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Baker v. Chase

6 Hill & Den. 482 Court N.Y. Sup. Ct. English

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Majority

p. 482
Baker vs. Chase.

Headnote

In ejectment for dower, it appeared that the husband, a few days before his marriage with the plaintiff, conveyed the lands m question to one of his children by a former marriage, as an advancement, with the intention of preventing the plaintiff from acquiring a right of dower, and that she knew nothing of the conveyance until after the marriage had taken place. Held, that the conveyance was nevertheless valid, and that the action could not be maintained.
Semble, that the widow would not be entitled to relief in such case even in equity.
Ejectment for dower, tried before Willard, C. Judge, at the Washington circuit in June, 1843. On the 7th of December, 1835, Royal Chase, being then a widower, aad seised of real estate of the value of seven or eight thousand dollars, conveyed the premises in question, which were of the value of nine hundred dollars, to his son Peter, no pecuniary consideration being paid. Royal Chase was then 65 or 70 years old. Two days after the deed was executed and delivered, he married the plaintiff, and died in 1839. In 1840, Peter Chase conveyed the land to the defendant and Benajah Barker, Jun. The judge
p. 483
charged the jury that if the deed from Royal Chase to his son Peter was given for the purpose of preventing a right of dower from attaching, on the marriage then about to be consummated between the plaintiff and Royal Chase, and the plaintiff knew nothing of the deed at the time of the marriage, it would be deemed a fraud upon her rights, and she would be entitled to recover. The judge refused to charge that though a fraud was intended by Royal Chase, yet if Peter did not know or participate in it, he should be protected. The jury found a verdict for the plaintiff; and the defendant now moved for a new,trial on a bill of exceptions.
J. Pierson, for the defendant,
cited Park On Dower, 231, 236; Atherley On Marr. Sett. 323, 329.
H. Z. Hayner, for the plaintiff,
cited 3 Johns. Ch.Rep. 501 , 508 ; 5 id. 482; 6 Cowen, 67; 18 Johns. 426 ; 2 Vern. 436; 1 Roper On Husband Wife, 356.

The plaintiff’s case, at the most, only amounts to this: Royal Chase conveyed a part of his real estate, by way of advancement, to his son Peter, with the intention of defeating the right to dower which would otherwise vest in the plaintiff, in case the contemplated marriage should take place, and she should survive her husband; and the plaintiff married without knowing of the conveyance. What a court of equity might say about such a fraud as that, 1 will not undertake to determine; but notwithstanding the case of Swaine v. Perine, ( 5 Johns. Ch. 482 ,) I think the court would say that there was no fraud in the matter. But however that may be* we have not been referred to any case, nor have I met with any, where a court of law has undertaken to set aside a deed upon this ground. The husband was not seised at any time during the coverture; and if the plaintiff can succeed any where, she cannot in a court of law.

New trial granted.

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