
    Jones et ux. versus Brewer.
    A guardian may assign dower.
    Bv an agreement under seal between the widow and the guardians of the heirs, the whole of one parcel of the husband’s land was assigned to her for her life, to be holden in full satisfaction of her dower, and subject to all the conditions and liabilities, and with all the privileges and incidents of dower. The land assigned proved'to be under mortgage. Held, that this was an assignment against common right, and that the widow was barred by it, as against an innocent purchaser of other land of the husband.
    This was an action for the dower of the wife in a parcel of land, of which one Barrett, her former husband, was seised during the coverture. The case came before the Court upon an agreed statement of facts.
    On the 2d of January, 1817, Barrett conveyed the same land in trust, to secure the payment of a debt due from him to the tenant, but without a release on the part of his wife of her right of dower. He died on the 13th of January, 1819. On the 15th of April following, an agreement was entered into between James Jones (one of the demandants) and Francis Jarvis, guardians of the children of Barrett, of the one part, and the other demandant, then the widow of Barrett, of the other part, by which other real estate of her deceased husband was assigned to her for her life, “ as and for her dower,” and to be “ holden in full satisfaction of her dower, and subject to all the conditions and liabilities of dower, and with all the privileges and incidents to dower belonging and appertaining.” This agreement was duly executed, and was recorded in the registry of deeds on the 12th of May. On the 14th, the trustee of the land in which dower is demanded, sold it by auction as free of all incumbrance of dowel, and on the 15th executed a deed of conveyance to Brooks, .he administrator of Barrett, who was the highest bidder ; and afterwards on the same day, Brooks executed a deed of conveyance of the same land to the tenant, and received the consideration therein mentioned, deducting the amount of the debt due to the tenant. The tenant was present at the auction, and the deed of the 15th of April was freely exhibited to all persons.
    The land assigned in satisfaction of dower had been conveyed by Barrett, in mortgage, by deed executed and recorded on the 21st of February, 1815, and the mortgagee had entered in the lifetime of- Barrett for breach of the condition. An assignment of the mortgage had been executed and recorded on the 14th of August, 1817. The wife did not at any time before the decease of her husband, Barrett, relinquish her right of dower in the land mortgaged. Of this mortgage and assignment the tenant knew nothing until long after the conveyance to him by Brooks. The demandants alleged that the mortgage and assignment were not known to them, nor to Jarvis, until after that conveyance, with other facts which occurred since that time ; all which the tenant admitted only in case the Court should be of opinion that the demandants would have been entitled to prove them before the jury, notwithstanding his dissent.
    In the event either of rejection or admission of those facts, if the Court should be of opinion that the demandants were barred of their claim of dower in the demanded premises, judgment was to be entered for the tenant upon the case, and for his costs ; but if the Court should be of a different opinion, such judgment and order were to be entered as the Court should direct.
    The cause was argued at March term 1822, and the opinion of the Court was given at this term.
    
      Hoar, for the demandants.
    The deed of the 15th of April was void, because the dower was not assigned by the heirs, but by the guardians. Dower can be assigned only by one who is tenant of the freehold ; Co. Lit. 34 b, 35 a; St. 1783, c. 40; Parker v. Murphy, 12 Mass. Rep. 485; and against whom an action for dower may be maintained. Perk. §§451, 452, 404. The heir must assign though within age. Bull. N. P. 117. Guardians are agents having an authority not coupled with an interest, and cannot by their contract make the wards liable ; Granby v. Amherst, 7 Mass. Rep. 6; Forster v. Fuller, ibid. 59; Thatcher v. Dinsmore, 4 Mass. Rep. 301; at any rate, this deed should have been the deed of the wards by their guardians. Fowler v. Shearer, 7 Mass. Rep. 19. But if the deed had been made by the heirs, it would still be void, because they were not tenants of the freehold, and could not have been sued by the widow, the mortgagee having entered to foreclose in the lifetime of the husband. Collins v. Torrey, 7 Johns. Rep. 282; Groton v. Boxborough, 6 Mass. Rep. 53; Willington v. Gale, 7 Mass. Rep. 139. The widow has been evicted, or has never been seised of her dower, and is entitled to a new assignment. Bustard's case, 4 Co. 122; Co. Lit. 384 b; Hastings v. Dickinson, 7 Mass. Rep. 153; Scott v. Hancock, 13 Mass. Rep. 168. A release of dower to a stranger, as in this case to Jarvis and Jones, is no bar to the action of the widow. Pixley v. Bennett, 11 Mass. Rep. 298. If the widow here must be presumed to have known of the mortgage because it was recorded, so also must the tenant.
    
      G. Sullivan, for the tenant.
    It is not material whether the assignment of dower was good or not, provided the release of the widow was good ; and this is valid for the benefit of strangers, even if voidable as against the heirs. Simpson v. Gutteridge, 1 Mad. Ch. Rep. 609, which cites Carruthers v. Carruthers, 4 Bro. C. C. 513. The only question for the tenant to determine was, whether the widow had released in pais ; not whether she was barred by law- of her claim against the heirs. The doctrine of eviction and new assignment applies only when the assignment is made by the law; the law will correct its own mistakes, but not those of the parties. The tenant was not bound to examine the title to the land assigned for dower. The widow took it as =‘ifivient, and gave her release.
    
      Hoar, in reply.
    The deed was not an absolute release ol ^cr d°wer' She took the land as and for her dower, and entitled to all the privileges and incidents appertaining to dower. She has then all the rights of a widow endowed by the law. The tenant could judge, as well as she could, of the effect of the deed.
   Per Curiam.

One question in this cause relates to the power of a guardian to assign dower. It is a well settled general principle, that a guardian cannot, by his contract, bind the person or estate of his ward. The law is equally clear, that an infant is bound to set off the widow’s dower. There are a great many cases in which infancy gives no privilege, as in the repairing of bridges, Sic. The assignment of dower is a case where the least delay is admitted, and the question is, how is an infant to make the assignment. It cannot be ^better done than by his guardian. The guardian, it is true, cannot bind his ward by deed, but it is not necessary that the assignment of dower should be by deed. It was so held in a late case which came before us on a question of pleading. [Conant v. Little, ante, 189.] The assignment is not a conveyance of an estate, but the dowress, by intendment of law, is in by her husband. A guardian must have power to assign dower, because otherwise the infant would be likely to suffer from want of discretion, if he assigned it himself, or be put to unnecessary expense, if the widow should be obliged to resort to process of law.

As to the clause in the deed, that the widow should take the estate assigned, subject to all the conditions and liabilities, and with all the privileges and incidents, of dower, it is doubtfu. whether it is to be construed so strictly as contended for by the counsel for the demandants, and whether it means any thing more than that she was to hold the land as a dowress. Can it be construed to throw on the tenant the risk of the title in the estate assigned ? No loches are imputable to him. The demandants, on the other hand, had means of knowledge. A stranger was in possession. The least inquiry of him would have disclosed his title ; and the same would also have been found in the registry of deeds.

But there is another view of the case. This was an assignment against common right. An example of such an assignment in the books is, where the heir, on the acceptance of the widow, assigns one manor in lieu of a third part of each of three manors. It is a principle, in such cases, that she takes subject to all incumbrances by the husband. Co. Lit. 32 a, and note 197. If the estate assigned turns out to be more valuable than a third, she may still hold it; and on the contrary, if it proves less valuable, she must bear the loss. The important point in every case of that kind is, that the widow has accepted what could not have been lawfully assigned to her against her will. It is a voluntary release of a legal right for something supposed to be equivalent or more. The release shall stand, though the consideration fails. It is manifest that it would be highly injurious to the public, if an innocent purchaser should not be protected in such a case. He is not bound to look beyond the deed of release.

According to the agreement of the parties, the demandants must be nonsuit. 
      
      
        Baker v. Baker, 4 Greenl. 67; Pinkham v. Gear, 3 N. Hamp. R. 163
     