appertaining, or with the same, or any of them respectively, now, or at any time heretofore demised, leased, held, used,

to countenance, the doubt upon the point last discussed, the declaration may be thus expressed : "And the said [purchaser] hereby declares, that no woman who shall become his widow, and who shall not be excluded from dower out of the said hereditaments and premises by the effect of the limitations hereinbefore contained, (or,) and who, but for this declaration, would be dowable out of the said hereditaments and premises, shall be dowable thereout."

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The second objection, referred to by the learned writer from whose work the foregoing extracts have been made, does not, it will be observed, occur as respects the form in the text; but still it has been thought advisable to state it at the same time with the arguments against the first objection, and when, hereafter, it may be found necessary to allude to the second objection, to refer to the present note.

Assuming then, as it appears clear we may, that a wife married on or before the 1st of January, 1834, may bar her dower by the declaration and joining in the conveyance above mentioned, in all such cases as may hereafter occur in this selection, where the wife of the vendor may be supposed to be in such situation, that form will be adhered to.

occupied, or enjoyed, or accepted, reputed, deemed, taken, or known as part, parcel, or member of them, or any part of them, or appurtenant thereunto, with their and every of their appurtenances; AND the reversion and reversions, remainder And the reverand remainders, yearly and other rents, issues, and profits of sion.

all and singular the messuages or tenements, hereditaments, and premises hereby granted and released, and intended so to

be, AND all the estate, right, title, interest, inheritance, re- And all the version, use, trust, possession, property, claim, and demand estate, &c. whatsoever, both at law and in equity of him the said [vendor] and Mary his wife, of, in, and to the same premises, and every part and parcel thereof, TO HAVE AND TO HOLD the

said messuages or tenements, farms, lands, hereditaments, Habendum to and all and singular other the premises hereby granted and purchaser. released, or expressed and intended so to be, with their appurtenances, unto the said [purchaser] and his heirs;

bar dower.

To such uses, upon such trusts, and to and for such intents Limitation to and purposes, and with, under, and subject to such powers, provisos, agreements, and declarations as the said [purchaser] shall by any deed or deeds, writing or writings, with or without power of revocation and new appointment, to be by him sealed and delivered in the presence of, and attested by two or more credible witnesses, from time to time direct, limit, or appoint; and for default of, and until such direction, limitation, or appointment, and so far as no such direction, limitation, or appointment shall extend, To the use of the said [purchaser], and his assigns during his life, without impeachment of waste; And after the determination of that estate, by forfeiture or otherwise in his lifetime, To the use of the said [trustee to bar dower], and his heirs during the life of the said [purchaser], In trust for him the said [purchaser], and his assigns during his life, and to prevent the wife of the said [purchaser] from being entitled to her dower out of or in the premises, or any part thereof; and after the determination of the estate so limited in use, to the said [trustee to bar dower] and his heirs during the life of the said [purchaser] as aforesaid, To the use of the said [purchaser] his heirs and assigns, Covenant by for ever; AND the said [vendor] doth (f) hereby for himself,

(f) This covenant is not always inserted by conveyancers, on the ground, that the conveyance is not complete by the words of the act

vendor that his

wife shall ac- his heirs, executors, and administrators, covenant, promise, and knowledge the agree to and with the said [purchaser], his heirs, appointees,

deed.

unless acknowledgment follows. Still, it is thought better that it should be inserted, in order that, supposing any difficulty should occur in procuring the acknowledgment, the covenantee [purchaser] may have his remedy for damages at law for breach of the covenant, or, at his option, (which of course he would have without this covenant) an action for damages for want of the contract. It need scarcely be added, that a bill in equity, for specific performance of the contract, would not lie, under such circumstances, against the covenantor; because a court of equity would not compel the wife to part with her interest in the property.

It will be observed, that the covenant is, that the wife shall acknowledge "these presents," confining the operation of the covenant to the deed of release. As the wife, before the Fines and Recoveries Act, would only have joined in the fine, the deed of covenant to levy the same being entered into by the husband (a married woman not being competent to covenant), so now she, by any deed, may bar herself of her right of dower; and therefore as that is effected by the release, there is no need for her to acknowledge the lease for a year, on which the same is grounded.

Where, however, the conveyance is of estates belonging to the wife, or rather to the husband in her right, the practice is, that the wife should acknowledge the lease upon which the deed of release is grounded, as well as the release itself; and this seems to be the distinction taken in the profession. Upon slight reflection it may perhaps appear that this is a superfluous caution; for, as in case of a devise or other assurance of lands to a married woman, in fee, the husband is entitled to an estate for the joint lives of himself and wife, and therefore a present estate of freehold, sufficient to enable him alone to make the bargain and sale or lease for a year on which the release is to be grounded, and consequently that the wife's concurrence is only requisite to the release by which her interest, ultra her husband's interest, is to be conveyed; her acknowledgment, therefore, of the release is alone required by the act of parliament. As, however, the practice has obtained of making the wife (though unnecessarily) a party to the lease for a year, as well as the release, and therefore as her acknowledgment of both is considered essential, that form will hereafter be followed in cases where the husband and wife dispose of lands the property of the wife. Although this point does not arise in this place, it has been thought, in referring to the general subject, that it would be better to observe upon it at once. The clause of the act, requiring the acknowledgment of deeds by married women, is the 79th; and is as follows:-"And be it further enacted, that every deed to be executed by a married woman for any of the purposes of this Act, except such as may be executed by her, in her character of protector, for the sole purpose of giving her consent to the disposition of a tenant in tail, shall, upon her executing the same, or afterwards, be produced and acknowledged by her as her act and deed, before a judge of one of the superior courts at Westminster, or a master in Chancery, or before two of the perpetual Commissioners, to be respectively appointed as herein-after provided."

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