
    Friend Pitts and Mary Jane, his wife, vs. Mary Ann Pitts and others.
    It was clearly the intent of the legislature, by the statutory provisions on the subject of dower, to coniine the effect of adultery by the wife, in barring her claim for dower, to cases in which such adultery is established by a judgment of the court.
    Neither of those provisions (6 IV. 7. Stat. at Large, p. 336, §§ 8, 48) apply to a case which arises after a divorce has been obtained, or to adultery committed, unless the wife is convicted of the offence. If, upon the trial of an action for divorce, the plaintiff fails on account of condonation of the offence, there is no conviction.
    THIS is an appeal from an order made at Special Term, denying a motion to vacate an order directing the payment of $802.07 paid into court, being the value of the contingent inchoate right of dower of Rachel Ann Pitts, one of the defendants, and the wife of John Pitts, another defendant in tMs action, wMch was commenced in January, 1870, for the partition of certain real estate in Hew York City. The decree was entered March 24,1870, and the report of sale was confirmed July 8, 1870.
    The said Rachel Ann Pitts refusing to execute a release of her contingent inchoate right of dower in the premises, the referee named in the decree was directed to ascertain the then present value of the said contingent inchoate right of dower upon the principles of life annuities, which was accordingly done, and found to amount to the sum of $802.07. By consent of the parties this sum was secured by the bond and mortgage, (bearing date July 8, 1870,) of the purchaser, to the referee named in the decree, on a part of the premises sold, for the investment and benefit of the said Rachel Ann Pitts.
    In April, 1869, the said John Pitts commenced an action in this court against Ms said wife Rachel Ann Pitts, for an absolute divorce, upon the ground of adultery. The issues raised therein, were referred to a referee to hear, try and determine, who rendered his report, bearing date October 25, 1871, whereby he found that the defendant in said action had been guilty of an act of adultery, on April 8, 1869, and that the plaintiff in said action had condoned the same, and had voluntarily cohabited with his said wife, with full knowledge of the act of adultery committed by her; and directed that the complaint in said action for a divorce, be dismissed with costs. Upon said report judgment was entered on January 17, 1872, dismissing the said complaint, and for $446.26 costs in favor of the wife, (defendant,) against the husband, (plaintiff.)
    In August, 1872, the said Rachel Ann Pitts filed a petition in this action, setting forth the above facts, and praying that the said $802.07 be paid over to her, upon which an order of reference was granted to take proof of the facts set forth in said petition. The report of the referee upon this petition was confirmed by an order of this court, on September 4, 1872, and the referee named in the said decree, was directed to call in and collect the said bond and mortgage, and pay the same over to the petitioner, (Rachel Ann Pitts,) or her attorney. Whereupon the said John Pitts made a motion to vacate and set aside this order of September 4, 1872, and that the said bond and mortgage for $802.07 be assigned and transferred to him. This motion was denied by his Honor Judge Fancher, on the grounds stated in his opinion, which is as follows:
    Fancher, J. This is a motion by John Pitts, a defendant to vacate an order entered in this action on the 4th day of September, 1872, whereby a referee was directed to collect a mortgage and pay to Rachel Ann Pitts, another defendant, (wife of said John Pitts,) $802.07, being the amount found due her, according to the principles of life annuities, for her contingent right of dower in the husband’s share of real estate described in the decree herein.
    
      The ground on which the motion is made is, that the wife has forfeited her dower, by adultery.
    It appears that the husband had brought an action for divorce, against the wife, prior to the judgment of partition herein, in which the referee found that the wife had been guilty of adultery on the 8th of April, 1869, which was prior to the commencement of this partition suit, and that the husband had condoned the offence by subsequent cohabitation with the wife, for which reason the complaint in the divorce action was dismissed. The husband now moves to have the wife’s allowance for right of dower set aside because of such offence.
    It is contended by the learned counsel for the motion, that the wife was “convicted of adultery” within the meaning of 2 R. S., 146, § 48, and thereby forfeited her right of dower. But I think the plain meaning of the statute is, that she incurs the penalty of forfeiture of her dower when she is convicted of adultery by the decree or judgment of a competent court, in a suit for divorce, brought by the husband. It would put a strain upon the statute, which by fair interpretation it cannot bear, to construe it to mean some proof of adultery, or anything less than a conviction of adultery by a decree or judgment. It would be going too far to say that such a decree had been had, whenever a referee has found that the adultery has been proved, though the husband had condoned the offence, and on the report of such facts the complaint of the husband had been dismissed. In such a case, I think there was no conviction of adultery, within the statute. This will be clear if we refer to the course of enactment on the subject. Under the statute of Westm., 2, 13, Edw. I, adultery in the wife, accompanied with elopement, created a forfeiture of her dower, by way of penalty. But a reconciliation with the husband reinstated the wife in her right. That statute was re-enacted in New York, in 1787, and it barred the wife of dower who eloped and lived with the adulterer, unless her husband was subsequently reconciled to her.
    Our Revised Statutes have abridged this ancient bar by confining it to cases of a dissolution of the marriage contract for misconduct, and to cases of conviction of adultery, in a suit for divorce, brought by the husband. Elopement and adultery are no longer sufficient to bar dower; but there must be a conviction of adultery in a suit for divorce. It is said in the elementary works which treat of the subject, that “a divorce, a vinculo matrimonii, bars the claim of dower.” The reason is, that the claimant must have been the wife at the death of the husband. The remark thus quoted, was well employed by Blackstone and other old writers, who wrote when the common law was in full vigor, and when unchanged by later statutory enactments. But the remark is not universally true in our country, for the statutes of many of the States have created new grounds of divorce a vinculo, which were unknown to the common law, and in such cases the right of dower can only be barred by express statutory enactments. (See Wait v. Wait, 4 N. Y. 100.)
    There was no divorce a vincula at common law for any cause arising subsequent to the marriage. IsTot even adultery was a sufficient ground for a divorce a vinculo at common law, but only for a decree a mensa et thoro.
    
    It is therefore plain that it is not adultery, which of itself, can bar dower. It must be followed by a conviction in a suit for divorce by the husband, and such a conviction must be established by the final decree or judgment in a proper action. It follows that the wife was not barred of her right of dower in this case, and the motion must be denied.
    Motion denied, and stay of proceedings vacated.
    
      From the order entered upon the above decision, John Pitts appealed.
    
      J. Langdon Ward, for the appellant.
    I. The right of the respondent, Rachel Ann Pitts, to the moneys secured by this mortgage, was dependant on the issue of the divorce suit. If by the issue of that action her dower was barred, she had no claim to those moneys.
    II. By the issue of the action for divorce the respondent was barred of her dower. Section 48, article 3, title 1, chapter 8, part 2 of the Revised' Statutes reads thus: “A wife being a defendant in a suit for a divorce brought by her husband, and convicted of adultery, shall' not be entitled to dower in her husband’s real estate or any part thereof,” &c. The respondent is brought clearly within this provision. She has been convicted of adultery in a suit for divorce brought by her husband. The question arises on the meaning of the word convicted, though that, seems plain. 1. Convict; Latin, convinco. To overpower by proving a charge against me; to prove guilty. (Worc. Die.)
    
    
      2. To prove or find guilty of an offence or crime charged; to pronounce guilty as by legal decision. (Webs. Dic.)
    
    3. “But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted, which conviction may acrue two ways—either by Ms confessing the offence and pleading guilty, or by his being found so by the verdict of his country. (Black. Com., book 4, p. 362.) 4. A referee combines in his own person both judge and jury. His findings of fact stand for the verdict of a jury. Like the verdict of a jury they are conclusive, in case of a conflict of evidence. (Hoogland v. Wight, 20 How. Pr. 70.) 5. The referee found the respondent guilty of an act of adultery. His report was confirmed, and judgment of tMs court entered upon it. This judgment practically says: The defendant is proved guilty of "adultery, but a divorce is denied because the plaintiff has forgiven the offence by cohabitation. 6. It is objected that this is not a conviction, because the' judgment is for a dismissal of the complaint, and does not in terms recite that the defendant was guilty of adultery; but the verdict of a jury, or findings of fact by a referee on which a judgment is rendered, are necessarily parts of the judgment itself. They are the grounds on which the' judgment necessarily proceeds, and like the judgment itself, may be pleaded as an estoppel in a second action between the same parties. (Betts v. Star, 2 Com. 550. Edwards v. Stewart, 15 Barb. 67.)
    III. That this is a case for which the statute is intended to provide, is evident from the course of legislation on the subject, (a.) The statute of Westm. 2, 13, Edward I., chapter 34, provided that “if a wife willingly leave her husband and go away, and continue with her advouterer, she shall be barred forever of action to demand her dower that she ought to have of her husband’ s lands, if she be convicted thereupon, except that her husband willingly and without coercion of the church, reconcile her and suffer her to dwell with him, in which case she shall be restored to her action.” (2 Inst. 433.) (5.) Section 7 of chapter 4, of the laws of 1787, substantially, and almost in Jicec verba, re-enacts this statute, and such the law remained until the revision of 1830. (c.) In 1830, the revisers submitted to the legislature as section 8 of title 3, chapter 1, part 2, the following: “If a wife commit adultery, and the fact be established against her, either by a decree dissolving the marriage contract, or by proof in an action brought by her to recover her dower, she shall be barred forever of all claim and right to dower of her husband’s lands; unless it be shown, that after knowledge of such adultery, her husband was reconciled to her, and that he permitted her thereafter to dwell with him, in which case she shall be restored to her right of dower.” (5 N. Y. Stat. at L., 335 Edm. ed.) This section was struck out, and in its stead the legislature enacted these two sections, viz., section 8, title 3, chapter 1, part 2: “In case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. ’ ’ And also section 48, article 3, title 1, chapter 8, part 2: “A wife being a defendant in a suit for a divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband’s real estate, or any part thereof,” &c. (d.) These alterations were made by the legislature, not in wantonness, but for a purpose which will be manifest on analyzing the statutes. The statutes of Westminster and 1787 provided : 1. That elopement and adultery • by the wife barred her dower. 2. That such adultery could be proved against her like any other fact, in any action by her to recover her dower. 3. That reconciliation with the husband restored her dower. The revisers attempted to provide: 1. That adultery of the wife should bar her dower. 2. That a decree dissolving the marriage contract on the ground of her adultery, should be proof sufficient of such adultery. 3. That in the absence of such decree, such adultery might be proved against her in an action by her to recover her dower, like any other fact. 4. That reconciliation with the husband should restore her dower. The legislature changed the old law and refused to adopt the recommendation of the revisers, but provided: 1. That a decree dissolving the marriage contract for the misconduct of the wife should bar dower. 2. That if in a suit for divorce brought by the husband, the wife was convicted (i. e., proved guilty) of adultery, she should be barred of her dower. They ■ refused to provide as the law had done, and as the revisers - recommended: 1. That adultery of the wife could be proved by heirs or legatees, like any other fact in bar of her action for dower. 2. That a condonation of such adultery should rehabilitate her in her right to dower. The construction of the statute contended for by the defendant wife, and adopted by the learned judge below, would make both these provisions of the Revised Statutes mean the same thing, rendering one mere surplusage, and decide the legislature to have enacted precisely what the revisers recommended, although they manifestly intended no such thing, (e.) Much light upon the proper interpretation of this statute is contained in Reynolds v. Reynolds, (24 Wend. 192.)
    IY. The order appealed from should be reversed, and an order entered vacating the order of September 4, 1872, and directing an assignment of the mortgage in question to John Pitts,
    
      Richard L -H. Finch, for the respondent Rachel Ann Pitts.
    I. The appellants’ moving papers clearly show that the respondent Rachel Ann Pitts, wife of John Pitts, was legally entitled to the order of September 4, 1872, directing the payment of the $802.07 to her.
    II. This sum of $802.07 paid into court under the decree of March 24, 1870, was the value of her then contingent inchoate right of dower in the real estate partitioned in this action, she having refused to execute a release; and upon the payment of this $802.07 into court by the execution of the bond and mortgage bearing date July 8, 1870, this money became immediately vested in Rachel Ann Pitts, the respondent. (4 R. S. 511, 512, Edm. ed. Bartlett v. Van Zandt, 4 Sandf. Ch. 396. Gray v. Cook, 24 How. 432.) This sum of $802.07 was paid into court and secured by bond and mortgage for Rachel Ann Pitts’ security and investment, and remained in court subject to her application for the same. This sum being her sole property, she was legally entitled to it whenever she applied to the court for it; and her husband, John Pitts, the appellant, has no interest in or control over the same. (Benedict v. Seymour, 11 How. 176, 178.)
    III. There are but two grounds upon which the respondent Rachel Ann Pitts’ claim and right to this $802.07 can be defeated: 1. By her voluntary release under her hand and seal. 2. By the judgment or decree of the court dissolving the bonds of matrimony for misconduct—adultery. .Neither of these exist. She never executed a release of dower, and the bonds of matrimony have never been dissolved. She is still the wife of John Pitts, the appellant.
    ■ IV. Dower cannot be forfeited except by the decree or judgment of the court adjudging a forfeiture. (2 Scrib. on Dower, 502, § 9. Tyler on Infancy and Coverture, 578, 579, § 414. Reynolds v. Reynolds, 24 Wend. 192. Cooper v. Whitney, 3 Hill, 99. Wait v. Wait, 4 N. Y. 95. Forest v. Forest, 3 Abb. Pr. 165.)
    . V. John Pitts, the appellant, is estopped from setting up the alleged adultery, by reason of his voluntary cohabitation with his wife. Condonation wipes out adultery, and restores the offending party to her original status ; and prevents the granting of a decree or judgment upon the adultery. (2 R. S. 151, § 42, [2] Edm. ed. Willard's Eq. Jur. 657.)
    VI; The finding by a referee of an act of adultery, followed by a finding of an act of voluntary cohabitation condoning the act of adultery, vitiates and neutralizes the act of adultery so found, and bars a conviction.
    VII. There can be no “conviction” in an action for divorce on the ground of adultery, without a decree or judgment, and there can be no decree or judgment where cohabitation or condonation is established and found. (See cases under 4th point.) 1. The judgment of January 17, 1872, in the divorce suit, is in favor of Rachel Ann Pitts and against John Pitts, dismissing Ms complaint and action with costs. 2. “A judgment is the final determination of the rights of the parties in the action.” (Code, § 245.)
    VIII. This dower fund of $802.07 was created by the decree of partition, entered in tMs action March 24, 1870, and was the value of Rachel Ann Pitts’ Contingent inchoate right of dower in the property partitioned and sold, and was secured by the bond and mortgage bearing date July 8, 1870. The report of the referee in the divorce suit bears date October 25, 1871. The judgment upon this report was entered January 17, 1872, in favor of the defendant and against the plaintiff, dismissing the plaintiff’s complaint. So there was no finding by the referee, in the divorce suit, until some nineteen months after the entry of the decree of partition, and some fifteen months after the bond and mortgage were given securing the value of tMs dower interest.
    IX. Had the referee, in the divorce suit, decided the same in favor of John Pitts, the plaintiff, and against Rachel Ann Pitts, the defendant therein, it would not have availed John Pitts, the appeHant, as tMs dower fund of $802.07 became vested in Rachel Ann Pitts, the respondent, more than a year before the divorce suit was decided.
    X. This dower interest having been once vested, the same cannot be divested except by the voluntary release of Rachel Ann Pitts, as there was no judgment decree or finding of any referee against her upon any point, at or before the vesting of tMs dower fund in her. It is therefore submitted, that in no aspect of the case can the respondent be deprived of her right to tMs $802.07, as it was the value of her then present, contingent inchoate right of dower in the distributive share of her husband in the proceeds of the sale of the real estate partitioned and sold under the decree of this court, entered in tMs action on March 24, 1870.
    
      [First Department, General Term, at New York,
    January 6, 1873.
    
      Ingraham and Brady, Justices.]
   By the Court, Ingraham, P. J.

We think it was clearly the intent of the legislature, by the statutory provisions on the subject of dower, to confine the effect of adultery by the wife in barring her claim for dower, to cases in which such adultery is established by a judgment of the court.

It may well be doubted whether either of those provisions, (5 N. Y. Stat. at Large, p. 335, §§ 8, 48,) apply to a case which arises after a divorce has been obtained. Section 8 only applies to a case where the divorce is granted for the misconduct of the wife; and section 48 applies to a case where the defendant is convicted of the adultery in a suit for a divorce brought by the husband. ¡Neither applies to adultery committed, unless the wife is convicted of the'offence, if, upon the trial, the plaintiff fails, on account of condonation of the offence, there is no conviction.

Coke says: “If the wife is pardoned, before the death of the husband, she shall be endowed.” So., also, if she is reconciled to her husband, after elopement. The effect of condonation restores her right to dower, even if forfeited by the adultery; and "if such fact is found, in the divorce suit, the previous adultery works no forfeiture.

The order was right, and should be affirmed.  