A. and wife, residents of the State of New York, executed a
power of attorney to B. to sell lands in Minnesota Territory of
which A., the husband, was seized. The power was executed and
acknowledged by both parties, the wife undergoing such separate
examination as by the laws of New York makes valid the execution of
deeds by a feme covert.
At the time when this power of
attorney was given, there was no law of the territory authorizing
such an instrument to be executed by the wife or the attorney
Page 90 U. S. 138
to convey under it. B., professing to act for the two parties,
sold and conveyed a piece of the land, then worth $3,000, with
general warranty, to C. for that sum, and A. received the money.
The Legislature of Minnesota subsequently passed an act by which it
was enacted that
"All deeds of conveyance of any lands in the territory, whether
or hereafter made, under a joint power of
attorney from the husband and wife, shall be as binding and have
the same effect as if made by the original parties."
The husband and wife afterwards revoked the power. The husband
died leaving a large estate composed entirely of personalty, the
whole of which he gave to his wife. The wife now brought suit for
dower in the land sold by B. as attorney for her husband and
that the power of attorney was validated by
the curative act, which the court, adverting to the fact that the
husband had received the purchase money for the tract, and that it
had become part of his estate, and that the whole of it on his
death passed to the wife, declares had a strong natural equity at
its root, and accomplished that which a court of equity would have
failed to decree against the wife, only because it would be
prevented by the unbending law as to feme coverts
Mrs. Sarah Randall, whose husband, John Randall, had been seized
in fee during their marriage of a piece of land in Minnesota,
brought suit, her husband being now dead, to have dower in the
The case was thus:
In May, 1849, the said John Randall, being seized as above said
in fee of the land, he and his wife, then, as always before and
afterwards, resident in the State of New York, executed in the form
proper to pass a feme covert's
interest in lands in that
state, a power of attorney to a person in Minnesota, by which the
latter was authorized to sell and convey the land in question, as
also other tracts. The power was duly recorded in Minnesota. At the
time when this power was given it seemed that there was no mode
prescribed by statute in Minnesota by which a nonresident feme
could execute a power under seal to pass her interest
in real estate.
In January, 1855, there being still apparently no statute in
Minnesota of the sort just mentioned, the attorney, professing to
act in behalf of Randall and his wife, sold and
Page 90 U. S. 139
conveyed with general warranty the land, in consideration of
$3,000, to one Kreiger. The deed to Kreiger was in conformity to
the local law of Minnesota, and the sum for which he purchased the
land -- one apparently fair -- was paid to Randall, the
On the 24th of February, 1857, the Legislature of Minnesota,
then still a Territory of the United States, passed an act in these
words: [Footnote 1
"A husband and wife may convey by their lawful agent or attorney
any estate or interest in any lands, situate in this territory, and
deeds of conveyance of any such lands, whether
or hereafter made, under a joint power of
attorney from the husband and wife, shall be as binding and have
the same effect as if made and executed by the original
In May, 1859, Randall and his wife by an instrument duly
executed revoked the power of attorney made in 1849. Randall
himself soon afterwards died, leaving to his wife his entire
estate; the same consisting wholly of personalty, and being
estimated as worth between $100,000 and $200,000. She had already
received of it more than $50,000.
The value of the property now was $7,000, independently of
improvements put upon it after the conveyance.
The claim of the widow was resisted on several grounds, among
them that any defect in her acknowledgment had been remedied by the
curative act of 1857; that the purchase money having been paid to
her husband, and having passed to and been accepted by her, she was
estopped while still holding it to claim dower in addition; that
she had elected to take the provision made by her husband's will,
and which was inconsistent with the claim to dower now set up
But the only question considered by the court was the one
whether the case fell within the curative part of the above-quoted
act of 1857, the concluding portion which enacts that all deeds of
conveyance in the territory made prior to the passage of the act
under a joint power of attorney, from
Page 90 U. S. 140
the husband and wife, shall be as binding and have the same
effect as if made by the original party.
The court below (Dillon, J.), said:
"I am of opinion that the case falls within the curative or
remedial provisions of the Act of 1857, and that this act, having
been passed before the right to dower became consummated by the
death of the husband, is a valid exercise of legislative
"Until the death of the husband, the right to dower is inchoate
and contingent. It becomes consummate only upon that event. In my
opinion, the better view is that while the right remains inchoate,
it is, as respects the wife under, the absolute control of the
legislature, which may, by general enactments, change, abridge, or
even destroy it, as its judgment may dictate. [Footnote 2
] 'So,' says Wright, C.J., in Lucas
"the legislature may declare what acts of the wife shall amount
to a relinquishment of her right of dower, or that her deed shall
be effectual to bar the same."
Again, he says:
"In measuring her rights, we look to the law in force at the
time of the husband's death, for it is this event which ripens or
makes consummate the prior right which, so long as it rested upon
the marriage and seizure, was inchoate only. If there was no law in
force at that time giving her the right, then it is extinguished.
She cannot take under a law repealed prior to that time, and taking
a law then existing, she must take it with its restrictions and
"It was competent, therefore, for the legislature to say as
respects all inchoate rights of dower, as it did say by the Act of
1857, that deeds executed under a joint power of attorney from the
husband and wife 'shall be binding,' and if binding, the claim of
the wife here to dower is barred, for she joined in the power of
attorney under which the deed was made."
"Of the constitutionality of the enactment there remains no
question after the repeated decisions of the Supreme Court of the
United States. [Footnote
Judgment being entered on this view, the widow brought the case
here on appeal.
Page 90 U. S. 146
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
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.
Page 90 U. S. 147
Nor was the act forbidden by the Constitution of the United
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. [Footnote 4
Marriage is an institution founded upon mutual consent. That
consent is a contract, but it is one sui generis.
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 fulfill by one of the parties, as in
cases of permanent insanity, does not release the other from the
preexisting 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. [Footnote
By the common law, where there was no antenuptial 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 ecclesiae, ex assensu
and that which in the absence of the others the law
prescribed. The two former
Page 90 U. S. 148
were founded in contract. The latter was the creature of the
law. Dower ad ostium ecclesiae
and ex assensu
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 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 taken 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. [Footnote 7
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
Page 90 U. S. 149
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
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. [Footnote 9
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, and for doing which her husband was fully paid.
Page 90 U. S. 150
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
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 legislature thus did what right and justice
demanded, and the act strongly commends itself to the conscience
and approbation of the judicial mind.
Laws of Minnesota for 1857, p. 29.
Lucas v. Sawyer,
17 Ia. 517, 521.
2 Pet. 380; Watson v.
8 Pet. 88, and see
2 Scribner on
Dower 344-366; Cooley, Constitutional Limitations 373-378.
2 Pet. 380; Watson
8 Pet. 110.
Story's Conflict of Laws § 109.
2 Scribner on Dower, pp. 5-8; Lawrence v. Miller,
Sandford's Supreme Court 516; Same Case,
2 Comstock 245;
Noel and Wife v. Ewing,
9 Ind. 37; Lucas v.
17 Ia. 517; White v. White,
5 Barb. 474;
Vartie v. Underwood and Wife,
Sedgwick on Statutory and Constitutional Law 144, note; Cooley
on Constitutional Limitations 376.
8 Pet. 100 [argument of counsel -- omitted].
See also Calder v.
3 Dall. 388; Wilkinson
2 Pet. 627; Livingston
7 Pet. 469; Kearney v.
15 How. 495; Chestnut v. Shane,
Ohio 599; Goshorn v. Purcell,
11 Ohio State 641;
Lessee of Watson v. Bailey,
1 Binney 477; Gibson v.
13 Mich. 215; Foster v. Essex Bank,
245; State v. Newark,
3 Dutcher 197.
Cooley's Constitutional Limitations 378.