Hill v. Boland

Stockbridge, J., delivered the opinion of the Court. Can a married woman by contract or deed relinquish her right of dower, so that real estate belonging to her husband can be conveyed by him without her joinder in the deed? That is the sole question which is presented by the record in this case. The question is raised by a bill for the specific enforcement of a contract of sale of a ground rent of $42 claimed by Mr. Boland to be held by him free from any right whatever of his wife, Margaret A. Boland, to dower therein.

Mr. and Mrs. Boland had not for sometime been living together on the best of terms; and on the 1st February, 1912, they entered into an agreement executed with all the formality necessary for a conveyance of real estate, which was duly recorded. By the terms of this they agreed to live separate and apart; and in consideration of the sum of $4,200 cash paid by Mr. Boland to his wife, she “expressly releases, waives, surrenders and assigns to the party of the first part (Mr. Boland) his heirs, personal representatives, legatees, devisees and assigns all her right, claim or title to participate in any way in the enjoyment of the real or personal estate of which the party of the first part may be possessed at his decease, or to obtain or receive any dower or widow’s rights therein. And the party of the second part hereby covenants and agrees that at any time after the execution of these ¹¹⁵ presents she will at the request and expense of the party of the first part execute, acknowledge and deliver to the party of the first part or his grantee or grantees any proper deed or conveyance, so as to bar the dower or other marital rights ■of the party of the second part in any property now or heretofore owned, or which may hereafter he acquired by the party of the first part, wherever said property may be sitmáted. And the party of the second part hereby expressly agrees and covenants that she will at any time in the future at the request and expense of the party of the first part execute and deliver such deeds and assurances as may- be necessary to carry out the purposes of this agreement.” On the day following the execution of this agreement Mr. and Mrs. Boland executed a deed to Edward L. Kaufman, his heirs and assigns, of “all the right, title, interest, claim or estate of the said Margaret A. Boland, whether the same be legal or equitable, vested or contingent, present or future, and especially and particularly the prospective dower right or interest of the said Margaret A. B'oland, into and out of all the real estate or fee simple property now belonging to the said John H. Boland, her husband, * * and also any prospective right of dower of the said Margaret A. Boland into or out of any property in fee simple which, said John H. Boland may hereafter acquire by purchase or inheritance or in any other manner whatsoever.” With regard to the deed purporting to convey the dower right of Airs.

Boland to Kaufman there can be no question but that it was absolutely inoperative. Mr. Kaufman was not created by the deed a trustee for the benefit of Mrs. Boland. The attempted conveyance was one absolute in form to him, his heirs and assigns, and it is the settled law of this State that the dower right of a wife in the real estate of her husband, is not such a right as may be bargained and sold. Reiff v. Horst, 55 Md. 42 , re-affirmed in Duttera v. Babylon, 83 Md. 536 .

In legal contemplation Mr. Kaufman was a stranger to the parties grantor in the deed. Ko trust was ¹¹⁶ created by its terms or to be implied from any language in either the granting or habendum clauses of the deed, and, therefore, under the authorities cited he would take no title to the potential right of dower of Mrs. Boland, which the deed purported to convey to him. At the common law the wife could make no grant to her husband of property belonging to her or in which she had an interest, so as to bar her right of dower. She was without the power even to contract, and yet even in this condition agreements between husband and wife which were in their nature fair and just, the object of which was to make provision for her, were sustained; Lively v. Paschal, 35 Ga. 218 ; and were held to bar her right of dower where the agreement so provided in terms.

This result was reached by the