
    John Betts v. James Wise et al.
    A woman, under the ordinance of 1787, was dowable of all lands of which her husband was seized during coverture.
    This is a bill in chancery, from the county of Hamilton, for the foreclosure and sale of mortgaged premises.
    The mortgage was given to secure the payment of two notes, one of which has been paid. To the second note was attached a condition, that it is not to become due, unless Mrs. Dayton’s dower interest, in a certain square in Cincinnati, shall be released. The bill avers, that Mrs. Dayton had no dower in the premises, and, the condition being void, the note is due.
    The land was originally purchased from the government by Symmes; and by him, on March 2, 1798, conveyed to Dayton. On April 29, 1803, Dayton conveyed to Williams, but Mrs. Dayton was not a party to the deed. Upon these facts, the question arises whether, before the statute of 1804, lands in Ohio, claimed by a husband, were liable to dower.
    Charles Fox, for plaintiff:
    I maintain that, by the terms of the ordinance, the widow was only dowable of the lands descended from her husband. *She is not dowable, under the ordinance, of lands which ho hold and deeded away during the coverture. The act of July 14, 1795 (1 Chase, 187), is taken from Massachusetts; and its only object is to provide a, mode of assigning the dower.
    The act of January 19, 1804 (1 Chase, 395), is the first act passed by the Ohio legislature on the subject of dower. By section 1 of this act-it is provided that the widow shall be entitled, during her life, to the use of one-third part of all the real property that her husband was seized of during coverture, unless she shall have joined with her husband in the conveyance.
    If the conveyance from Dayton had been made after the passage of the act of 1804,1 have no doubt Mrs. Dayton would have been entitled to dower ; but, as the conveyance was made before that time, the act could not affect the property described in the deed. There being no dower-right in the way, there was none to release, and therefore the condition attached to th-e note is inoperative.
    Samuel M. Hart, for defendant:
    The provision in the ordinance of 1787, upon the construction of which this question depends, is as follows: “That the estates of resident and non-resident proprietors, in said territory, dying intestate, shall descend,” etc. [here follows the course of descents], “saving, in all cases, to the widow of the intestate, her third part of the real estate for life,” etc.; “and this law, relative to descents and dower, shall remain in full force until altered by the legislature of the district.” This clause in relation to dower, I claim, did not limit dower to cases where the husband died intestate, but merely recognized the right or estate of dower, as it existed at common law. The construction for which Mr. Fox contends would have enabled a husband to deprive his widow of dower in his lands, by making a will. The intention of the framers of this ordinance was, as I conceive, in this clause, to create the estate of dower, leaving to the common law to define of what that estate ^should consist. They determined that the widow’s right of dower should be saved; but the extent and manner of assigning it (until the act of 1795, adopted from Massachusetts), was to be determined by the common law. This notion of restricting dower to lands of which the husband died seized, could not have been very prevalent in 1787, for the common law, for centuries prior to 1787, as far back as Magna Charta, endowed the widow of all lands of which the husband was seized during coverture. Littleton, sec. 36; Park on Dower, 5. “ It has continued unchanged,” says Kent, 4 Kent’s Com. 35, “in the English law to the present time, and with some modifications, it has been everywhere adopted as part of the municipal law of the United States.” The modifications to which the chancellor here refers, I suppose, relate to the question whether the lands were wild. This is the modern doctrine in Massachusetts, 15 Mass. 164; New Hampshire, 2 N. H. 56 ; and probably in one or two more states.
    The first law adopted by the legislature of Ohio, that of 1804, embodied the idea of dower which prevailed in the territory at that time, and in every other country, where the common law obtained, so far as I have been able to ascertain.
   Lane, O. J.

The statute of 1804 (Chase’s L. 395) expressly confers the estate of dower in all lands, and puts at rest all questions of this kind since its passage.

The only statute in force before, was one from Pennsylvania, adopted by the governor and judges, in 1795. Chase’s L. 187. It neither creates nor defines rights, but merely points out the mode in which dower may be assigned.

The ordinance for the government of the Northwest territory provides a rule of descents for the estates of decedents, in the course of which it employs the following language : “ Saving, in all cases, to the widow of the intestate, one-third of the real estate for life, and one-third of the personal estate; and this law, relative to descents and dower, shall remain in full force until altered by the legislature of the district.” Swan’s Stat. 42.

*The plaintiff insists that before the statute of 1804, no right of dower subsisted, except such as was created by these words ; and, as they are used in no other connection, than in respect to lands descended, it is inferred that no right of dower subsisted, except in the lands of which the intestate died seized.

If the estate of dower had no existence, except by virtue of the ordinance, it would be difficult to escape this conclusion. But there are certain institutions and rights which seem to have their foundation in the very constitution of the human race. No nation has been found so rude or uncivilized as not to have provided for itself rules which regulate the relation of marriage, those between parent and child, and the succession of decedents’ estates. And men could not subsist, either in society or in the family, unless these matters, at least, are controlled by some rule which possesses the force of law.

In all the nations of the Teutonic stock, some right of dower has been found to exist from the earliest antiquity. This right has received vai’ious modifications at different times and in different countries; but before the concessions of the great charter, it assumed in England the modern form, by which it attached to all lands of which the husband had seizin during coverture. This continues to be the law of England, and is the law in most states of the Union.

Such is the common law of dower; an institution existing wherever the common law obtained; a rule which each people has the power to change, but a conception which none could shake off without substituting some other provision in its stead. It was to a people, under the dominion of this idea, that the ordinance was addressed, and, far from assuming to prescribe a different rule, or conferring a new right, it does no more than recognize an existing institution, and takes care that it receive no prejudice by the operation of the law of descents. We can regard it as no less than an authentic acknowledgment of the estate in dower at common law, to which law we must recur to learn the signification of the term, and the extent of the dowress’ interest.

^Influenced by these views, we are readily lead to embrace the opinion that, during all periods since the organization of government in the territory, a wife was dowable of all lands within it, of which the husband was seized at any time during coverture. It follows, then, that, in this case, the condition has not occurred by which the note was to become due; and this bill, to obtain its payment by a sale of the tenements morgaged, is dismissed, with costs. Bill dismissed.  