
    Jane Potter versus Ephraim Wheeler.
    Tenant in fee conveys an undivided moiety, in which also his wife releases her right to dower; partition is afterwards made by deed. It was holden, that the wife was dowable only in the moiety assigned to her husband in the partition.
    To this action, which was a writ of dower, and in which the said Jane demanded her dower of one undivided moiety of the land described in her writ, the tenant pleaded in bar, that the demandant’s husband, Ephraim Potter, during his lifetime, namely, on the 3d day of December, 1806, being seized in fee simple of a certain farm, of which the premises formed a part, by his deed duly executed, delivered, and recorded, for a valuable consideration therein mentioned, granted and conveyed to one Jacob Potter, in fee simple, an undivided half of said farm ; and that the demandant, in and by the same deed, by her also duly executed, for the valuable consideration aforesaid, did release to said Jacob, his heirs and assigns, all right of dower in and to said undivided half of said farm, granted as aforesaid by her said husband to said Jacob ; who thereupon became seized and possessed of the same in his demesne as of fee, discharged of any right of dower to be claimed by said Jane therein ; that after wards, namely, on the 10th day of June, 1808, it was mutually agreed by said Ephraim Potter and said Jacob, that partition should oe made, and that said undivided half should be severed, and set off to him, the said Ephraim Potter, to hold the same in severalty ; in execution of which agreement the said farm was, in fact, divided into equal moieties by metes and bounds, and *mutual deeds of release of that date were executed in due form of law by the said Ephraim Potter and Jacob, to each other, of their respective moieties ; and the said Ephraim Potter, by his said deed, did grant and release to said Jacob his moiety of said farm, before held in common and undivided, to be for ever after held to the said Jacob and his heirs and assigns in severalty, and by metes and bounds, as described in said deed. And the tenant avers, that the premises of which the demandant claims her dower are part of the moiety, so granted, severed, set off, and released to said Jacob by said Ephraim Potter, as aforesaid ; of which he, the said Wheeler, is, and for a long time has been, seized in fee simple, by good and legal title derived from and under the grant and conveyance of said. Jacob Potter; and that the demandant, by reason of her relinquish ment of her dower as aforesaid, is not dowable in the premises.
    To this plea the demandant demurred generally, and the tenant joined in demurrer.
    Hoar, for the demandant,
    argued, that the husband could not, by any act of his, alter or affect the wife’s right of dower. This right vests from the time of the marriage ; and the demandant, in this case, has all the same rights, in this respect, as if her husband had been seized, at the date of their marriage, of an undivided moiety of the whole farm. An after partition by the husband and his co-tenant ought not to affect, in any manner, the demandant’s claim. If she was to be confined to seek her dower in the part assigned in severalty to her husband, her right might be rendered of no value to her, if he should agree to take his share in wood-land ; and such a partition might be perfectly equal and fair as between the parties to it.
    If a husband exchange lands, of which he is seized in fee, for other lands, and die, the wife has her election, to be endowed either by the lands given or taken in exchange.  There seems considerable analogy in this to the case of partition.
    
      * Fay, for the tenant.
    A partition by deed is equivalent to a partition by judgment in an action or petition for partition, and by such judgment the wife would have been deprived of her claim of dower. Tenants in common have several estates, in all respects except that of possession. Therefore it is, that partition passes no estate ; it affects only the right of possession, and the right to partition is essential to an estate in common. 
    
    If the demandant is not bound by the partition, great inconveniences may follow to her, as well as to others. She will be entitled to one sixth part of each undivided moiety ; and the other party to the partition, having lost part of that which was assigned to him, will be entitled to a new partition.
    In the case put of one half being forest, and thus the wife deprived of all benefit from her dower, she might avoid it for the collusion or fraud, and this would have been a sufficient replication to the plea in bar in this case, had such been the fact.
    
      Hoar, in reply,
    denied that partition by judgment of law would have any effect on the wife’s claim to dower. Partition in every case may be made with the consideration of such claim, and no injustice or inconvenience would follow. In such case the tenant, who holds the release of the dower, would take so much less as would produce an equality.
    
      
      
        Co, Lit. 31,6.
    
    
      
       10 Mass. Rep. 10; 7 Mass. Rep. 503.
    
   By the Court.

The demandant claims her dower in an undivided moiety, having, in the lifetime of her husband, relinquished her claim in the other moiety. The tenant pleads a partition made between the husband and his co-tenant, and claims to hold in severalty free of the claim of the demandant. It is objected to this, that it places the wife’s interest too much within the power of the husband ; and a strong case has been put, of the husband taking his whole share in wood-land, by which the wife would be deprived of all n,-e of or benefit from her dower.

* It seems to be a sufficient answer to this, that it is always in the power of one tenant in common to enforce a partition, and that the husband would be bound by it. Fraud would avoid this, as it would every act, however solemn. There seems to be no good reason, why a voluntary performance of an act, to which the party is compellable by law, should not have the same effect as if produced by compulsion.

It being an incident to an estate in common, that either tenant may be compelled to make partition, the wife of one of them, by her marriage, gains an inchoate right to her dower, subject to such a contingency, by which her interest may be increased or diminished.

Tenant's plea good.  