
    Mary Irving, as Trustee, Resp’t, v. James J. Campbell, Appl’t.
    
      New York Superior Court, General Term,
    
    
      Filed October 25, 1888.)
    
    
      i. Proof of acknowledgment of deed by subscribing witness—1 Rev. Stat., 756, § 12.
    The statute, 1 Rev, Stat., 756, § 12, requires that when an acknowledgment of a conveyance is proved by a subscribing witness, the witness “shall state his own place of residence, and that he knew the persons described in and who executed such conveyance;’- and also requires that an officer taking an acknowledgment shall endorse on the conveyance a certificate signed by himself, setting forth, among other things, the names of the witnesses examined before him and their places of residence. Held, that if the official certificate does not follow the precise words of the statute, it . does not show a failure to substantially comply with the provisions, or that the .object and. purpose of the statute has not been reached in wnai . was actually done. Clerical errors, changes in phraseology, or meaning of words clearly not of the substance of the statute may be disregarded.
    
      2. Same—What clerical errors mat be disregarded.
    In the case under consideration, the witness, who for several terms had been a surrogate in the city and county of New York, was a well known resident of that city. He had himself formerly owned the property in question and conveyed the same t > one L. The deed by which such conveyance was made being on record, and the witness described in such deed as of the city and county of New York, and his acknowledgment to the execution of that deed being made before the same notary public before whom he afterwards appeared to testify to the execution of the deed from L. to I In view of these facts, Held, that the omission to state the residence of the subscribing witness in the certificate of the notary, must be regarded as technical.
    3. Same — What mat be considered let deciding whether a paper is PROPERLT RECORDED.
    For all the purposes which a recording act is intended to serve, the whole record concerning a parcel of land anterior to the conveyance, the sufficiency of the record of which as a notice to subsequent purchasers is challenged for defects, of the nature of those in this action, should be considered to determine whether the entire record does not explain evety defect, however formal, and afford ample notice of the state of the title, and of every fact under the law necessary to be known by one who, in good faith, seeks to become a purchaser of the same real estate
    4 Recording—Instrument undult registered not notice.
    In the state of New York a deed or other instrument unduly registered, either from want of a valid acknowledgment or otheiwise, is not notice to subsequent purchasers or mortgagees. Following Peek v. Mallams, 10 N. Y„ 509.
    5 Same—Unrecorded deed good between parties and those having NOTICE.
    A conveyance of land, although unrecorded, is good and effectual between the parties thereto and their heirs, and as to all others who had knowledge or notice of the conveyance.
    6. Evidence—Lost unrecorded deed mat be proved bt paroi.
    The existence and quality of a lost conveyance, although unrecorded, may be proved by paroi.
    7. Title to real propertt—Presumption prom open and undisturbed
    POSSESSION OF.
    Lawrence, who lived several years after he parted with title to the land in question, upon his conveyance, yielded the premises to his grantee, Mrs. Irving, who has continued in actual and undisturbed possession ever since. No claim has been interposed by any person adverse to her right. The record shows no conveyance in opposition to or hostile to her title. Held, that such open possession, with claim of title of itself, constitutes notice to all persons; that it is not reasonable to suppose, under all the facts of this case, that there is in existence any purchaser in good faith from Lawrence other than Mrs. Irving With an unrecorded deed.
    8 Same—Cloud upon title—What constitutes.
    Many things may be supposed, and many conjectures entertained, but to be effectual as casting a cloud upon title to land they must be reasonable. There must be a real question and a real doubt The doubt must be shown to be reasonably based on facts proved to exist, something more than a mere possibility
    9 Same—Bare possibilitt that defect mat be discovered not a cloud on title—Specific performance of contract to purchase.
    The law does not regard a bare possibility that a title maybe affected by existing causes which may subsequently be developed, when the highest evidence of which the nature of the case admits, evidence amounting to moral certainty is given. That no such cause exists will not be regarded as a sufficient ground for declining to compel the purchaser to perform his contract.
    10. Trust to convey real property not vallo.
    The trust to convey real property is not within the classes of allowable express trusts established by the Revised Statutes
    11. Remainder—When vested.
    Where a remainder is limited subject to the exercise of the power of appointment by which it may be defeated, such remainder will be held to be vested though a defeasible remainder.
    12. Dower—May be released by separate instrument.
    The wife of T., by an instrument for a valuable consideration, released and conveyed to L., the grantee of her husband, all her right, title, interest, dower in and to the premises in question The instrument executed by her recited the fact of the conveyance of the land by her husband to L.. and was evidently designed to complete and confirm it in so far as she was concerned, and for the consideration expressed therein to release and extinguish her claim of dower Held, that it released the land from all claim of dower in her favor in law and equity, that although a release ■ to a stranger would have been void, a release executed by the wife di rectly to the purchaser in connection with her husband's deed, would free the premises from her dower right and give a good title.
    Appear from a judgment entered upon a report of a referee.
    There is no dispute of the facts in the case. No evidence was offered by the defendant. This is an action by the. plaintiff, as vendor, to compel specific performance by the defendant of a contract for the sale of a certain lot of land in One Hundred and Twenty-third street, in the city of New York.
    On the 17th day of August, 1861, John Wharton, of the city of New York, and his wife, being possessed of the , property in question, conveyed the same to John R. Anderton, by a deed dated on that day, duly acknowledged and recorded, and set out in the complaint. John R. Anderton, on the 22d day of March, 1869, conveyed the property to Gideon J. Tucker, surrogate of the city of New York. On June 22, 1870, Gideon J. Tucker conveyed the property to Thomas Lawrence, by an instrument duly acknowledged and recorded. Tucker’s wife did not join in this deed, but on the 5th day of July, 1870, by a separate instrument duly acknowledged and recorded, she conveyed her rights to- Thomas Lawrence, the grantee of Gideon J. Tucker. On the 23d day of November, 1871, Thomas Lawrence, unmarried, conveyed the property to Eliza Irving. This deed was executed by Thomas Lawrence, m the presence of Gideon J. Tucker, and was proved by Tucker as subscribing witness, in the following form:
    “State op New York, ) .
    City and County of New York.) "'
    “ On the 23d day of November, in the year one thousand eight hundred and seventy-one, before me personally came Gideon J. Tucker, to me personally known, the subscribing witness to the foregoing instrument, who being by me duly sworn did depose and say that he knew Thomas Lawrence, of the city of New York, to be the individual described in and who executed the foregoing instrument, and who acknowledged that he executed the same to the said Tucker ; that he saw said Thomas Lawrence execute and deliver the same, and that thereupon he, the said Tucker, became a subscribing witness thereto.
    ARNOLD A. RENSON,
    
      Notary Public,
    
    
      C. & C. of N. Y.”
    
    And on the same day it was recorded in the office of the register of the city and county of New York, as appears by the following certificate attached to the deed :
    “ Office of the Register of Deeds, etc., )
    City and County of New York. j
    “I have compared the annexed copy with an instrument recorded in this office on the 23d day of November, A. D., 1871, at 3 o’clock 15 minutes P. m., in Liber 1306 of conveyances, page 66,. and certify the same to be a correct transcript therefrom, and of the whole of said instrument.
    ‘ In testimony whereof, I have hereunto subscribed my name and affixed my official seal, this 18th day of August, 1875.
    [l. s.] PATRICK H. JONES,
    
      jRegister.”
    
    Eliza Irving subsequently married George Jonas. On July, 1875, George W. Jonas and Eliza Jonas, his wife, formerly Eliza Irving, executed a deed to Mary Irving of the property in question in trust.
    A doubt existing as to the right of the trustee to sell under this agreement, excepting for the payment of taxes, an action was brought in the New York superior court, in which a judgment was rendered reforming the trust deed, giving the trustee full power to sell, all the parties interested in the trust being present, and all the parties to the action, of age.
    On the 21st day of April, 1885, the trust deed was, by order of the court, reformed, and the property conveyed to Mary Irving, trustee, with power to sell.
    On the 18th day of April, 1887, Mary Irving, the plaintiff as trustee, entered into a contract with James J. Campbell, the defendant, for the purchase and sale of the property in question. On the 20th day of May, 1887, in pursuance of the terms of the contract, the plaintiff tendered the defendant a deed duly executed. To the form or execution of this deed there was no objection.
    Defendant’s objections to the title as tendered by the plaintiff were three:
    1. There is no legal evidence of the transfer of the title to Thomas Lawrence, through whom the plaitiff claims.
    This is the only objection that was specifically raised by the defendant at the time of the closing of the title.
    2. That the plaintiff has no power to convey under the trust created in the deed from whence her authority as trustee proceeds.
    This objection was raised upon the trial for the first time. It did not appear in the pleadings, and was not raised as an objection when the title was refused.
    3. That the plaintiff’s title is defective, in that Gideon J. Tucker did not join with his wife in the transfer of the deed.^
    This objection was not taken until the close of the trial of the action, after Gideon J. Tucker, the husband, had been examined as a witness for the plaintiff.
    The following is the opinion of Hooper 0. Van Vorst, referee:
    H. O. Van Vorst, Eeferee—This is an action by the vendor to compel the specific performance by the defendant of a contract for the sale and purchase of land. The objections to the/ plaintiff’s title interposed by the defendant necessitates an examination of the recording acts. The statute declares that an unrecorded deed shall be void as against any subsequent purchaser “ in good faith and for a valuable consideration” of the same real estate. 1 E. S., 756, § 1.
    To entitle a conveyance of land to be recorded,the statute prescribes and limits the proof needed to establish its execution. The execution of the conveyance may be acknowledged by the person executing the same before an appropriate officer or it shall be proved by a subscribing witness thereto. When proved by a subscribing witness which is the case under consideration, the witness “shall state his own place of residence, and that he knew the person described in and who executed such conveyance.” IE. S., 756, § 13.
    : It is further provided that the officer taking the acknowledgment shall indorse on the conveyance a certificate signed by himself, setting forth among other things the names of the ¡witnesses examined before him and their place of residence. 1 E. S., 759, § 15.
    In the case under consideration the deed itself, the execution of which is claimed to have been proven by Gideon J. Tucker, a subscribing witness thereto, is lost, and a certified copy of the same taken from the record thereof in the register’s office has been received in evidence. The sufficiency of this record as evidence is objected to by the defendant’s counsel upon the ground that the residence of the subscribing witness is not stated in the copy certificate written on the certified deed.
    There is a want of harmony in the decisions in respect to effect of a record of a conveyance, the official proof of the execution of which, to entitle it to be recorded, is not a substantial compliance with the provisions of law directing the recorn of deeds. In Pomeroy’s Equity Jurisprudence, vol. 2, § 600, it is said: “ That the irregular, defective or improper recording of an instrument, although clearly not a constructive notice under the statute, may be sufficient to put a purchaser upon enquiry and so constitute an actual notice.” Upon an examination of the cases that learned author says, “that there is upon that point a conflict of judicial opinion.” But in this state it is held that a deed or other instrument unduly registered, either from want of a valid acknowledgment or otherwise is not notice to subsequent purchasers or mortgagees. Peck v. Mallams, 10 N. Y., 509. 4 Kent’s Com., 174.
    But that the official certificate does not follow the precise words of the statute, does not show a failure of a substantial compliance with its provisions, or that the real object and purpose of the statute has not been reached in what was actually done. Clerical errors, changes in phraseology, or omission of words, clearly not of the substance of the statute, may be disregarded. West Point Iron Company v. Reymert, 45 N. Y., 703.
    In Jackson v. Gumaer (2 Cow., 552, 556), the officer taking the acknowledgment of the execution of the instrument ■ certified that “before me came De Witt C. Rose, to me known and acknowledged,” etc. The words “to be the person described in, and who executed the deed,” required by the statute to be stated in the certificate, were omitted: It was urged that this omission was fatal. The court, per Savage, C. J., held the objection to be “technical,” and it was disregarded. Jackson v. Osborn, 2 Wend., 555.
    The value and importance of the particular words omitted from the certificate in the case under consideration, under the recording acts, has not been the subject of judicial decision.
    It is a new objection. But without violating the principle which has been heretofore applied in determining what was a substantial and proper compliance with the terms of the statute, and what omissions, in the form of a certificate might be regarded as unsubstantial, it may be properly held that the above decisions cover the case in question. Such certificates should be liberally construed, and clearly, with reference to the object and purpose to be reached. Smith v. Boyd, 101 N. Y., 477; Cuykendall v. Douglas, 19 Hun, 582; Hunt v. Johnson, 1 N. Y., 311.
    The purpose of the statute is clear, and everything that effectuates that purpose is material and cannot be disregarded. The statute provides that to entitle it “to be recorded ” the deed shall be acknowledged by a subscribing witness thereto. 1 R. S., 756, § 4.
    When taking the acknowledgment of the execution of a deed by the grantor himself, the officer must know, or by evidence be satisfied, that the person making such acknowledgment is the individual described in and who executed the same, and with the same principal object in view, when the proof is made by a subscribing witness, the officer is not to take the proof unless he is personally acquainted with the witness, or has satisfactory evidence that he is the same person who was a subscribing witness to the instrument. IE. S., 756, § 12, supra.
    
    The chief and substantial thing is, however, that the officer shall, in all cases, be satisfied that the execution of the deed is the act of the person described in and who executed it.
    In order to be satisfied of the identity of a subscribing witness, it is not absolutely necessary that the officer should know his residence. In the case under consideration the witness, who for several terms had been a surrogate in the city and county of New York, was a well known resident of that city. The real end the statute sought to reach for all purposes, seems to have been gained by the certificate, a copy óf which is endorsed on the certified copy deed.
    
      Hellreigel v. Manning (97 N. Y.. 56), which was an action for specific performance, holds that defects in the record or paper title may be cured by paroi evidence.
    But the record of the title to this property remaining in the register’s office, to which no possible objection can be made, and of which every person dealing with it is bound to take notice, deprives the objection taken in this case of any force. It supplies every fact alleged to be wanting in the certificate. The subscribing witness, Gideon J. Tucker, bad himself formerly owned this property, and in 1870 he conveyed the same to Lawrence. Tucker’s deed to Lawrence is on record. In it Tucker is described as of the city and county of New York, and his acknowledgment of the execution of that deed was made before the same notary public before whom he afterwards appeared to testify to the execution of the deed from Lawrence to Irving.
    In view of these facts, the objection taken in this case must,be regarded as ‘‘ technical.”
    For all the purposes which the recording act is intended to serve, the whole record concerning a parcel of land anterior to a conveyance, the sufficiency of the record of which as a notice to subsequent purchasers is challenged for defects of the nature of those involved in this action, and which are, in truth, unsubstantial, should be considered in determining whether the entire record does not supply every defect, however formal, and afford ample notice of the state of the title, and of every fact under the law necessary to be known by one who, in good faith, seeks to become a purchaser of the same real estate.
    But if the view above expressed should not appear to be well founded, still sufficient appears in the evidence to show that the plaintiff has a good and valid title to the premises in question, and that no sufficient reason exists in law or ■equity for refusing a decree in her favor for a specific performance of the contract. The title of Lawrence is not questioned. His deed to Eliza Irving, through whom plaintiff claims, is lost, but with the disappearance of her deed the title of the grantee in the premises was not destroyed. Granted that the deed from Lawrence to Irving has never been recorded, or that the record was ineffectual for any purpose, the plaintiff’s case is yet made out with a reasonable certainty. A conveyance of land, although unrecorded, is good and effectual between the parties thereto, and their heirs, and as to all others who had knowledge or notice of the conveyance.
    The existence and quality of a lost conveyance, although unrecorded^ may be proved by paroi. Lawrence conveyed to Eliza Irving in 1871. That is clearly shown by the testimony of Gideon J. Tucker, the subscribing witness to the deed, who was examined as a witness before me, and the copy deed taken from the records was satisfactorily proven to be a copy of the conveyance to her. Lawrence, who lived several years after he parted with the title upon his conveyance, yielded the premises to his grantee, Mrs. Irving, who has continued in actual and undisturbed possession» ever since. Such open possession with claim of title of itself constitutes notice to all persons. Brown v. Volkening, 64 N. Y., 82; Pope v. Allen, 90 N Y., 298.
    Mrs. Irving’s right and title has never been disputed. No claim has been interposed by any person adverse to her right. The record shows no conveyance in opposition or hostile to her title. Is it reasonable to suppose under all the facts of this case that there is in existence any purchaser in good faith from Lawrence othér than Eliza Irving with an unrecorded deed? Many things may be supposed and many conjectures entertained, but to be effective as casting a cloud upon title to land they must be reasonable. “ There must be a real question and a real doubt.” Fleming v. Burnham, 100 N Y., 10
    
      To this might be added “real persons” and not imaginary ones, who were at least entitled to make a fair claim adverse to the plaintiff. The doubt must be shown to be reasonably based on facts proved to exist; something more than a mere possibility. The rule laid down in Schermerhorn v. Niblo (2 Bos , 161), is applicable here. “ The law does not regard trifles a bare possibility that the title may be affected by existing causes which may subsequently be developed, when the highest evidence of which the nature of the case admits, and evidence amounting to moral certainty is given, that no such cause exists, will not be regarded as a sufficient ground for declining to compel a purchaser to perform his contract.”
    A right in favor of no person has been asserted. None is shown to exist or even to be claimed. And under the facts it is the wildest conjecture that any could be based upon any substantial foundation. It is scarcely possible even that the testimony of the subscribing witness Tucker, as to the execution by Lawrence of the deed to Irving, could ever be contradicted or shown to be false. Every presumption, legal and moral, is in favor of its truthfulness. And that evidence settles the question of the plaintiff’s title in her favor beyond any reasonable doubt.
    I think that there is no weight in the second objection interposed by defendant.
    It is clear that under the reformed trust deed the plaintiff had full power and authority to make a valid conveyance of the fee of the premises in question.
    I think it is equally clear that the proceedings in the action brought in the superior court to reform the original deed of trust were not vitiated by reason of the alleged defect of parties to the record.
    It is claimed by the defendant that immediately upon the execution and delivery of the original deed of trust, an expectant estate was created in the heirs of Irving Emmons, contingent indeed, but one which no act of the grantor, the trustee, or Irving Emmons could have defeated, and that in consequence, the heirs of Irving _ Emmons gained rights which could not be altered or extinguished by any action to which they were not parties.
    Even if it be admitted that the rule laid down in Nodine v. Greenfield (7 Page, 544), Williamson v. Field (2 Sand. Ch., 533), that in the case of remote limitations of the fee it is sufficient to bring before the court the persons in ess& who have the first estate of inheritance, together with the persons having all the precedent estates and prior interests, would not apply to actions to reform a deed of trust, conferring upon persons in esse contingent rights through remote limitations of the fees, I yet conclude that the objection is not well taken, for the reason that the heirs of Irving Emmons, if they take at all, would not take as purchasers, but by descent.
    The estate of the trustee is one limited in duration by its requirements,and when the purposes of the trust are fulfilled, and the duties of the trustee are ended, the estate in the trustee ceases. And while so much of the trust declared in the original deed of the trust as empowered the trustee to collect the rents and profits of the premises in question, and to pay them over to Eliza Jones during her natural life, was a valid trust under the statutes of this state (1 R. S., 728, § 55, subd. 3), yet it required for its accomplishment an estate in the trustee for the life of the beneficiary only.
    The remainder of the trust was clearly not valid as an express trust. Cooke v. Platt, 98 N. Y., 35. The trust to convey real property not being within the classes of allowable express trusts established by the Revised Statutes.
    ' It will not be necessary for me to determine here, however, whether the direction to the trustee to convey the fee of the premises in question, upon the death of Mrs. Jones, conferred upon the trustees a valid power in trust, the fee of the premises remaining in the grantor and his heirs, subject to be divested by the execution of the power. Clark v. Crego, 47 Barb., 614; S. C., 51 N. Y., 646; Hotchkiss v. Elting, 36 Barb., 38. Or whether, on the contrary, the trust was executed by the statute and a legal estate in remainder passed at once to the beneficiaries. 1 R. S., 727, §§ 45, 47, 49.
    Under either construction, the heirs of Irving Emmons, would take, not as purchasers, but by decent. If, by force of the statute, the limitations in the original deed of trust, created the local estáte by way of remainder in Irving Emmons, such a remainder would be clearly within the statutory and common law definition of a vested remainder. While if, on the contrary, the provisions of the trust deed created a valid power in trust, although prior to the execution of .this power, the appointee would take no estate in the land, either legal or equitable, yet upon its execution, the appointee would derive his title, not from the person exercising the power, or from the deed in the execution of the power, but from the trust deed itself. And the appointee would then take as though the estate had been directly limited in the original deed, and not’ mediately through the power. The character of the limitations, and not the fact that he derived an estate through .the power, would determine the character in which the appointee took his title, whether .as .purchaser or as' heir. And the legal -effect of the limitations being, as we have seen, to create in Irving Emmons a vested remainder, which his heirs would take, not by purchase, but by descent, the interest of Irving Emmons under the power became a vested, and not a contingent interest, which upon his death, in the life-time of Eliza Jonas, would descend to his heirs or pass to his grantees.
    And the consequence would not be affected by the power of appointment, conferred upon Eliza Jonas by the deed of trust. For it is well settled that where a remainder is limited, subject to the exercise of a power of appointment by which it may be defeated, such a remainder will be held to be vested, though a defeasible remainder.
    The further objection to the title is taken by the defendant, that Gideon J. Tucker did not join with his wife in the-release of her dower right in the premises.
    This objection was not taken until the close of the trial of the action, and after Gideon J. Tucker, the husband, had been examined as a witness. Had it been suggested as important, it is probable that his assent and signature-to the release could have been obtained upon the spot.
    But I do not regard the objection as sufficient to defeat the plaintiff’s right.
    The wife of Tucker, by a separate instrument, dated the 5th day of July, 1875, for a valuable consideration, released and conveyed to Lawrence, the grantee of her husband, all her right, title, interest, dower, and right of dower, in and to the premises in question.
    The instrument executed by her, recited the fact of the-conveyance of the land by her husband to Lawrence, and was evidently designed to complete and confirm it in so far as she was concerned, and for the consideration expressed therein, to release and extinguish her claim of dower.
    I fail to see why such act of the wife, although subsequently performed, may not be regarded as an adoption of and as joining in her husband’s conveyance.
    A release to a stranger would have been void. But Lawrence was her husband’s grantee, and was the owner of the-fee.
    
      JElmendorf v. Lockwood (57 N. Y., 322) and Wittkaus v. Schack (105 N. Y., 332; 7 N. Y. State Rep., 345) are recent cases bearing upon this subject, but they do not, under their facts, present the precise case raised by the evidence before me.
    In Marvin v. Smith (46 N. Y., 571), Allen, J., says:*'fAn inchoate right of dower may be released to the grantee of the husband by a proper conveyance executed and acknowledged in the form prescribed by statute, but the right cannot be transferred to a stranger, or to one to whom, the wife does not stand in privity.”
    
      In some of the states it has been held that the release of a wife’s inchoate right of dower can only be made through her execution of her husband’s deed, m which she should 'join. Leading Cases in the American Law of Property, by Sharswood, vol. 1, pp. 370, 347.
    But Savage v. Crill (19 Hun, 4) refers to the case of the Albany Insurance Co. v. Bay (4 Corns., 9) as holding “that in this state a married woman may convey her lands, or any interest she may have in land, bjr deed duly acknowledged, although her husband do not join therein,” and decides that such rule “would seem to be the same in respect to a release of dower.”
    
      Savage v. Crill holds that a release by a wife of her inchoate right or dower “to the holder of the title,” even if executed by her alone, would be valid. S. C., 80 N. Y., 630.
    
      Maloney v. Horan (49 N. Y., 112, 117), by a clear implication, holds the same doctrine.
    Folger, J., referring to Carson v. Murray (3 Paige, 483), which holds that a wife cannot execute any vahd release of her dower in the real estate of her husband in any other way than by joining with him in a conveyance to a third person, says: “The release must at all events accompany, or be incident to the conveyance of another.”
    The release and conveyance executed by the wife of Gideon J. Tucker, although made after he had conveyed away the title, may in truth be regarded, as it was clearly intended by the parties, as “incident” to her husband’s deed, and as made in “ conjunction ” therewith.
    In a subsequent case, the Merchants Bank v. Thompson et al., 55 IsT. Y-,, 7, Folger, J., gives a clearer expression to the same idea, and after stating that a quit-claim or release by a married woman to a stranger to the title is ineffectual to divest her of an inchoate right of dower, adds. “But a release from the wife, executed directly to the purchaser, in connection with the sheriff’s deed, will free the premises, and give a good title.”
    That statement appears to cover this case. Bobbins v, Kinzie, 45 Ill., 354.
    The full and uncontrollable right of a feme covert to her property is supposed to be secured by the statutes giving to her the right to enjoy and dispose of it.
    The inchoate right of dower of a wife is property. Its value is appreciable, and can be ascertained. Her husband cannot deprive her of it.
    The value of her separate interest in the land in question, which had been conveyed away by her husband, it was proper that she should realize, if she desired to do so, before his death. Upon the execution of her separate deed, she received its value, as a consideration for its delivery, and her act, I am persuaded released the land from all claim of dower in her favor in law and equity.
    . I cannot, therefore, conclude that any of the objections taken by the defendant are well-founded, or cast any reasonable doubt upon the goodness of the plaintiff’s title to the land.
    There should be judgment in favor of the plaintiff for specific performance as demanded in the complaint.
    
      Dill, Chandler & Seymour, for resp’t; James P, Campbell and Alexander Thain for app’lt.
   Per Curiam.

Judgment is affirmed on the opinion of the referee, with costs,  