
    SAMUEL SCHIFFER, Plaintiff, v. THOMAS PRUDEN, Defendant.
    DOWER. FORFEITURE OF, BY REASON OF ADULTERY.
    1. What necessary to malee adultery operate as a forfeiture in this state.
    
    1. A JUDGMENT DISSOLVING THE HABBIAGE CONTRACT by reason of the wife’s adultery is necessary,
    
    
      a. A judgment rendered in an action of divorce a vinculo matrimonii, brought by the husband, adjudging the wife guilty of adultery, but also adjudging the husband guilty of adultery, and adjudging the plaintiff not entitled to a dissolution of the marriage contract is not sufficient.
    Before Freedman, Curtis, and Speir, JJ.
    
      Decided February 1, 1875.
    This is a controversy submitted, without action, under section 372 of the Code.
    An agreement, in writing, was made on October 1, 1874, between the parties, by which Sohifrer agreed to sell, and Pruden agreed to purchase, a lot of land in the city of New York, for seven thousand dollars, to be paid in cash on delivery of a proper deed to Pruden, containing a general warranty and the usual covenants for assuring to him the fee simple of the premises, free from all incumbrances.
    
      Schiffer, at the time and place mentioned in the agreement, tendered to Prnden the requisite deed, containing a proper description of the parties and premises, duly signed, sealed, and acknowledged, and demanded of Prnden seven thousand dollars, who refused to pay and to accept the deed, claiming that the premises were not free from incumbrances, but were subject to the inchoate right of dower of Mrs. Harriet Dietz, wife of John Gr. Dietz.
    The lot had been conveyed to Schiffer by John Gf-. Dietz, May 1, 1872, by deed executed and acknowledged by him alone, who was then a married man; and his wife Harriet Dietz, then and still living, did not join with her husband in the conveyance ; nor did she then, or at any time, execute or deliver to Schiffer, or to any one else, any conveyance or release of her right of dower in the premises. Dietz at the time owned said lot in fee simple, subject to the inchoate right of dower of Harriet Dietz.
    On March 17, 1873, John Gr. Dietz commenced an action in this court against Harriet Dietz, for a divorce on the ground of her adultery, charging specific acta She appeared in the action, denied the adultery charged, and by way of counter-claim charged adultery against John Gr. Dietz. The action was referred to a referee, who reported that both parties to the action had been guilty of adultery as charged.
    On July 1, 1874, a judgment or decree was entered in the action, adjudging and decreeing the report oi the referee, so far as the same finds and reports that Harriet Dietz did commit adultery, as charged in the complaint, be confirmed; and that the report that John Gr. Dietz did commit adultery, as charged in the counterclaim, be confirmed, and that the plaintiff is not entitled to the relief asked for in his complaint, and that the defendant is not entitled to the relief asked for in her counter action.
    
      
      Charles Jones, attorney, and of counsel for plaintiff urged:
    I. Prior to the making of the agreement and the tender under it, Harriet Dietz had ceased to have any right of dower, inchoate or otherwise, in any part of the said premises.
    (1.) By the statutes of this State it is provided that •'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, nor to any distributive share in his personal estate” (2 Rev. Stat. 146, § 48; 3 Id. (5th ed.), 237, § 61).
    II. In Wait v. Wait (4 N. Y. 95), at page 100, the court in enumerating some of the ways in which a wife may be divested of dower, includes her conviction of adultery in a suit for divorce brought by her husband, referring to the provision of the statute above mentioned (Pitts v. Pitts, 52 N. Y. 593). In this case the referee having found that the wife had committed adultery, but that the husband had condoned it, judgment was entered in favor of the wife, dismissing the complaint. The court of appeals held that the adultery having been condoned, it was the same in effect as if she had never been guilty of adultery, and that, therefore, there could not be a conviction of adultery. In the opinion, however, the court states the broad proposition that “a wife can only be barred of dower by conviction of adultery in an action for divorce, and by the judgment of the court in such action. ”
    III. The following provision in the Revised Statutes, “ In case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed” (1 Rev. Stat., pt. 2, ch. 1, tit. III, § 8, 741; 3 Id. (5th ed.) 32, § 8), does not affect this case. The only misconduct for which a divorce dissolving the marriage contract in this state can be granted is adultery (2 Rev. Stat., 144, § 38; 3 Id. (5th ed.) 235, § 51).
    
      It is plain that the two sections of the statute do not refer to exactly the same thing—the one provides that a woman shall not be endowed where she is divorced on account of her adultery—the other provides that a woman shall not be endowed where, in an action by her husband for divorce, she shall be convicted of adultery, irrespective of the question as to whether her husband is divorced from her or not.
    IV. The history of this provision of the statute, as traced through the law, shows clearly that the construction which should be put upon this statute is, that where the wife is convicted of adultery, irrespective of the question of divorce, except that it must be in an action for divorce, she is barred of her dower (3 Black Com., 130; 4 Kent Com., 52., 13 Edw. I., ch. 34; 3 Greenl., 294, § 7; 3 Rev. Laws, 1813, 199, § 8; 2 Rev. Stat., 146, § 48; 3 Id. (5th ed.), 337, § 61; 3 Rev. Stat. (5th ed.) 33, § 8).
    
      J. Edgar, attorney and of counsel, for defendant, urged:
    I. At common law, adultery of the wife did not work a forfeiture of right of dower.
    II. By the statute of 1787, adultery on the part of the wife worked a forfeiture of dower, unless condoned by the husband (1 Rev. Laws, 58, § 7).
    III. But that law was repealed by the revised statutes in 1830, and since then, adultery on the part of the wife does not work a forfeiture of dower, unless followed by a decree of divorce a vinculo (2 Rev. Stat., 3rd ed., 37, § 8). The statute (2 Rev. Stat., 3rd ed., 305, § 46) which is almost a re-enactment of 2 Rev. Laws, 199, § 8, must be construed to'mean that, in an action for divorce, a conviction of adultery can only be by a decree of divorce. In such an action, although the wife be found guilty of adultery, she can only be convicted of adultery by a judgment of divorce, and not by a judgment of dismissal of the action (See Re
      
      viser’s Notes, 3 Rev. Stat. (1st ed.) 597, § 8; 2 Scribner on Dower, 502; Reynolds v. Reynolds, 24 Wend. 198, 196, 197; Waite v. Waite, 4 Comst. 95, 102; Cooper v. Whitney, 4 Hill, 99). In the case of Deitz v. Deitz, the finding of the wife guilty of adultery was not a necessary finding for dismissing the complaint of the husband, and consequently no conviction. It was only a necessary finding for the dismissal of her cross-action. But the statute does not provide that if a wife be convicted of adultery in an action brought by her for divorce, she shall not be endowed, &c. This statute was never intended to benefit the husband guilty of the same sin as the wife. The old principle “ that he who asks equity must do equity,” may be considered to cover this case. The husband and wife may yet be reconciled, and their respective misconduct condoned, in which event no one could claim that the wife was not endowed of the husband’s real estate.
   By the Court.—Speir, J.

The question presented for consideration, is whether Mrs. Harriet Rietz has an inchoate right of dower to the land agreed to be conveyed.

By our statute, which is taken substantially from the common law, “Ho act, deed, or conveyance executed or performed by the husband, without the assent of his wife, evidenced by her acknowledgment thereof in the manner required by law to pass the estate of married women, and no judgment or decree confessed by, or recovered against him, and no laches, default, covin, ‘ or crime by the husband, shall prejudice the right of the wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto ” (Rev. Stat. 693, § 16, Edmonds' ed.).

Rower is a title inchoate, and is an interest which attaches on the land as soon as marriage and seizin concur. This right is consummated upon the death of the husband. While the husband lives the wife has no right, interest, or estate in the land, but she has the capacity to take in the event of her surviving her husband,—she is dowable. When she becomes a widow she is entitled to dower. Bronson, J., in Reynolds v. Reynolds (24 Wend. 193), says, “It was the widow, not the wife, who was provided for by Magna Charta ” (9 Hen. Ch. 7; 2 Inst. 16). The relation of husband and wife must have existed, and it is this relation which invests the wife with dowable capacity. If there be seizin during coverture the capacity to be endowed is converted into what is called an inchoate right of dower, “which attaches on the land as soon as marriage and seizin concur” (4 Kent. Com. 50). Hence the statute before cited enacts, in accordance with the common law, that the husband alone can not defeat his wife’s estate by any act in the nature of alienation or charge without the assent of the wife given and proved according to law.

The interest of the wife which has thus attached by the concurrence of marriage and seizin,—her inchoate right of dower—may be barred or divested in many ways, as by her uniting with her husband in the execution of a conveyance, or by sale under foreclosure of a mortgage for the purchase-money, or by conviction of adultery in a suit for divorce brought by her husband (2 Rev. Stat. 146, § 48).

The question here is, whether the wife’s inchoate right of dower is barred by a determination in a suit in which both she and her husband have been found guilty of adultery, there being no decree dissolving the marriage relation. The facts in the case present a new question in the construction of the statutes relating to the forfeiture of dower.

The common law gave to the wife a right of dower in all lands of which the husband was seized during marriage, and the same has by statute become the law of this state (1 Rev. Stat. 691. § 1, Edm. Stat. at L.).

Prior to 1830, by the statute of 1787, adultery on the part of the wife worked a forfeiture of dower, unless condoned by the husband. By the repeal of that law, the mere fact of living in adultery ceased to be a bar to dower. A new provision was made in the following words: “In case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed” (1 Rev. Stat. Edm,. Ed. 699, § 8). Under this statute which relates to “ estates in dower,” the adultery which is doubtless the misconduct referred to, is not enough to disbar. It must be followed by a dissolution of the marriage contract.

The argument of the learned counsel for.the plaintiff is put upon the ground that inasmuch as the only misconduct of the wife for which a divorce dissolving the marriage contract in this state can be granted, is adultery, and as by section 48 of the statute, relating to divorces, which says nothing about a divorce having been decreed, but simply provides, “that whenever, in a suit for divorce brought by her husband, the wife shall be convicted of adultery, she shall not be entitled to dower,” he claims it does not follow that the husband should obtain a decree of divorce in his favor in order to disbar his wife.

It appears to me that the statute has provided for the case where the fact of adultery has been established. By section 42 of article 3, 2 Rev. Stat. 151, Edm. Ed., it is enacted, “ although the fact of adultery be established, the court may deny a divorce in the following cases,” of which the fourth subdivision of this section is one, as follows: “ Where it shall be proved that the complainant has also been guilty of adultery under such circumstances as would have entitled the defendant, if innocent, to a divorce.” This is the case at bar. The complainant was proven guilty of adultery which would have entitled the defendant, had she been innocent, to a - divorce, and the court must deny the husband’s divorce.

The marriage relation, therefore, continues to exist between the parties, notwithstanding both have been found guilty of adultery, and the wife is not divested of her inchoate right of dower to his land (Pitts, et al. v. Pitts, et at., 52 N. Y. 593; Reynolds v. Reynolds, 24 Wend. 193; Waite v. Waite, 4 Coms. 95).

The defendant, Thomas Pruden, is entitled to judgment, with costs.

Freedman and Curtis, JJ., concurred.  