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9 Mass. 218

Catlin v. Ware

Massachusetts Supreme Judicial Court

Decided September 15, 1812

Massachusetts Supreme Judicial Court · decided 1812-09-15

<p>Where a deed is executed by husband and wife, an acknowledgment by the husband is sufficient to entitle it to be registered.</p> <p>Where, to a conveyance of land by a husband, the wife affixes her signature and seal, her name not being otherwise mentioned in the deed, it was held that she had not thereby barred herself of her right to dower.</p> <p>In dower against the alienee of her husband, a widow is to recover her dower, as the tenements were at the time of the alienation by the husband; but against the heir, she is to have dower in improvements made by him after the descent.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1812-09-15

How this case has been cited

Cited by 32 later decisions — most recently April 1931 · most notably Smith v. Handy (1847), Gore v. Brazier (1807)

31 state decisions — followed in 15 states

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Curia.

¶1Two objections, made to the deed read in evidence at the trial of this cause, have been replied to by the counsel for the tenant.

¶2As to the second — the want of an acknowledgment by the wife — we think an acknowledgment unnecessary in the case. One party to a deed acknowledging it gives notoriety to it, and that is the whole that is necessary, (a) Though a deed be acknowledged and recorded, yet, on the issue of non est factum, the execution of the deed is still to be proved, as if it had not been acknowledged, (b) Neither was an acknowledgment by the wife necessary in order to *201make the deed binding on her. She must know her own acts, and is bound by such, as the law authorizes her to execute.

¶3The other objection to this deed has much more weight in it, and is indeed fatal to the defence of the action. A deed cannot bind a party sealing it, unless it contains words expressive of an intention to be bound. In this case, whatever may be conceived of the intention of the demandant in signing and sealing the deed, there are no words implying her intention to release her claim of dower in the lands * conveyed, which must have been, to give it that operation. It was merely the deed of the husband, and the wife is not by it barred of her right to dower, (c)

¶4As to the question referred to us respecting the increased value of the lands, in which the demandant claims her dower, as they have arisen from the labors and expense of the purchaser, it is our opinion that she is entitled to her third part of the land, in the condition it was in at the time of the alienation by her husband. Had the heir of the husband been the tenant, and the improvements been made by him after the land descended, it would have been otherwise ; for it was his folly not to assign the dower to the widow, before he made the improvements, (d)

¶5 Judgment on the verdict.

¶6{a) [In Salkeld, there is a loose note of a case, (Taylor vs. Jones, 1 Salk. 389,) referred to in Ridge vs. Tyler, where it is said, that, if there are two parties to a deed, and one acknowledge it before a judge, it binds the other And that it was the practice, if a man lived in New England, and would pass lands in England, to join a mere nominal party xvith him in the deed, who might acknoxvledge it, and it would bind. There is another loose note of a case at Nisi Prius, before Glyn, C. J., in Style, p. 462, (Thurle vs. Madison,) xvhere he is reported to have said that, if divers persons seal a deed, and but one of them acknoxvledge it, and it is thereupon enrolled, that is a good enrolment. But, in Dudley vs. Sumner, (5 Mass. Rep. 438,) Sedgwick, J., seems to have thought, that in the case of a feme covert joining with her husband to convey her interest in real estate, it xvas necessary that she should acknowledge the deed. — And see 2 Co. Rep. 57, b, 77, b. —- Co. Lit. 225. — 2 Inst. 674. — 6 Mod. 263 — In London and other places, where, by custom or the lex loci, the wife, by joining with her husband in a deed, may pass her lands, or bar herself of doxver, an acknoxvledgment and separate examination of the wife seems to be necessary. — Com. Dig. Cust. Lond. N. 3, Baron and Feme, G. 4. — Park, on Dower, 195. — Probably the usage or law in this commonwealth, and many of the United States, arose from this customary law in England. In most of the other states, a separate examination, as xvell as acknowledgment of the wife, is required. — Ed.]

¶7 [Inhabitants of Worcester vs. Eaton, 11 Mass. Rep 379. —13 Mass. Rep. 371.— Ed.]

¶8 [Lufkin vs. Curtis, 13 Mass. Rep. 223. — Leavitt vs. Lamprey, 13 Pick. 382. — Powell & Ux. vs. Monson Brimfield Manufacturing Company, 3 Mason, 349. — Ed.]

¶9 [Vide, ante, Ayer vs. Sping, p. 8. — Ed.]
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