Dower. The doctrines of the common law, on the subject of dower,
although since altered by an act of assembly of Maryland, were
still the law of Maryland when the United States assumed
jurisdiction over the District of Columbia, and the Act of Congress
of February 27, 1801, which provides for its government, declares
that the laws of Maryland as they then existed should continue and
be in force in that part of the District which was ceded by that
state.
According to the principles of the common law, a widow was not
dowable in her husband's equity of redemption, and if a man
mortgages in fee before marriage and dies without redeeming the
mortgage, his widow is not entitled to dower.
Mortgages were made during the coverture, but the mortgage deeds
were acknowledged by the wife upon privy examination, and these
acknowledgments, under the Acts of Assembly of Maryland of 1715,
ch. 47, and 1766, ch. 14, bar the right of dower in the lots thus
conveyed to the mortgagee. The legal estate passed to the
mortgagee, and the husband retained nothing but the equity of
redemption, and as the wife had no right of dower in this equitable
interest, a subsequent deed, executed by the husband, conveyed the
whole of his interest in the estate and was a bar to the claim of
dower. It was not necessary for the wife to join in such a deed, as
she had no right of dower in the equity of redemption, which was
conveyed by the deed.
The plaintiff in error brought an action claiming to be endowed
out of certain lots, with the improvements on them, being No. 16
and No. 17 in square 728 in the City of Washington, and relied on
the following circumstances as giving her the right thereto.
On 24 August, 1804, George Walker and William Turnicliffe
conveyed in fee simple to Pontius D. Stelle lots 16 and 17 in
square 728 in the City of Washington. And on 25 August, 1804,
Pontius D. Stelle reconveyed these lots to William Turnicliffe by
way of mortgage to secure the payment of the purchase money, but
his wife did not relinquish her dower.
On 14 November, 1808, Pontius D. Stelle executed to Peter Miller
another deed of bargain and sale in fee simple of lot 18 in square
728, and Beulah Stelle, his wife, joined with him in the
acknowledgment and relinquished her dower.
On 1 March, 1810, Pontius D. Stelle conveyed the
Page 37 U. S. 202
same lots to Peter Miller in fee simple by way of mortgage, and
Beulah Stelle, the demandant, relinquished her dower in them.
On 28 January, 1811, Pontius D. Stelle executed another deed in
fee simple to Peter Miller by which, after reciting that he had, on
25 August, 1804, mortgaged lots 16 and 17 to William Turnicliffe to
secure the payment of four thousand dollars, the balance of which
had been or was secured to be paid to Turnicliffe by Miller, "and
from which the said Pontius D. Stelle is wholly released and
exonerated;" that Miller had advanced to him (Stelle) several large
sums of money for securing the payment of which he (Stelle) had
conveyed to Miller lot 18 in square 728, with a deed of defeasance
from Miller to Stelle, which sums of money "Stelle having failed to
pay to the said Miller, the said conveyance of lot numbered 18 to
the said Miller hath become absolute and unconditional," and that
Stelle is desirous of "more fully conveying and assuring the above
described lots of ground to the said Peter Miller," and for the
consideration of eight hundred and ninety-two dollars and
ninety-eight cents, he proceeded to convey, by bargain and sale to
the said Peter Miller, his heirs and assigns, the said lots 16, 17,
and 18, "and all the right, title, interest, property, claim, and
demand, whether in law or equity," which he had in them, with
covenants of general warranty ("except the liens above-mentioned")
and for further assurances. This deed has no release of dower.
Afterward Pontius D. Stelle left the possession of the said
lots, and they were sold under a decree of the Court of Chancery of
Washington by Zachariah Walker, trustee, and were purchased by the
defendant, and the buildings on lot 16 were erected after the deed
to Peter Miller in 1811, and not by P. D. Stelle.
The circuit court instructed the jury the plaintiff could not
recover, and a verdict and judgment were rendered for the
defendant, who thereupon prosecuted this writ of error.
Page 37 U. S. 203
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This is an action of dower, and was brought by the plaintiff in
error against the defendant in the Circuit Court for Washington
County in the District of Columbia to recover her dower in lots No.
16, 17, 18, and 19 in square No. 728 in the City of Washington. At
the trial of the case, the circuit court instructed the jury that
the demandant was not entitled to recover, to which instruction no
exception was taken, and the verdict and judgment being for the
defendant, the case has been brought here by the demandant by writ
of error.
Page 37 U. S. 204
The claim for dower in lot No. 19 seems to have been abandoned,
as no evidence in relation to it is contained in the record. As
respects the other three lots, it appears that Pontius D. Stelle
was seized of them in fee during the coverture of the demandant,
and being so seized, by deeds duly executed and recorded, mortgaged
them in fee to a certain Peter Miller. The deeds were acknowledged
by the demandant on privy examination, according to the act of
assembly of Maryland which was in force when Congress assumed
jurisdiction over the District of Columbia.
Lots No. 16 and 17 had been encumbered by Stelle by a previous
mortgage, to a certain William Turnicliffe, and after these several
mortgages and been made, Stelle executed a deed to Miller dated
January 28, 1811, duly acknowledged and recorded, in which, after
reciting that he had mortgaged lots No. 16 and 17, to Turnicliffe
to secure the payment of four thousand dollars, the balance of
which had been paid by Miller, and from which the said Stelle was
wholly released and exonerated, and reciting also that Miller had
advanced to Stelle several large sums of money, to secure which
Stelle had conveyed to him lot No. 18, with a deed of defeasance
from Miller to Stelle, which sums of money the said Stelle having
failed to pay, the conveyance of this lot had become absolute and
unconditional, and that the said Stelle was desirous of more fully
conveying and assuring these lots to Miller, he, the said Stelle,
in consideration of the premises and for and in consideration of
the sum of eight hundred and ninety-two dollars and ninety-eight
cents paid him by the said Miller, the receipt of which he thereby
acknowledged, did "give, grant, bargain, sell, alien, release, and
confirm" these three lots to the said Peter Miller, his heirs and
assigns. The deed contained a covenant of general warranty,
"excepting the liens beforementioned." The demandant did not join
in nor acknowledge this deed. Stelle died in 1828, and was out of
possession of these lots for some time before his death. The
defendant, Carroll, claims under Peter Miller.
The case has been fully argued, and many decisions in different
state courts have been cited and relied on in the argument. It is,
however, unnecessary to review and compare them, because the
question must depend on the laws of Maryland as they stood at the
time that Congress assumed jurisdiction over the District of
Columbia, and the decisions referred to in the argument, although
made by tribunals entitled to high respect, yet cannot be received
as evidence
Page 37 U. S. 205
of the law, in the case before us, since it is well known that
in the states where these decisions have been made, the rules of
the common law in relation to dower have been modified by a course
of judicial decision, and the strictness of the rule which excluded
the widow from dower in an equitable interest has been in some
degree relaxed. But the doctrines of the common law upon this
subject (although since altered by act of assembly) were still the
law of Maryland when the United States assumed jurisdiction over
this district, and the Act of Congress of February 27, 1801, which
provides for its government, declares that the laws of Maryland as
they then existed should continue and be in force in that part of
the District which was ceded by that state.
It is not necessary to refer to adjudged cases for the purpose
of proving that according to the principles of the common law, a
widow is not dowable in her husband's equity of redemption, and if
a man mortgages in fee before marriage and dies without redeeming
the mortgage, his widow is not entitled to dower. In this case, the
mortgages were made during the coverture, but the mortgage deeds
were acknowledged by the wife upon privy examinations, and these
acknowledgments, under the Acts of Assembly of Maryland of 1715,
ch. 47, and 1766, ch. 14, which are in force in this District,
debarred her of the right of dower in the lots thus conveyed to the
mortgagee. The legal estate passed to the mortgagee, and the
husband retained nothing but the equity of redemption, and as his
wife had no right of dower in this equitable interest, the deed of
Stelle to Miller, of January 28, 1811, above-mentioned, conveyed to
Miller the whole interest which had remained in Stelle. It was
unnecessary for the wife to join in or to acknowledge this deed,
for as she had no right of dower in the equity of redemption, she
had no interest to relinquish when her husband conveyed it to
Miller.
The recitals hereinbefore mentioned in the deed of January 28,
1811, have been much relied on in the argument for the plaintiff in
error, and it is insisted that, according to the facts there
stated, the mortgage to Turnicliffe had been paid off by Miller,
and that as it does not appear in the record that it had been
assigned to Miller, the payments made by him, as recited in the
deed above-mentioned, were a satisfaction of the mortgage, and
restored to Stelle the legal estate, and consequently revived the
right of dower in his wife in lots No. 16 and 17, which had been
mortgaged to Turnicliffe. But it must be remembered that Miller
held a mortgage to himself
Page 37 U. S. 206
for these lots junior to that of Turnicliffe, and that the
payments made by him to discharge a prior encumbrance would not
enure to the benefit of Stelle, but that Miller had a right to hold
on to the legal estate conveyed to him by his mortgage deed to
secure the payments he had made to Turnicliffe, and Stelle was not
entitled to be restored to his legal estate in these lands until
the payments to Turnicliffe were satisfied, as well as the money
due to Miller on the mortgage to himself. Besides, if these
payments to Miller could be regarded as an extinguishment of the
encumbrance created by the mortgage to Turnicliffe, yet the
mortgage of the same lots to Miller was outstanding and
unsatisfied. The interest of Stelle, therefore, even in that case
could be nothing more than an equity of redemption, and the
satisfaction of Turnicliffe's mortgage by Stelle himself would not
have restored to the demandant the right of dower, of which she had
debarred herself by acknowledging the deeds to Miller hereinbefore
mentioned. The conveyance of the equity of redemption to Miller for
a valuable consideration united in him the entire legal and
equitable interests, and this conveyance cannot, upon any principle
of law or justice, give a right of dower in these lots to the wife
of Stelle.
We think the instruction given by the circuit court was right,
and the judgment must therefore be
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel. On consideration whereof it is now here adjudged and
ordered by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs.
