
    Abigail Catlin versus Samuel Ware.
    Where a deed is executed by husband and wife, an acknowledgment by the husband is sufficient to entitle it to be registered.
    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.
    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.
    This was a writ of dower, to which the tenant pleaded in bar, — 1st. That the demandant’s husband, Joseph Catlin, was never seised, &c., on which issue was joined. 2d. That the said Joseph, being seised in his demesne as of fee, on the 28th day of March, 1793, by his deed of that date duly acknowledged, &c., for a valuable consideration, bargained and sold the same land, in which the demandant claims her dower, to one David Horton in fee simple; and that the said Abigail, by the consent of her husband, for the consideration in the said deed expressed, and also of one dollar paid her by the said David, assented and agreed to the same deed of the said Joseph, and then and there, by her act and consent, signified by her affixing her seal to the said deed, and subscribing her mark thereto, she being unable to write her name, barred herself of all right of dower in the same premises, and every part thereof; by virtue whereof, the said David became seised in fee of the same premises, free and exempt from all claim, demand, or right of dower, of the said Abigail therein
    
      The demandant replied, that she did rrot, by her act and consent signified, &c., bar herself, &c., and tendered an issue to the country, which was joined by the tenant.
    The several issues thus joined were tried at the last April term of this Court in this county, before Sedgwick, J., from whose report it appears that the seisin of the demandant’s husband, and her coverture, were agreed, as alleged in the writ.
    The tenant produced the deed of Joseph Catlin to David Horton. mentioned in the pleadings. It purported a conveyance *in fee of the land, in which dower is demanded, and to it, after the name and seal of her husband, were set the demandant’s seal and mark. But her name was not otherwise mentioned in the deed, nor were there any words therein purporting or implying a release of her right of dower. The deed was acknowledged by the husband, and recorded ; but there was no acknowledgment by the wife.
    On the part of the tenant, it was insisted, at the trial, that the latter issue was proved on his behalf. But the judge directed a verdict on both issues in favor of the demandant; referring to the decision of the Court the question whether that direction was right.
    It was also referred to the Court to determine any question which might arise from the finding of the jury, respecting the improved value of the land; the improvements having arisen from ditching the land, making walls, and erecting and improving buildings.
    The jury returned a verdict conformably to the directions of the judge; assessed the demandant’s damages at 49 dollars 50 cents; and certified that the improvements made upon the demanded premises, since the conveyance thereof by Joseph Catlin, were at the rate of fifty per cent.
    
      Bliss,
    
    for the tenant, contended that, by the deed produced at the trial, the demandant had barred herself from her claim of dower. In the case of Fowler vs. Shearer, 
       the Court had recognized the power of a feme covert to bar herself of dower, either by joining in her husband’s deed, or by her separate deed subsequent thereto. It is true, the Court observe, that in the first method it is usual to introduce her in the close of the deed, as relinquishing her claim to dower in the premises conveyed. But as the law on the subject had arisen wholly out of the practice of the country, it would naturally support any general practice. To ascertain the custom in this respect, Bliss said he had searched the registry of deeds in this county from the year 1663, and had found very many deeds precisely like this, that is, which the wife had executed, without any * mention of her in the body of the deed; in some she was made a party to the principal conveyance, and in some she was introduced in the close of the deed, as expressly relinquishing her claim. In each of the methods, it is very apparent that the intent was the same. In the case at bar, the demandant must have had some motive for executing the deed as she did ; she must have intended that some effect should follow from her act; and it is impossible to divine any other than the release of her dower. As to the want of an acknowledgment by the wife, it would have been but an idle ceremony, since the acknowledgment by the husband would authorize the recording of the deed, the purpose of which is to give notoriety to the conveyance ; and as no one but the wife was to be affected by her act, it was enough that she was conusant of what she had done. 
    
    
      Ashmun for the demandant.
    
      
       7 Mass. Rep. 20.
    
    
      
       4 Mass. Rep. 541, Pidge vs. Tyler & Al.
      
    
   Curia.

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

As 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, 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, Neither was an acknowledgment by the wife necessary in order to make the deed binding on her. She must know her own acts, and is bound by such, as the law authorizes her to execute.

The 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,

As 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,

Judgment on the verdict. 
      
      
        {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.]
     
      
      
         [Inhabitants of Worcester vs. Eaton, 11 Mass. Rep 379. —13 Mass. Rep. 371.— Ed.]
     
      
      
        [Lufkin vs. Curtis, 13 Mass. Rep. 223. — Leavitt vs. Lamprey, 13 Pick. 382. — Powell & Ux. vs. Monson Brimfield Manufacturing Company, 3 Mason, 349. — Ed.]
     
      
       [Vide, ante, Ayer vs. Sping, p. 8. — Ed.]
     