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, ยง
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.
