The marriage must be a legal one; though, if voidable and not void, she will have her dower unless it is dissolved in his lifetime. 14 Miss. 308 ; Coke, Litt. 33 a; Lambert, Dow. 14; 1 Cruise, Dig. 164. As to the le gality of marriages, see Bishop, Marr. & Div.
The husband must have been seised in the premises of an estate of inheritance at some time during the coverture. It may not be an actual seism : a seisin in law with the right of immediate corporeal seisin is sufficient. 22 Pick. Mass. 283 ; 7 Mass. 253 ; 39 Me. 25; 1 Paige, Ch. N. Y. 635; 2 Serg. & R. Penn. 554; 1 Cruise, Dig. 166. It is not necessary that the seisin of the husband should be a •rightful one. The widow of a disseisor may have dower against all who have not the rightful seisin. Park, Dow. 37 ; 4 Dane, Abr. 668.
So, although the estate is a defeasible one, provided it is one of inheritance, she may claim her dower until it is defeated. Coke, Litt. 241 ; 3 Heist. N. J. 241 ; 10 Coke, 95 ; Seymour's case ; Lambert, Dow. 19.
The seisin is not required to remain in the husband any particular length of time. It is sufficient if he is seised but an instant to his own benefit and use, 11 Rich. Eq. So. C. 417 ; 14 Me. 290 ; 37 id. 508 ; 2 Blackstone, Comm. 132 ; but a mere instantaneous seisin for some other purpose than proprietorship will not give the wife dower. 14 Me. 290; 4 Miss. 369 ; 1 Johns. Cas. N. Y. 95 ; 27 Ala. N. s. 578 ; 15 Vt. 39 ; 2 Gill & J. Md. 318; 6 Metc. Mass. 475 ; 1 Atk. Ch. 442.
Where he purchases land and gives a mort gage at the same time to secure the purchase.. money, such incumbrance takes precedence of his wife's dower. 15 Johns. N. Y. 458; 12 Serg. & R. Penn. 18 ; 4 Mass. 566 ; 5 N. H. 479 ; 10 id. 500 ; 7 Heist. N. J. 52 ; 1 Bay, So. C. 312 ; 37 Me. 11; 2 Hill, Ch. So. C. 260; 3 Cush. Mass. 551.
For the character of the seisin requisite to give dower in equitable estates, see 1 Wash burn, Real Prop. 179.
The death of the husband. 1 Cruise, 168. What was known as civil death in land did not give the wife right of dower. 2 Crabb, Real Prop. 130. Imprisonment for life is declared civil death in some of the states. Mo. Rev. Stat. (1855) 642.
S. How dower may be prevented or defeated.
At common law, alienage on the part of the husband or wife prevented dower from at taching. 2 Blackstone, Comm. 131 ; 1 Cow. N. Y. 89 ; 16 Wend. N. Y. 617 ; 2 Mo. 32. This disability is partially done away with in England, 7 & 8 Vict. c. 66, and is almost, wholly abolished in the United States.
It is well established that the wife's dower is defeated whenever the seisin of her hus band is defeated by a paramount title. Coke, Litt. 240 b ; 4 Kent, Comm. 48.
The foreclosure of a mortgage given by the husband before marriage, or by the wife and husband after marriage, will defeat her right of dower. 15 Johns. N. Y. 458; 4 Edw. Ch. N. Y. 678 ; 12 Serg. & R. Penn. 18 ; 1 Ind.
527; 19 Miss. 164; 2 Rob. Va. 384 ; 8 Blackf. lnd. 174 ; 4 Harr. Del. 111. Likeforce would be given to a vendor's lien or mortgage for the purchase-money, or to a judgment lien outstanding at the time of marriage.
Her right to dower in the estate which she has joined with her husband in mortgaging is good against every one but the mortgagee. 3 Miss. 692 ; 18 Ohio St. 567 ; 14 Pick. Mass. 98 ; 1 Mete. Mass. 390 ; 5 N. H. 479 ; 29 id. 564; 37 Me. 509. The same is true in regard to an estate mortgaged by her husband before coverture. 3 Pick. Mass. 475 ; 5 id. 146 ; 14 id. 98. In neither case would the husband have the right to cut off her claim for dower by a release to the mortgagee, or an assign ment of his equity of redemption. 5 Johns. Ch. N. Y. 452, 482 ; 17 Mass. 564 ; 2 Pick. Mass. 517 ; 5 id. 146 ; 14 id. 98 ; 2 Hill, Ch. So. C. 252 ; 8 Humphr. Tenn. 713 ; 1 Rand. Va. 344 ; 34 Me. 50 ; 2 Blackf. Ind. 262 ; 2 Mist. N. J. 392. As to a purchase and mort pge for the purchase-money before marriage, in which the husband releases the equity of redemption after marriage, see 6 Cow. N. Y. 9. An agreement on the part of the hus band to convey before dower attaches, if en forced, will extinguish her claim. 4 Kent, Comm. 50;. 4 Hen. & M. Va. 376.
Dower will not be defeated by the deter mination of the estate by natural limitation : as, if the tenant in fee dies without heirs, or the tenant in tail. 8 Coke, 34 ; Park, Dow. 82, 157 ; 4 Kent, Comm. 49 ; 12 B. Monr. Ky. 73.