
    Catharine Stearns versus Benjamin Swift.
    To a writ of dower, the tenant, who is a purchaser, pleads, that he cannot deny the right of the demandant to be endowed, but that he has made improvements on the land, and that he has always been ready to render to the demandant her rev sonable dower, according to her just rights in respect to the increased value of the land, and that on a day specified he assigned a third part of the land, in the con dition in which it was at the time of the alienation, by metes and bounds ; and he prays that the increased value may be inquired of. Upon demurrer it was held, that, as a plea in bar, the plea was bad ; and that it must be construed as admitting a right to recover dower according to the value at the time of the alienation, but denying the right to be endowed of the improvements.
    If a wife joins in a deed with her husband,<c in token of her relinquishment of dow cr,” without any words of grant on her part, although the husband may have previously parted with all his right and title to the grantee named in the deed, she is nevertheless estopped to claim her dower.
    Writ of dower uncle nihil habet.
    
    The tenant pleads as to a quarter of an acre, part of the demanded premises, that “ he cannot deny the right of the said Catharine to be endowed as of the endowment of the said David Stearns, heretofore husband of the said Catharine ; ” but he says that one Larkin recovered a judgment against the husband, and on April 29, 1798, levied his execution on this part, and that the tenant now has the es'ate of Larkin, and that since the levy, this part has been greatly improved by Larkin and the tenant, and that the tenant “ has always been ready, &c. and yet is ready to render to the said Catharine her reasonable dower in said part, according to her just rights in respect to the improvements and increased value thereof as aforesaid,” and that on the 21st day of October, 1826, he assigned to the demandant, by metes and bounds, 4782 square feet of this part, “ and then and there offered the same to the said Catharine to hold the same for the term of her life, a» her dower of and in the said part ; ” and he avers, “ that the same land, with the privileges so assigned as dower, is a full third of said part, in the condition it was in at the time the said Larkin received seisin thereof as aforesaid ; ” and he “ prays that the improvements and increased value of the part aforesaid, made as aforesaid, may be inquired of in such manner as the Court shall consider.” And as to the residue in which dower is demanded the tenant pleads, that the demandant ought not to have her dower in such residue, being the same estate set off to James Noble on execution against the husband, because he says, that the husband, on the 30th of March, 1799, together with one Mary Cochran, by their deed of that date, duly acknowledged, &c. granted, bargained and sold such residue to Noble in fee and in mortgage, and that the demandant, of her own free will, testified by her signing and sealing the deed, relinquished all her right and claim of dower in such residue to Noble, and that Noble, on the 31st of October, 1809, (having before that time had the equity of redeeming such residue released to him by the husband,) conveyed such residue to the tenant and his heirs, “ and this the said Swift is ready to verify ; wherefore he prays judgment if the said Catharine ought to have her dower in the residue aforesaid, and for his costs.”
    The demandant demurs to the plea as to the quarter of an acre, and assigns for causes of demurrer, 1. that the tenant has undertaken to set out an assignment of dower in that part, and has made several material and substantive allegations for the purpose of avoiding and defeating the demandant’s action thereof, and yet he has not averred that he is ready to verify the same, and has not concluded with a verification ; 2. That he has undertaken to set out an assignment of dower in that part, and yet has not alleged that the demandant assented to or agreed to the same, or that she has accepted the same ; and because the plea is double, uncertain, defective and informal.
    And as to the plea relating to the residue of the land, the demandant craves oyer of the deed of March 30, 1799 ; which was a deed in fee and in mortgage, in common form, from David Stearns and Mary Cochran to James Noble, with the concluding clause as follows, — “ In witness whereof we, the said David, and Catharine, wife of said David, in token of her relinquishment of dower in the premises, have hereunto set our hands and seals,” &c.) and after oyer the demandant replies, precludi non, because on March 29, 1798, Noble levied an execution against her husband, upon such residue, by means whereof Noble, on that day, became seised and possessed of all her husband’s estate in such residue, subject only to his right to redeem the same within one year, and her husband never did redeem the same ; and so her husband on the 30th of March, 1799, had no estate, legal or equitable, in such residue, nor did any estate, right, title or interest, of any sort, pass from him by the deed of that date.
    The tenant joined in the demandant’s demurrer, and demurred generally to her replication.
    Morey, in support of the first cause of demurrer assigned,
    cited 1 Chit. Pl. 537; 1 Saund. 103, note 3; S. 4 Anne, c. 16, § 1; Jackson on Real Actions, 321; Allan v. Smith, 1 Cowen, 180.
    
      Oct. 14th
    
    With respect to the second cause, he referred to St. 1783, c. 40, § 1 ; Lib. Intrat. 109; Rast. Ent. 229, cited in Story’s PL 350; Jackson on Real Actions, 322, 323, 324; Stearns on Real Actions, 308, 476; Johnson v. Morse, 2 N. Hamp. R. 48.
    As to the “ residue ” of the land, he contended that the clause of relinquishment of dower, contained in the deed of March 30, 1799, was inoperative, because the husband had previously parted with all his estate. Where the deed of the wife is subsequent to the conveyance by the husband, terms of grant must be used to convey her right of dower. Fowler v. Shearer, 7 Mass. R. 14; Stinson v. Sumner, 9 Mass. R. 143; Jackson on Real Actions, 310, 326, 327; Story’s Pl. 359, 360; Stearns on. Real Actions, 289, 290; Com. Dig. Estoppel, C.
    
    
      Hoar and Tufts, contra.
    
    The plea could not allege that the dower set out was accepted by the demandant, for the fact was otherwise ; but it does not follow that the plea is bad on that account. It was sufficient for the tenant to set out a third of the land and tender it to the demandant. If she claims to have it assigned by commissioners, she should have denied that it had been properly assigned, and then the question could have tried.
    The verification at the end of the plea, applies to both branches of the plea.
    In regard to the release of dower, they relied on some of the authorities cited for the demandant.
    
      Yen *$d.
    
   Wilde J.

delivered the opinion of the Court. On the^e pleadings two questions arise. The first is, whether the de mandant is entitled to recover as to the quarter of an acre, part and parcel of the premises described in the writ. And as to this, we are of opinion that the plea in bar, if it was intended as such, is not well pleaded. It is not alleged, according to the established form of pleading, that the demandant ought not to maintain her action as to this part of the premises ; but on the contrary, her right to be endowed therein is expressly admitted. If in that part of the plea which follows, it was intended to set out and allege an assignment of dower to the demandant, it is manifestly repugnant to the admission before made ; and is inconsistent with the conclusion of the plea, which prays that the increased value and improvements, made by the tenant after the alienation of the estate by the husband, may be inquired of in such manner as the Court shall consider. The only consistent manner in which the plea can be understood, is to construe it as admitting the demandant’s right to recover her dower according to the value of the land at the time of the alienation, but denying her claim to be endowed of the tenant’s improvements. And to this extent, and no further, we think the demandant is entitled to judgment on these pleadings.

As to the residue of the land demanded, we think the demandant’s claim to dower therein is barred by her deed of re lease, as set forth in the replication.

It is no valid objection to the operation of this deed, on the part of the wife, that her husband had no right or title to the land at the time of its execution. To render the transfer of an estate effectual and complete, it is not essential that the sale by the husband, and the relinquishment of dower by the wife, should be made by the same deed, or at the same time, although this is the usual mode of conveyancing. But if after a sale by the husband, or after his estate has been taken on exe cution, the wife will voluntarily relinquish her claim to dower by a separate deed, L s.i. effectually bar her dower. Fowler v. Shearer, 7 Mass. R. 14.

Nor is it any objection, that the deed of the wife, as in the present case, is a mere release, containing no words of grant; for it operates by way of estoppel, and not by way of grant; so that the form of the deed is not material. We are there fore of opinion, on the whole matter, that the plea as to the quarter of an acre, and the replication as to the residue, are both insufficient; and that the demandant is entitled to her dower in the small piece of land, only according to its value at the time it was alienated by the husband. 
      
       See Powell v. Monson Brimf. Manuf. Co. 3 Mason, 370; Waters v. Gouch, 6 J. J. Marshall, (Ken.) 591; 10 Wendell, 480; 4 Kent, (3d ed.) 64 et seq.; cases cited in 1 Hilliard’s Abr. 72, 73.
     
      
       See Shaw v. Russ, 14 Maine R. (2 Shepley,) 432; Powell v. Monson B. Manuf. Co. 3 Mason, 347; Rowe v. Hamilton, 3 Greenleaf, 63; Revised Stat. c. 60, 5 7; 1 Hilliard’s Abr. 79, 80.
     