Opinion of the court.

and having accepted the provisions thereof by receiving $50,000 thereunder, has elected to take the provisions so made in preference to dower.*

3. The appellant being a non-resident could not have dower in laud of which her husband did not die seized.†

4. The statutes in force in Minnesota in 1849, the time when the letter of attorney in question was executed, removed all disability from a feme covert in relation to releasing her dower. She was rendered competent alone, without joining her husband, to release her dower "in like manner as if she were sole."

[This point the learned counsel argued on citations of statutes governing Wisconsin Territory, and which he sought to show had been adopted in Minnesota.]

Mr. Justice SWAYNE delivered the opinion of the court. There is no controversy between the parties as to the facts. When the power of attorney was given there was no law of Minnesota authorizing such an instrument to be executed by husband or wife, or the attorney to convey under it.

The validity of the deed as respects Randall, the husband, is not questioned, but its efficacy as to the widow, the appellant in this case, is denied. Her claim to dower is resisted upon several grounds, and among them that the defect in the deed was remedied by the curative act of 1857.

We have found it necessary to consider only the point just stated.

It is not objected that the act of 1857, as regards its application to the present case, is in conflict with the constitution of the State. We have carefully examined that instrument and have found nothing bearing upon the subject.

* Section 18, chapter 49, p. 219, of Revised Statutes of Minnesota of 1851; Section 18, chapter 48, p. 362, of the General Statutes of Minnesota, 1866; Read v. Dickerman, 12 Pickering, 146, construing a statute in Massachusetts similar to the one above cited.

† Section 21, chapter 49, of the revision of 1851, p. 219; Section 21, of chapter 48, of the revision of 1866, p. 362; Pratt v. Tefft, 14 Michigan, 191, .construing provisions the same with these in the law of Michigan.

Opinion of the court.

Nor was the act forbidden by the Constitution of the United States.

There is nothing in that instrument which prohibits the legislature of a State or Territory from exercising judicial functions, nor from passing an act which divests rights vested by law, provided its effect be not to impair the obligation of a contract. Contracts are not impaired but confirmed by curative statutes.*

Marriage is an institution founded upon mutual consent. That consent is a contract, but it is one sui generis. Its peculiarities are very marked. It supersedes all other contracts between the parties, and with certain exceptions it is inconsistent with the power to make any new ones. It may be entered into by persons under the age of lawful majority. It can be neither cancelled nor altered at the will of the parties upon any new consideration. The public will and policy controls their will. An entire failure of the power to fulfil by one of the parties, as in cases of permanent insanity, does not release the other from the pre-existing obligation. In view of the law it is still as binding as if the parties were as they were when the marriage was entered into. Perhaps the only element of a contract, in the ordinary acceptation of the term, that exists is that the consent of the parties is necessary to create the relation. It is the most important transaction of life. The happiness of those who assume its ties usually depends upon it more than upon anything else. An eminent writer has said it is the basis of the entire fabric of all civilized society.†

By the common law, where there was no ante-nuptial contract, certain incidents belonged to the relation.

Among them were the estate of tenant by the courtesy on the part of the husband if issue was born alive and he survived the wife, and on her part dower if she survived the husband. Dower by the common law was of three kinds: Ad ostium ecclesiæ, Ex assensu patris, and that which in the absence of the others the law prescribed. The two former

* Satterlee v. Matthewson, 2 Peters, 380; Watson v. Mercer, 8 Id. 110. † Story's Conflict of Laws,

109.

Opinion of the court.

were founded in contract. The latter was the creature of the law. Dower Ad ostium ecclesiæ and Ex assensu patris were abolished in England by a statute of the 3d and 4th William IV, ch. 105. The dower given by law is the only kind which has since existed in England, and it is believed to be the only kind which ever obtained in this country.

During the life of the husband the right is a mere expectancy or possibility. In that condition of things, the lawmaking power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive, before the death of the ancestor. Until that event occurs the law of descent and distribution may be moulded according to the will of the legislature.

Laws upon those subjects in such cases take effect at once, in all respects as if they had preceded the birth of such persons then living. Upon the death of the husband and the ancestor the rights of the widow and the heirs become fixed and vested. Thereafter their titles respectively rest upon the same foundation, and are protected by the same sanctions as other rights of property.*

The power of a legislature under the circumstances of this case to pass laws giving validity to past deeds which were before ineffectual is well settled.†

In Watson v. Mercer, the title to the premises in controversy was originally in Margaret Mercer, the wife of James Mercer. For the purpose of transferring the title to her husband, they conveyed to a third person, who immediately conveyed to James Mercer. The deed of Mercer and wife bore date of the 30th of May, 1785. It was fatally defective

* 2 Scribner on Dower, pp. 5-8; Lawrence v. Miller, 1 Sandford's Supreme Court, 516; Same Case, 2 Comstock, 245; Noel and wife v. Ewing et al., 9 Indiana, 37; Lucas v. Sawyer, 17 Iowa, 517; White v. White, 5 Barbour, 474; Vartie v. Underwood and wife, 18 Id. 561,

Sedwick on Statutory and Constitutional Law, 144, note; Cooley on Constitutional Limitations, 376. 8 Peters, 100.

Opinion of the court.

as to the wife in not having been acknowledged by her in conformity with the provision of the statute of Pennsylvania of 1770, touching the conveyance of real estate by femes covert. She died without issue. James Mercer died leaving children by a former marriage. After the death of both parties, her heirs sued his heirs in ejectment for the premises and recovered. The Supreme Court of the State affirmed the judgment. In 1826 the legislature passed an act which cured the defective acknowledgment of Mary Mercer, and gave the same validity to the deed as if it had been well executed originally on her part. The heirs of James Mercer thereupon sued her heirs and recovered back the same premises. This judgment was also affirmed by the Supreme Court of the State, and the judgment of affirmance was affirmed by this court. This case is conclusive of the one before us.*

To the objection that such laws violate vested rights of property it has been forcibly answered that there can be no vested right to do wrong. Claims contrary to justice and equity cannot be regarded as of that character. Consent to remedy the wrong is to be presumed. The only right taken away is the right dishonestly to repudiate an honest contract or conveyance to the injury of the other party. Even where no remedy could be had in the courts the vested right is usually unattended with the slightest equity.†

There is nothing in the record persuasive to any relaxation in favor of the appellant of the legal principles which, as we have shown, apply with fatal effect to her case. The curative act of 1857 has a strong natural equity at its root. It did for her what she attempted to do, intended to do, and doubtless believed she had done, aud for doing which her husband was fully paid.

* See also Calder v. Bull, 8 Dallas, 388; Wilkinson v. Leland, 2 Peters, 627; Livingston v. Moore, 7 Id. 486; Kearney et al v. Taylor et al., 15 Howard, 495; Chestnut v. Shane, 16 Ohio, 599; Goshorn v. Purcell, 11 Ohio State, 641; Lessee of Watson v. Bailey, 1 Binney, 477; Gibson v. Hibbard, 13 Michigan, 215; Foster v. Essex Bank, 16 Massachusetts, 245; State v. Newark, 3 Dutcher, 197.

† Cooley's Constitutional Limitations, 378.

Syllabus

The purchase-money for the lot became a part of his estate, and the entire estate was given to her at his death. Not satisfied with this she seeks to fasten her dower upon the property in question.

The act accomplished what a court of equity, if called upon, would have decreed promptly as to the husband, and would have failed to decree as to the wife only from the want of power. The unbending rule of law as to femes covert in such cases would have prevented it. The legisla ture thus did what right and justice demanded, and the act strongly commends itself to the conscience and approbation of the judicial mind.

DECREE AFFIRMED.

STICKNEY, ASSIGNEE, v. WILT.

1. A proceeding under the Bankrupt Act in which by petition in form, the assignee sets forth articulately that A., B, C., &c., claim liens against the bankrupt's estate, the validity of each of which liens he, the assignee, denies, and in which he prays that the parties setting up the liens may be made parties, and be required to answer, each of them, all his charges and allegations as made, and be compelled, each of them, to set forth and state in their respective answers the particulars and facts upon which their respective claims are based, and that on final hearing all questions and rights of each and all the parties may be ascertained and determined by the court, and that the petitioner be directed to sell the estate and distribute the proceeds; and in which the assignee prays that he "may have such other and further relief in the premises, and may be further directed in his duties as the nature of the case requires;" in which proceeding, the parties asserting the liens, answer in form, and the assignee replies in form, is a "case in equity" within the eighth section of the Bankrupt Act, which gives an appeal to the Circuit Court in all cases in equity; and is not a case for the general superintendence and jurisdiction by that court given in the second section of the act, in cases where no provision for the supervision of the Circuit Court is otherwise made.

2. The fact that a subpœna is not prayed for, does not change this view; the defendants voluntarily appearing.

3. If such a case be taken into the Circuit Court under this general superintending jurisdiction given by the said second section, it is wrongly