Cook v. Walker , 70 Me. 232 ( 1879 )

Daneorth, J.

The plaintiff in her writ claims dower in one undivided half of a certain lot of land therein described. That the interest of one of the tenants in commou in land so held is liable to dower is unquestioned. Such a tenancy does not affect the right to dower though it may so far control the assignment as to require it to be set out as an undivided interest in the whole lot. Blossom v. Blossom, 9 Allen, 254.

Though in a process issuing from the probate court under the provisions of R. S., c. 65, § 19, the husband’s interest may first be set off, and then the dower assigned by metes and bounds, there is no such provision relating to actions for the recovery of dower. French v. Lord, 69 Maine, 537. Still whatever may he the final result as to the method of setting out the dower the plaintiff is entitled to her judgment therefor if she maintains her right.

This judgment naust be such as to give her her interests in the estate of her former husband and not interfere with the rights of the co-tenant. For this purpose the interests of the different tenants are separate and distinct, as much so as if they owned in severalty. The widow obtains her title from her husband, and must therefore take her portion from his estate alone. In this respect the tenant owning the part .in which the widow is pot entitled to dower is under no legal obligation to surrender any portion of his share, nor has he any right to, or control over the other share. If upon demand he should set out dower in that part owned by the other tenant, it would not be binding upon him, nor would he be concluded by a judgment to which he was not a party. The tenant. of the husband’s interests can alone set out the dower, and therefore the demand must be upon, and the action be against him; and he must be the tenant of the freehold. R. S., c. 103, §§ 17, 21.

Applying these principles to the case at bar and the solution is not difficult.

It is alleged in the writ that the husband was, during the coverture and at the time of the decree of divorce, an owner of one undivided half of the real estate described; that at the time of the demand and at the date of the writ, the defendant was the tenant of the “freehold of said'real estate.” The statement of facts shows then, that the allegation as to the husband’s title is true; but while it shows that the defendant was at the time mentioned a tenant of the freehold of an undivided half of the estate, it shows also that it was not the same half of which the husband had been the owner during coverture, but in fact the other half. He derives his title to this half from the husband, but by a conveyance previous to the marriage. If therefore the undivided half in which dower is claimed is the same as that of which the defendant was the tenant of the freehold at the date of the writ, the action must fail for want of seizin in the husband while the marriage continued. If on the other hand dower is claimed in that half of which the husband was so seized, then, the action must fail for the demand was made upon, and the action brought against the wrong person. The facts show that the husband remained the tenant of the freehold up to the date of the writ, so that the defendant had no such interest in that part as would enable him to represent the husband’s interest in this suit.

But the case further finds that the defendant had at the time a bond from the husband conditioned for the conveyance of his half upon certain terms which do not appear to have been complied with; and this bond is apparently relied upon as conveying such an interest in that half as will authorize the maintenance of this action. This, however, cannot be. The bond conveys no interest whatever in the land, nor does it purport to convey any. It is a personal obligation, in no respect touching the realty. If is not a bond of defeasance so connected with a deed of conveyance as to constitute a mortgage either in law or in equity, but simply a personal obligation to convey upon the fulfillment of certain conditions. It does not even give the right of possession. Shaw v. Wise, 10 Maine, 113. Bailey v. Myrick, 50 Maine, 178. Newhall v. Union M. F. Ins. Co., 52 Maine, 180.

The defendant, therefore, in no way represented the undivided half in which the plaintiff is entitled to dower at the time the action was commenced. He should perhaps have availed himself of this defense by a plea in abatement, but the necessity of that is waived by the agreed statement in which it is provided ‘ “that the issue joined shall be sufficient for the raising and deciding of all questions of law which may arise in the case before the full court,” even if any pleading were necessary under an agreed statement presenting the full case.

Plaintiff nonsuit.

Appleton, C. J., Barrows, Yir&in, Peters and Symonds, JJ., concurred.