
    Lucy A. Mobley vs. Edward D. Mobley and others.
    
      Dower — Renunciation of Dower.
    
    A wife cannot make a valid renunciation of lier right of dower to one who is in possession of the husband’s land, without title, but with his consent, and under expectation of a conveyance from him, according to the provisions of his will already executed, and who afterwards acquires title under the will.
    BEFORE OARROLL, OH., AT FAIRFIELD, JULY, 1867.
    The bill was filed by Lucy A. Mobley, widow of David Mobley,,deceased, late of Chester District, against Edward D. and Samuel W. Mobley, executors of David Mobley, and against others, the children of David Mobley, — all of the defendants, except two infants, being his children by a former marriage.
    The testator died on the 10th of February, A. D,, 1866, possessed of a large real estate of near 4,500 acres of land, and leaving of force a will which had been executed by him on the 28th July, A. D., 1860 ; which will, inter alia, contained the following clauses :
    
      “ First. I bequeath to my wife, Lucy A. the following slaves, to wit: Emeline, Dilcey, Sally; (Lipford,) Ellen, (Lipford,) and Eliza, (Lipford,) together with such increase as they may have between this date and my death. Also a note on Gen. John Buchanan for $3,831.54, and all the furniture she brought with her on our marriage. The above bequest to be in lieu of dower.
    “ Second. To my sons, Edward D., Samuel W., and David M., I devise the tract of land situated in Fairfield District, on Wateree creek, bought of Thos. R. McOlintock, together with the several tracts which I have added thereto, (except the tract bought of Thos. Brown, which I have sold to my son Edward,) the said lands containing a body of about 2,747 acres. The lines of division I purpose to have run, and when done to execute titles to each of my said sons for bis separate portion; but in the event of my death, without having done so, I direct that the same be divided, allotting to Edward, 915 acres, to Samuel, 917 acres, and to David, 915 acres.”
    In the fall of the year 1860, after the will had been executed, the testator called in a surveyor and himself made the division of these lands among his three sons, allotting to David Mobley, 908 acres; to Samuel W., 913 acres; and to Edward D., 912 acres. Plats of each portion were prepared by the Surveyor and were certified in the following form:
    “ South Carolina. — The above plats represent two tracts of land laid off from David Mobley to his son D. M. Mobley, containing nine hundred and eight acres, situated in Fair-field District, on the waters of Pocky creek and Wateree creek, and hath such shape, form, marks, and boundaries as represented by the above plat.
    “ (Signed) J. Y. Mills, D. S.
    “Laid, Sept. 27th and Nov. 3d, 1860.”
    Each son was by the testator put in possession of his respective portion, but no deeds of conveyance were executed.
    In the lands thus allotted to these sons in severalty, the complainant, on the 11th day of October, A. D. 1862, executed to each son respectively her relinquishment of dower, in this form:
    
      “Ti-ie State of South Carolina,
    
      “ Chester District.
    “I, J. Y. Mills, a Notary Public for said District, do hereby certify unto all whom it may concern that Lucy A. Mobley, the wife of David Mobley, of said State and District, did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any compulsion, dread or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto David M. Mobley, son of David Mobley, all her interest and estate in a tract of land lying and being in Fairfield District and State aforesaid, on the waters of Wateree and Bocky Creeks, containing nine hundred and eight acres, and bounded by lands of Joseph Stewart, E. D. Mobley, Samuel Stewart, estate of John Batteree, Dr. William Thorn, Samuel W. Mobley, and others, as will more fully appear by reference to a plat made out bjr J. Y. Mills, D. S., and dated September 27th and November 3d, 1860; and also all her right and claim of dower of, in, or to all and singular the premises above described.
    “Given under my hand and seal, this eleventh day of October, Anno Domini, 1862.
    “ (Signed) Lucy A. Mobley. [l. s.]
    
      “J. Y. Mills, Notary Public and Magst. ex. off."
    
    Belinquishments in like form were at the same date executed to Edward D. and Samuel W.; and were all recorded July 9th, 1866.
    The sons were in possession, each of his several lands, when the testator died in 1866; and had paid taxes thereon in their own names before his death.
    On the day of his death (Feb'. 10th, 1866) the testator attempted to execute another will, but died in the act of affixing Ms signature. The unexecuted paper contained the following provision:
    “I bequeath to my wife, Lucy A. Mobley, and our two children, Cicely A. and David Woodward Mobley (1305) thirteen hundred and five acres of land in Fairfield District, on the waters of Wateree creek, and adjoining lands of Dr. ■ Thorn, Mr. Du Bose, and E. P. Mobley. I also give them the following mules, viz., Beck, Peter, Jake and Dash. Also all my cattle, bogs, and sheep, to be equally divided between them and my two daughters, Catharine Amelia and Mary, and my son, William D. Mobley. I do hereby declare as to the land and other property given to my wife •and her two children, to be in lieu of all dowry or dower, •to my estate or any part thereof, and shall be held subject to the following limitations, that is to sa-y; at her death or marriage the above land and other property to pass over to my two children, Cicely A. and David Woodward, equally, and should either of them die lea ing no issue, to pass over to the surviving child, and should both of them die,-leaving no child or children, the land to pass over to my other children equally.”
    Two days after his death the following agreement was entered into in reference to the unexecuted will, and signed by the widow and all of the children of the first wife :
    “State op South Carolina,
    “ Chester District.
    “We, the undersigned, heirs-at-law of the late David Mobley, of Chester District, and legatees under his last will and testament, bearing date the 28th day of July, A. D., 1860, in consideration that the said David Mobley had prepared another will which he was unable to sign, but which we believe to contain his wishes in reference to the final disposition of hi° estate — said last mentioned paper being in the handwriting of Col. Samuel W. Mobley, and bearing date the tenth day of February instant — do hereby agree to carry out the provisions of the last mentioned paper, and to execute to each other such deeds of conveyance, release, aud relinquishment, as we shall be advised are necessary to effect said agreement.
    “ GHven under our hands and seals this 12th day of February, 1866.
    “Lucy A. Mobley, [l. s.]
    “Edward D. Mobley, [l. s.]
    “ Saml. W. Mobley, [l. s.]
    “David M. Mobley, [l. s.]
    “ William D. Mobley, [l. s.]
    “ Catharine A. Mobley, [l. s.]
    “ Mary E. Mobley, [l. s.]
    “ Witnesses: Wm. J. Henry,
    “ John Sweat.”
    The bill was filed by the complainant in May, 1866, for dower in all of the lands of testator, for an account of certain funds received by David Mobley of her separate estate, and to set aside as to the complainant, the agreement entered into on the 12th February, 1866, if it should be pleaded in bar of her dower.
    The defendants waived the agreement, but in bar of her dower in the lands, devised to David M., Edward D., and Samuel W. Mobley, they pleaded the releases executed by her to each of them respectively. Her dower in other lands was conceded.
    So much of his Honor, the Chancellor’s, decree as relates to the question raised by the plea in bar of dower, is as follows:
    Carroll, Ch. Several questions were discussed at the hearing. The first relates to the validity and effect of the releases of dower executed by the plaintiff to the defendants, Edward D., Samuel W., and David M. Mobley, respectively, on the 11th October, 1862. By his will, bearing date 28th July, 1860, David Mobley their, father, had devised to these defendants the lands mentioned in those releases, and they were respectively in possession of the same in October, 1862. They are not understood, however, to claim otherwise than as devisees under his will. Indeed, two of them, Edward D. and Samuel W. Mobley, having proved his will and assumed the office of his executors, are precluded from setting up any opposing title; and as to the origin of David M. Mobley’s possession of the land in his occupancy, we are only and vaguely informed by the testimony that it began in 1860.
    The renunciations or releases of dower referred to pursue the general form prescribed by the Act of Assemby of 1795 (5 Stat. 256). The wife’s relinquishment of dower in such mode was obviously designed to operate in conjunction with the husband’s conveyance of the land. It was meant to be adjunct and ancillary merely to the conveyance of the husband, but not to have effect as a separate and independent alienation by the wife. With the advance of civilization, population, and wealth, the necessity became more and more manifest of providing for the conveyance of the entire and absolute ownership of land divested of all lien or charge whatever. To meet this very necessity were framed the various devices of fine, recovery, the joint deed of husband and wife, with her acknowledgment of the same duly certified and recorded, and lastly, the modes of renunciation indicated by the Acts of 1795 and 1785 (7 Stat. 233). In all of them the wife is regarded as acting concurrently with the husband, and not solely and apart from him. Under the Act of 1785 her “relinquishment of her right of dower and acknowledgment of the same in Court or before a Commissioner,” and sucb acknowledgment recorded, are declared effectual in law to convey and pass away bex right. But to whom is it transferred ? Not to the husband undoubtedly, but to the person to whom he shall have previously conveyed the land. Nothing could be more explicit in that regard than the terms of the Act of 1795. The married woman is there designated as the wife of “ any grantor conveying real estate ” by the form of deed prescribed, and she is empowered, in the mode indicated to “ renounce and release her dower to the grantee and his heirs and assigns in the premises mentioned in such deed.” Such mode of relinquishing the right of dower assumes, therefore, the- execution of a prior conveyance by the husband, and without it is wholly inoperative as a statutory renunciation, transfer, or release.
    The plaintiff’s releases of dower to the three sons of the testator occurred in his lifetime. lie survived for more than three years afterwards, and died as late as the 10th February, 1866. As devisees under his will, the sons, of course, took no interest whatever in the lands devised until the death of their father.' In no just sense can they be regarded as being his grantees,' or alienees on the 11th October, 1862 ,and unless they were so, they can derive no benefit whatever from the plaintiff’s renunciations, or. releases in their favor.
    It is contended that we have here the concurrence of alienation of the land by the husband, and releases of dower by the wife, and that the mere order in which they occurred ought not to affect the rights of the parties under them. The general legal disability of the wife to dispose of her estate is not removed, even in her regard to her right of dower, by the statutes referred to. She is regarded as being invested by them with a special power of disposition, which can only be effectually exercised in the mode and subject to the conditions which they prescribe.
    
      It lias been adjudged to be the settled law of this State, that even where property is secured to the separate use of a married woman, she cannot charge, encumber, or dispose of it, except by strictly pursuing the power to do so conferred by the instrument creating her estate. “ She can in no manner or respect,” remarks Chancellor Harper, as the organ of the Court, “be considered a feme sole. A feme sole disposes of or charges her property by her own act, and according to her own will, by her inherent power as owner. A feme covert exercises a delegated power and cannot exceed it. She is enabled to execute a power, as in some instances any third person, even though having no interest in the property, might be enabled to execute it and bind her by their act.” Reid vs. Lamar, 1 Strob. Eq. 42.
    The doctrine of this Court seems to be in conformity to the opinion expressed by Sir Thomas Plumer, that a married woman, with a special power of appointment;’ cannot bind herself by contract to sell the property. Her disability as a married woman is taken away if she pursue her power. But when the instrument is not executed according to the power, it is nothing but an agreement signed by a married woman, and as an agreement it is invalid. Martin vs. Mitchell, 2 Jac. and Walk. 413-.
    It is, therefore, considered that the instruments purporting to be renunciations or releases by the plaintiff to the defendants, Edward D., Samuel W., and David M. Mobley, respectively, are ineffectual to exclude her from dower in the lands referred to.
    Dower, by metes and bounds, has been assigned to the plaintiff under the writ for that purpose ordered by Chancellor Lesesne, in all the lands in Eairfield District, of which the testator Mobley died seized. If she is not precluded by her releases to certain of the defendants, as has been here adjudged, then none of the parties are understood as objecting to the assignment of dower proposed by the Commissioners in their return to that writ.
    It is ordered and adjudged that the return of the Commissioners appointed for that purpose, assigning to the plaintiff' her dower by metes and bounds in the lands in Fairfield District, of which her late husband, David Mobley, died siezed, be confirmed and be made the decree of the Court.
    It is further ordered and decreed that an account be taken of the rents and profits of the said lands accrued since the death of the testator, David Mobley, which have been received by the defendants or any of them ; that the one-third part thereof is due and payable to the plaintiff in respect of her dower out of said lands; and that the Commissioner inquire and report which of the defendants should contribute, and in what proportion, towards paying the plaintiff her third part of said rents and profits.
    The defendants appealed on the ground:
    Because his Honor has erred in decreeing that the releases executed by the complainants to the defendants, Edward D., Samuel W., and David M. Mobley, are ineffectual to exclude her from dower in the lands referred to.
    
      Melton and Melton, for appellants.
    Bion, contra.
   The opinion of the Court was delivered by

Wardlaw, A. J.

Since Lampéis case, (10 Co. R. 48,) it has not been doubted that the inchoate right of dower, which a wife has during her husband’s life, is a releasable interest; and if coverture imposes no disability, the wife might by her single act release it to any person, who by possession or privity of estate was in a situation to accept an assignment of a thing in action-. But for protection of femes covert, the English practise, before the dower Act of 3 and 4, W. 4 c. 105, required for bar of dower, the privy examination of a wife when she joined in a fine or common recovery, the modes of conveyance there in use for the purpose of binding a wife-. In this State, as in most of the States of our Union, fine and recovery having never been introduced, other more simple forms have been prescribed for barring a wife’s dower, and the rule as to both dower and inheritance prevails which was laid down in Brown vs. Spann, (2 Mill, 12,) and recognized in Hays vs. Hays, (5 Rich. 38,) viz., “a married woman is not capable of binding herself by deed, unless authorized so to- do by an Act of the Legislature, and then only in the manner and to the extent prescribed by such Act.”

We have then in this case only to inquire whether any Act of force in this State authorizes a wife to release her contingent right of dower to a person, who is- in possession of the husband’s land without title, but with consent of the husband, and under expectation of a conveyance from him, according to the provisions of his will already executed, but of course ambutatory. As the release made by Mrs. Mobley shows no reference to a will, or to any act done or to be done by her husband, the question might be narrowed to this, whether a wife by her single release, independent of her husband’s act, made to a person in possession of her husband’s land, can bar her dower ?

The forty-sixth section of the County Court Act of 1785, (7 Stat. 233,) provides for the relinquishment by the wife, where she has joined the husband in the conveyance, and where she has relinquished without having joined, where she can appear in Court to acknowledge, and where she makes acknowledgment before Commissioners specially appointed; but it cannot now have application, because there is no County Court to take acknowledgment, or to issue the commission and receive the return as there directed.

The Act of 1795, {5 Stat. 256,) extends, perhaps, only to conveyance in fee simple, made according to the form there prescribed, or any other form theretofore in use within this State; at any rate, in the renunciation of dower it manifestly contemplates a grantor, and a release by the wife to the grantee, endorsed upon the grant or release of the husband, or written as a separate instrument referring thereto.

Under the twenty-ninth section of the Quit-rent Act of 1731, (3 Stat. 303) and its amendments made in 1767 (7 Stat. 176, § 7,) a mode was provided for barring a wife of her estate, inheritance, dower, or thirds, which extends to all interests, and which sometimes is yet used; but that looks to the wife’s joining her husband in the conveyance of the land, and to an acknowledgment before the Chief Justice, an Assistant Judge, or some person by either of them thereto appointed, and also to recording in the office of pleas — formalities which have not been complied with in this case.

We have no other Act on the subject, and. even if we should regard the husband’s will as a conveyance made effectual by his death, we cannot perceive that any law of force here gave validity to the supposed release, which the wife made without the forms and conditions required by any legislative Act to which it may be referred.

The motion is dismissed.

Dunkin, C. J., and Inglis, A. J., concurred.

Motion dismissed.  