Ford v. Erskine , 45 Me. 484 ( 1858 )

The opinion of the Court was drawn up by

Appleton J.

By R. S., c. 44, § 2, a demand must be made upon the tenant in possession, to assign dower, before an action can be maintained for its recovery. It is the duty of the tenant, thereupon, to assign dower in the premises in which it is demanded, if the demandant be thereto entitled. To enable him to do this, the demand must contain a description of the premises. But all that is required, says Wilde, J., in Atwood v. Atwood, 22 Pick. 283, “is that the description of the land should be such as to give notice to the tenant to what land the demand referred.”

The demand in the present case is most vague and indefinite. It embraces all lands of which the husband was seized during coverture, and of which the tenant is now seized, without describing what or where those lands may be. The tenant, to know of what lands dower was demanded, must first ascertain when coverture commenced and ended, and whether his title to any lands of which he is in possession accrued between those dates. It is, substantially, a general demand of dower in all lands of which she is dowable. “ A demand of dower in all lands of which the husband was seized during coverture,” says Wilcox, J., in Fulton v. Fulton, 19 N. H., 168, “ or of all lands in which she had a right to dower, would not probably be sufficient.”

Neither is the indefiniteness of the demand aided by reference to the deed given by the husband to James Thomas, dated Oct. 19, 1819. Either the premises, in which dower is demanded, should be described, or a reference should be made to the deeds under or through which the tenant derives title. In Baker v. Baker, 4 Greenl. 68, the demand on the tenant was of dower in land purchased of the husband, and it was held sufficient, because the tenant could not but know to what the demand referred. In Atwood v. Atwood, 22 Pick. 283, the demand was of dower in land conveyed in common to the husband of the widow and to the tenant. As the tenant was a party to the conveyance, he could not be regarded as ignorant of what was thereby conveyed. So, if the demandant claim dower in the whole of certain premises, when she is legally entitled to dower in but a moiety, she may recover according to her title. Hamblin v. Bank of Cumberland, 19 Maine, 66. But, in the present case, no description of the premises, in which dower is demanded, is given, nor is any reference made to the deed under which the tenant derives title. The demand refers to a deed to a stranger, executed nearly forty years ago. The contents of that deed are not disclosed. It does not appear that it was ever recorded, or, if recorded, that the tenant claims title under it. A reference to a deed to a third person forty years ago, and not recorded, is no notice to the tenant in possession of what was thereby conveyed, and gives no such description of any premises that he can assign dower therein.

As the demand, neither in terms nor by reference, contains any sufficient description of the premises in which dower is claimed, the demandant must become nonsuit.

Plaintiff nonsuit.

Tenney, C. J., Rice, Hathaway, May, and Davis, J. J., concurred.