How dower may be prevented or defeated. At common law, ablenage on the part of the husband or wife prevented dower from at taching; 2 Bla. Cora. 131; Priest v. Cum mings, 16 Wend. (N. Y.) 617; Stokes v. O'Fallon, 2 Mo. 32. This disability is par tially done away with in England, 7 & 8 Vict. c. 66, and is almost wholly abolished in the United States. See ALIEN.
It is well established that the wife's dower is defeated whenever the seisin of her hus band is defeated by a paramount title; Co. Litt. 240 b ; 4 Kent 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; Stow v. Tifft, 15 Johns. (N. Y.) 458, 8 Am. Dec. 266; Reed v. Morrison, 12 S. & R. (Pa.) 18; Nottingham v. Calvert, 1 Ind. 527; Bisland v. Hewett, 11 Smedes & M. (Miss.) 164; Wilson v. Davisson, 2 Rob. (Va.) 384; Ingram v. Morris, 4 Harr. (Del.) 111; Shope v. Schaffner, 140 Ill. 470, 30 N. E. 872; Boorum v. Tucker, 51 N. J. Eq. 135, 26 Atl. 456. And in Pennsylvania, whether the wife joined or not. Like force would be given to a vendor's lien or mortgage for the purchase-money, or to a judgment lien out standing at the time of marriage.
Her right to dower in the estate which she has joined with her husband in mort gaging is good against every one but the mortgagee; Whitehead v. Middleton, 2 How. (Miss.) 692; Eaton v. Simonds, 14 Pick. (Mass.) 98; Hastings v. Stevens, 29 N. H. 564; Young v. Tarbell, 37 Me. 509. The same is true in regard 'to an estate mortgag ed by her husband before coverture; Eaton v. Simonds, 14 Pick. (Mass.) 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 assignment of his eq uity of redemption; Titus v. Neilson, 5 Johns. Ch. (N. Y.) 452; Swaine v. Perin, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318 ; Eaton v. Simonds, 14 Pick. (Mass.) 98; McIver v. Cherry, 8 Humphr. (Tenn.) 713; Heth v. Cocke, 1 Rand. (Va.) 344 ; Simonton v. Gray, 34 Me. 50; Harrison v. Eldridge, 7 N. J. L. 392. As to a purchase and mortgage for the purchase-money before marriage, in which the husband releases the equity of re demption after marriage, see Jackson v. Dewitt, 6 Cow. (N. Y.) 316.
An agreement on the part of the husband to convey before dower attaches, if enforced, will extinguish her claim; Adkins v. Hohmes, 2 Ind. 197; Bowie v. Berry, 3 Md. Ch. 359.
Dower will not be defeated by the deter mination of the estate by natural limltation; as, if the tenant in fee die without heirs, or the tenant in tail; 8 Co. 34; 4 Kent 49 ;
Northcut v. Whipp, 12 B. "Monr. (Ky.) 73. Whether it will be defeated by a conditional limitation by way of executory devise or shifting use, is not yet fully settled ; Co. Litt. 241a, Butler's note 170; Sugd. Pow. 333; 3 B. & P. 652. But it seems that the weight of American authority is in favor of sustain ing dower out of such estates; Evans v. Ev ans, 9 Pa. 190 ; Milledge v. Lamar, 4 Desaus. (S. C.) 617. See 1 Washb. R. P. 216.
Dower will be defeated by operation of a collateral limitation : as, in the case of an estate to a man and his heirs so long as a tree shall stand, and the tree dies; 3 Prest. Abstr. 373; 4 Kent 49.
In some states it will be defeated by a sale on execution for the debts of the husband ; Gardiner v. Miles, 5 Gill (Md.) 94; London v. London, 1 Humphr. (Tenn.) 1; Kennerly v. Ins. Co., 11 Mo. 204; Den v. Frew, 14 N. C. 3, 22 Am. Dec. 708; but see Thomas v. Thom as, 73 Ia. 657, 35 N. W. 693. In Missouri it is defeated by a sale in partition ; Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262. See Jackson v. Edwards, 22 Wend. (N. Y.) 498; Van Gelder v. Post, 2 Edw. Ch. (N. Y.) 577. See 25 Alb. L. J. 387.
It is defeated by a sale for the payment of taxes ; Jones v. Devore, 8 Ohio St. 430.
It is also defeated by exercise of the right of eminent domain during the life of the husband. Nor has the widow the right of compensation for such taking. The same is true of land dedicated by her husband to public use ; Gwynne v. City of Cincinnati, 3 Ohio 24, 17 Am. Dec. 576.
How dower may be barred. A divorce from the bonds of matrimony was at com mon law a bar to dower ; 2 Bla. Corn. 130; Wait v. Wait, 4 Barb. (N. Y.) 192; Hinson v. Bush, 84 Ala. 368, 4 South. 410 ; Pullen v. Pullen, 52 N. J. Eq. 9, 28 Atl. 719'; but the woman's right to dower, or something equivalent to it, is reserved by statutes in most of the states, if she be the innocent party ; Forrest v. Forrest, 6 Duer (N. Y.) 102. A .judgment of divorce in another state, for cause other than adultery, which has the effect to deprive the wife of dower in the state where rendered, will not have such effect in New York ; the United States con stitution makes a judgment in another state conclusive as to the fact of divorce, but gives no extra-territorial effect on land of the husband ; Van Cleaf v. Burns, 133 N. Y. 540, 30 N. E. 661, 15 L. R. A. 542.