Dundas v. Hitchcock
53 U.S. 256 (1851)

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U.S. Supreme Court

Dundas v. Hitchcock, 53 U.S. 12 How. 256 256 (1851)

Dundas v. Hitchcock

53 U.S. 256

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF ALABAMA

Syllabus

Where a mortgage was executed by a husband, his own name only being used in the body of the instrument, but it was signed by his wife also, who relinquished her

Page 53 U. S. 257

right of dower, and made her acknowledgment in an after part of the instrument, and there is sufficient evidence from an inspection of the whole instrument to believe that the intention of the parties was to consider the whole paper as forming one assurance, the wife will be barred of her dower as far as the mortgage is concerned.

Where a statute requires a private examination of the wife to ascertain that she acts freely, and not by compulsion of her husband, but prescribes no precise form of words to be used in the certificate, it is sufficient if the words of the acknowledgment have the same meaning and are in substance the same, with those used in the statute.

Where a widow was allowed one year after probate of her husband's will to elect whether to take under it or not, and by the will she was sole devisee for herself and children, and before the expiration of the year she released to the mortgagee all her estate, right, and claim to the mortgaged premises, styling herself widow and sole devisee, she cannot afterwards avail herself of her right of election and set up a claim to dower outside of the will; she is estopped by her deed.

This was an appeal from the Circuit Court of the United States for the Southern District of Alabama. There were two cases between the same parties, depending upon the same principles, and only differing as to the property mortgaged. The notice of one will suffice for both.

The plaintiffs in error were the trustees of the Bank of the United States, being the assignees of Cowperthwaite, Dunlap, and Cope, the original trustees.

In July, 1838, Henry Hitchcock, of Mobile, Alabama, came to a settlement of many transactions of loans and discounts with the Bank of the United States, and was found indebted to the amount of six hundred and twenty thousand, five hundred and thirty dollars, and ninety-six cents $620,530.96. He gave his bond for this sum, payable in four installments, and to secure it executed a mortgage which gave rise to one of the questions in the present suit, the point being whether or not his wife so far joined in the mortgage as to relinquish her right of dower. Her dower in the equity of redemption was not called in question, but was worth nothing.

The mortgage commenced in this way: "Know all men by these presents that I, Henry Hitchcock, of the City and County of Mobile, in the State of Alabama," &c., and concluded in this way:

"Provided always, and these presents are upon this express condition, that if the said Henry Hitchcock shall well and truly pay to the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, the survivors or survivor of them, the sum of six hundred and twenty thousand five hundred and thirty dollars and ninety-six cents, with eight percent interest per annum, from the first day of March, A.D. one thousand eight hundred and thirty-eight, thereon accruing, payable semiannually, according to the condition of a certain bond by the said Henry Hitchcock given, payable to the said Joseph

Page 53 U. S. 258

Cowperthwaite, Thomas Dunlap, and Herman Cope, bearing even date with these presents, then these presents shall cease, determine, and be void, otherwise to be and remain in full force and virtue. Given under my hand and seal, this fourteenth day of July, in the year of our Lord one thousand eight hundred and thirty-eight."

"H. HITCHCOCK"

"ANNE HITCHCOCK"

"Signed, sealed, and delivered in the presence of:"

"And I, Anne Hitchcock, wife of the said Henry Hitchcock, for and in consideration of the sum of one dollar to me in hand paid by the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, have relinquished, and hereby do relinquish by these presents, all my right and title of dower in and to the above described premises to the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, the survivors or survivor of them, and to the heirs, executors, and assigns of such survivor forever."

"Witness my hand and seal this fourteenth day of July, one thousand eight hundred and thirty-eight."

"ANNE HITCHCOCK [SEAL]"

"Attest: CHARLES A. MARSTON"

"THE STATE OF ALABAMA"

"Mobile County"

"Personally appeared before me Charles A. Marston, notary public in and for said county, the above-named H. Hitchcock, who acknowledged that he signed, sealed, and delivered the foregoing indenture of mortgage to Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, on the day and year therein mentioned. And also appeared personally before me Charles A. Marston, Anne Hitchcock, wife of the said H. Hitchcock, who being examined privately and apart from her said husband, acknowledged that she signed, sealed and delivered the said indenture of mortgage freely and of her own accord and without any fear, threats, or compulsion of her said husband."

"Given under my hand and seal notarial, this fourteenth day of July, A.D. 1838."

"CHARLES A. MARSTON"

The first installment of debt and interest became due in March, 1839, in the life of Hitchcock. He made default in the payment of the first installment. The Bank of the United States then filed their bill to foreclose the mortgage in the Court of Chancery at Mobile. Hitchcock resisted the payment of the debt

Page 53 U. S. 259

upon the plea of usury. There had been no decision of this suit at the date of Hitchcock's death, which took place 11 August, 1839.

In August, 1839, Hitchcock made his will, legally authenticated, and devised his property in trust to his wife for the use of his wife and children after the payment of certain legacies.

This will was admitted to probate in the Orphans' Court of Mobile County in August, 1839, but neither letters testamentary nor of administration were issued until February, 1840.

After the death of Hitchcock, his widow, Anne, took possession of the estate and executed many leases, but never qualified as executrix. James Erwin, her brother, purchased at sheriff's sale all the right and title of Hitchcock to a part of the property for fifty dollars, and procured an attornment from the tenants. This gave rise to a suit which is reported in 45 U. S. 4 How. 58.

In February, 1840, sundry negotiations took place between the parties, which eventuated in the execution of the following deeds and releases, viz.:

1. On 8 February, 1840, Anne Hitchcock executed a deed to Cowperthwaite, Dunlap, and Cope. It commenced thus:

"This indenture, made this eighth day of February, A.D. 1840, by and between Anne Hitchcock, widow and sole devisee of Henry Hitchcock, late of Mobile County, acting under and by virtue of the last will and testament, and the several codicils thereto annexed, of the said Henry Hitchcock, duly proved and of record in the Orphans' Court of Mobile County, of the first part, and Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, of the City of Philadelphia and State of Pennsylvania, of the second part, witnesseth:"

"That the party of the first part, for and in consideration of the sum of seven hundred and fifty-three thousand four hundred and fifty-two dollars and twenty-three hundredths dollars to her well and truly in hand paid at and before the ensealing and delivery of these presents by the said parties of the second part, the receipt whereof she doth hereby acknowledge, hath remised, released, conveyed, and forever quitclaimed, and doth by these presents remise, release, convey, and forever quitclaim, unto the said parties of the second part, the survivors and survivor of them, and the heirs, executors, administrators, and assigns of such survivor, all the estate, right, title, interest, use, trust, property, claim and demand whatsoever, at law as well as in equity, in possession as well as in expectancy, of, in, to, or out of all and singular the following described lands and premises; that is to say,"

&c. Then followed a conveyance of the mortgaged property, leases, and all.

2. On 10 February, James Erwin executed a deed to Cowperthwaite, Dunlap, and Cope for the property which he had bought at sheriff's sale. The consideration was one hundred and fifty thousand dollars, which, it was alleged, was to be appropriated to the payment of other debts of Hitchcock, which were not secured by mortgage.

3. A release by the bank to Anne Hitchcock. This recited the bond, the mortgage, and delivery to the bank by Anne of the lands and houses devised to her and then agreed that the bank should look only to the mortgaged property for the payment of its debt and should surrender the notes and bills given by Hitchcock to the bank.

After the execution of these deeds, but within a year from the death of her husband, viz. on 15 August, 1840, Anne refused to qualify as executrix and repudiated the provisions made for her in the will and claimed dower in lieu thereof. These papers were filed and recorded in the Orphans' Court of Mobile County, whereupon Isaac H. Erwin was appointed administrator with the will annexed.

In 1840, the bank filed a bill in the Court of Chancery at Mobile against Isaac H. Erwin, Anne, and her children, which court decided that the property was properly held by the bank under the deeds and that the defendants should be foreclosed unless the debt and costs were paid by a certain day. This decree was carried by appeal to the Supreme Court of Alabama, and there affirmed at January term, 1845.

On 23 April, 1847, Anne Hitchcock filed a bill in the Circuit Court of the United States for the Southern District of Alabama against the bank, claiming dower in the lands included in the mortgage. The bank answered, evidence was taken, and the judge of the circuit court decided that the complainant was entitled to dower and decreed that it should be set off to her. From this decree the bank appealed to this Court.

Page 53 U. S. 265

MR. JUSTICE GRIER delivered the opinion of the Court.

The respondent, Mrs. Anne Hitchcock, was complainant below in two bills filed in the Circuit Court of Alabama claiming her dower in certain property in the City of Mobile of which her late husband, Henry Hitchcock, was seized in his lifetime and of which the appellants, as trustees of the United States Bank, were in possession, claiming under a mortgage given by said Henry.

The answer admits the marriage of complainant and the seizin and death of her husband and that the appellants hold the property under a deed of mortgage from him, but deny that complainant has any right of dower in the premises.

1st. Because she was a party to the deed of mortgage, and had relinquished her right of dower by her deed duly executed and acknowledged.

2d. That after the death of her husband, the complainant took possession of his property as sole devisee in fee and surrendered the possession to the mortgagees in satisfaction of the debt, and for a large consideration paid to her executed a full and absolute release to them of all her right, title, interest, and estate, in the mortgaged property.

3d. That she was estopped by a decree of the court of Alabama on a bill filed by the mortgagees for a foreclosure and to have their title quieted.

If the appellants can succeed in establishing either of these three grounds of defense, they will be entitled to a decree in their favor.

We will therefore consider them in their order.

I. The instrument of mortgage is dated on 14 July, 1838. The first part of it is a deed poll in the usual form:

"Know all men &c. that I, Henry Hitchcock of Mobile &c., in consideration of the sum of $620,530.96, to me in hand paid, by these presents do grant, bargain, sell &c.,"

and concluding, "Given under my hand and seal," and signed "Henry Hitchcock, Anne Hitchcock," with their respective seals; also these words, "Signed, sealed, and delivered in presence of," but no names of witnesses annexed.

Page 53 U. S. 266

Under these signatures and attestation is the following release, signed and sealed by Anne Hitchcock:

"And I, Anne Hitchcock, wife of the said Henry Hitchcock, for and in consideration of the sum of one dollar to me in hand paid by the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, have relinquished, and hereby do relinquish by these presents all my right and title of dower in and to the above-described premises to the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, the survivors or survivor of them, and to the heirs, executors, and assigns of such survivor forever."

"Witness my hand and seal this fourteenth day of July, one thousand eight hundred and thirty-eight."

"ANNE HITCHCOCK [Seal]"

"Attest: Charles A. Marston"

The acknowledgment which appears to have been taken at the same time is as follows:

"THE STATE OF ALABAMA"

"Mobile County"

"Personally appeared before me Charles A. Marston, notary public in and for said county, the above-named Henry Hitchcock, who acknowledged that he signed, sealed, and delivered the foregoing indenture of mortgage to Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope on the day and year therein mentioned. And also appeared personally before me Charles A. Marston, Anne Hitchcock, the wife of said H. Hitchcock, who being examined privately and apart from her said husband, acknowledged that she signed, sealed, and delivered the said indenture of mortgage freely, and of her own accord, and without any fear, threats, or compulsion of her said husband."

"Given under my hand and seal notarial, this fourteenth day of July, A.D. 1838."

"CHARLES A. MARSTON"

The objections to the sufficiency of this instrument to bar the dower of the wife are 1st "That the mortgage is the deed of the husband only. It contains no words of grant by the wife -- her name is not mentioned in the deed."

2d. That the relinquishment of dower is a several and separate deed which should have the signature of the husband, to show his consent, and that it was the joint act of husband and wife.

3d. That the acknowledgment of Mrs. Hitchcock is of "the said indenture of mortgage," and not of her relinquishment of dower.

Page 53 U. S. 267

And 4th. That the acknowledgment is not in due form of law.

The first three of these objections are founded on the assumption that the release of Mrs. Hitchcock forms no part of the deed of mortgage, but is a separate and distinct deed. It is true if that portion of the instrument above the joint signatures of the husband and wife is to be construed as the whole indenture of mortgage, the first proposition cannot be denied. For the instrument thus far does not purport to dispose of any right or interest vested in the wife, and if nothing further had been added, the deed would have been wholly inoperative for that purpose. But the face of the instrument shows that it does not end there, for it proceeds,

"And I, Anne Hitchcock &c., in consideration of the sum of one dollar to me in hand paid by the said Joseph &c., to relinquish all my right and title of dower in and to the above-described premises to the said Joseph,"

&c.

Usually this initiate and contingent right of dower is barred, in deeds of sale and mortgage, by a conveyance making the grant in the joint names of the husband and wife in the same manner as if the estate belonged to the wife, the deed operating by way of estoppel when the right of dower becomes complete by the death of the husband. But when the legal estate is vested wholly in the husband and the right of the wife is but a contingent encumbrance, there is no necessity that she should join in the grant of the fee, the release of her inchoate right, acknowledged in due form, being all that is necessary to bar her from setting up a claim of dower after the death of her husband.

The insertion of the clause of release of dower might generally be considered by conveyancers as in better taste, if it had preceded the signature and attestation of the other covenants which affected the fee of the husband; but there is no stringent unbending rule of law, which requires a deed to be in such form, or in any peculiar form, in order to operate as a valid conveyance. The intention of the parties is to be gathered from an inspection of the whole instrument of assurance taken together. It ought not to be dislocated and rent into separate fragments by a captious or astute construction, whose only result is to defeat the plain meaning and intention of the parties.

The acts of assembly of Alabama concerning conveyances, frequently use the phrase "deeds and relinquishments of dower," which is probably the cause or the consequence of this form of conveyancing in that state, and that in popular parlance, a conveyance of land in this form is described as if a "relinquishment of dower" was not a deed, or a portion of the conveyance, assurance, or grant, though made at the same time, and forming

Page 53 U. S. 268

a portion of it. The instrument before us, composed of what is popularly called the mortgage and relinquishment of dower, constitutes but one deed or conveyance executed by husband and wife for the purpose of conveying the fee vested in the husband and releasing the inchoate right of the wife. It was all written on the same paper or parchment for one purpose, the latter sentences connected with those which precede it by a copulative conjunction. It was all executed at the same time, and acknowledged by husband and wife at the time of its execution, and they have each signed that portion of the conveyance which purports to grant or release their several interests. The relative position of the signatures of the husband and wife, or the unnecessary duplication of either, is of little importance where the instrument, by apt and proper terms, clearly shows the intention of the parties that the husband should convey the fee and the wife join with him in the deed for the purpose of releasing her contingent estate of dower. In such cases, and especially where this form of assurance is in common use, the astutia of a court would be illy employed in criticizing the form of the conveyance in order that one of the parties may be enabled to escape from his covenants, and thus wrong and defraud the other.

Let us now examine whether the acknowledgment of the wife is sufficient, according to the statutes of Alabama, to operate as a conveyance or relinquishment of her right of dower.

The Act of Assembly of Alabama on this subject, Aik.Dig., 93, § 29, is as follows:

"No estate of a feme covert in any lands, tenements, or hereditaments lying and being in this territory shall pass by her deed or conveyance without a previous acknowledgement made by her on a private examination apart from her husband before one of the territorial judges or one of the justices of the county court that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband, and a certificate thereof, written on or under the said deed or conveyance, and signed by the officer before whom it was made, and every deed or conveyance so executed and acknowledged by a feme covert and certified as aforesaid shall release and bar her right of dower and be good and effectual to convey the lands, tenements, and hereditaments thereby intended to be conveyed."

One of the objections to the acknowledgment of Mrs. Hitchcock is that she acknowledges to have signed and sealed "the said indenture of mortgage," and not that part of it called the "relinquishment of dower." This objection, we think, is hypercritical. "Haeret in litera." It is founded on the assumption which we have just noticed that the several covenants signed

Page 53 U. S. 269

by the husband and wife do not constitute one assurance or deed of mortgage. The same criticism would annul the acknowledgment of the husband, which is "that he executed the foregoing indenture," whereas the deed signed by him is a deed poll, and not an indenture. Surely no court would declare his acknowledgment invalid for this slight misnomer. It would certainly be no great latitude of construction, even if they were separate and distinct instruments, to refer the acknowledgment of the wife to that one which contains her own grant or release, and which she has signed and sealed. Even in cases of doubtful construction, the rule of law is that the court should construe the instrument ut res magis valeat, and not annul it by such fanciful criticism.

It is objected also that this acknowledgment is not in the very words of the statute. In place of the words, "as her voluntary act and deed, freely," it substitutes the words, "freely and of her own accord."

That the words of the acknowledgment have the same meaning and are in substance the same with those used in the statute it needs no argument to demonstrate, and that such an acknowledgment is a sufficient compliance with the statute to give validity to the deed of the wife is not only consonant with reason, but, as the cases cited by counsel show, supported by very numerous authorities. The act requires a private examination of the wife to ascertain that she acts freely, and not by compulsion of her husband, but it prescribes no precise form of words to be used in the certificate, nor requires that it should contain all the synonyms used in the statute to express the meaning of the legislature. In other acts of the same legislature where a precise form of acknowledgment of certain deeds is prescribed, it is provided, that

"any certificate of probate or acknowledgment of any such deed shall be good and effectual if it contain the substance, whether it be in the form or not of that set forth in the first section of this act."

Clay's Dig. 153. The legislature have thus shown a laudable anxiety to hinder a construction of their statutes which would require a stringent adherence to a mere form of words without regard to their meaning or substance and make the validity of titles to depend on the verbal accuracy of careless scriveners.

We are therefore of opinion that the certificate of the acknowledgment of the complainant of the deed executed by her is valid and sufficient in law to bar her claim of dower in the mortgaged premises.

II. But even if this deed of mortgage were not a sufficient bar to the claim, we are of opinion that the deed of release executed

Page 53 U. S. 270

by the complainant on 8 February, 1840, is a complete bar and estoppel to the claim set up in her bill.

Henry Hitchcock died in August, 1839, having first made his will, in which he devises all his estate, real and personal, to the complainant trust to sell and dispose of the same and invest it for the use of herself and children, share and share alike. Under this devise, she entered and took possession of the estate of her husband and, in consideration of the sum of $150,000 paid to her by the trustees of the bank and of a release by them of all claim upon the other estate of the deceased, she executed, on 8 February, 1840, a deed of release of the mortgaged property containing the following recitals and covenants.

"This indenture, made &c., between Anne Hitchcock, widow and sole devisee of Henry Hitchcock, acting under and by virtue of the last will and testament of said Henry Hitchcock, duly proved &c., of the first part, and Joseph Cowperthwaite &c., of the second part, witnesseth, that the party of the first part, for and in consideration of the sum of $733,352 &c., hath remised, conveyed, and forever quitclaimed and doth remise &c., to the said parties of the second part all the estate, right, title, interest, use, property, claim, and demand whatsoever, at law as well as in equity, in possession as well as in reversion of, in, to, or out of all and singular, the following described premises, to-wit &c.:"

"To have and to hold all and singular the aforesaid lands, tenements, improvements, and appurtenances, unto the said parties of the second part, the survivors and survivor of them, and the heirs, executors, administrators, and assigns of said survivor to their own proper use, benefit, and behoof forever, so that neither the said party of the first part, her heirs or assigns, nor any person or persons whatsoever, in trust for them or her, or in her or their name or names, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or demand any right, title, interest or estate of, in, to, or out of all and singular the premises above described, and hereby released and conveyed, but therefrom and thereout are and shall be by these presents forever excluded and debarred."

By the law of Alabama, the widow is allowed one year after probate of the will to make her election, whether to take under it or not. The will of Henry Hitchcock was admitted to probate on 17 August, 1839, and on 14 August, 1840, the widow filed her election, renouncing all benefit under the will and electing to take her dower. This bill was filed on 29 April, 1847, nearly seven years afterwards.

She makes no offer in her bill to restore the sum of $150,000 paid to her or her agent or to surrender the release given to her by the trustees of the bank which was the consideration paid for

Page 53 U. S. 271

her release, but contends that she is remitted to her original rights by her last election, and is not estopped by her deed which was merely the execution of a power, and could not affect her personal right or bar her claim to dower in the land conveyed or released.

It is admitted that the mere equity of redemption of this property was worth nothing; on the contrary, the other property of the mortgagor would have been liable for a large portion of the bond which accompanied the mortgage. Yet it is contended that the widow may elect to take under this devise in the will; that under pretense and belief of such election, she may get her husband's estate released from a debt and receive a large consideration in money for a release of her title as "sole devisee," and afterwards change her election, defeat all the covenants of her own deed, and yet retain the whole consideration paid for it. It is not worthwhile to examine what acts of a widow amount to an election in pais to take under the will. It is clear she cannot take possession under the will and sell the title in fee conferred upon her by the devises in it, and then revoke her grant by changing her election within the year. The time given to the widow by the law to make her election is intended for her protection, and not that she shall use it as a weapon of offense to defraud others. Courts of equity do not exert their powers, even in favor of widows, to assist them in such a transaction. The deed executed by the complainant in 1840 is an estoppel, both in law and equity, against this claim of dower. By this deed she professes to convey as "widow," "sole devisee," and under the powers vested in her by the will. She releases all claim or demand in law or equity, in possession or expectancy,

"so that neither she nor her heirs can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or demand any right, title, interest, or estate in the premises."

It is hard to conceive how any conveyancer could devise language more comprehensive or legal phraseology more stringent to convey every possible estate of the grantor and operate as a perfect legal estoppel against all possible claim in any character whatever. If this had been a mere naked power of appointment or to make a conveyance of the title of the deceased not coupled with an interest, and the widow had intended merely to exercise such power without affecting her own right in the property, her deed should have been carefully drawn so as to show on its face an intention to save her own rights, if she did not intend to convey them. For it is a settled rule of construction that

"whoever conveys to a purchaser without restraining the operation of his conveyance shall be deemed to convey in every character which enabled him to give effect to his deed. "

Page 53 U. S. 272

Sugd. on Powers 82; Coxe v. Chamberlain, 4 Ves.Jr. 637.

This case is much stronger against the grantor, for her deed was worthless unless she had elected to take the devise under the will, and, having recited in her deed that she was "widow and sole devisee," she is thereby estopped from denying that she conveyed all rights held in either character, or, as between her and the grantees, ever asserting that she had not elected to take as sole devisee.

Being, therefore, of opinion that the complainant below is doubly estopped from setting up this claim of dower, it will be unnecessary to consider the third point of defense urged by appellant's counsel, as to the effect of the decree of foreclosure.

The decree of the circuit court is therefore

Reversed and the bill dismissed with costs.

Order

This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the Southern District of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this Court that the decree of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be, and the same is hereby, remanded to the said circuit court, with directions to dismiss the bill of complaint with costs.

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