
    Robinson v. Moon.
    
      Bill in Equity by Widow ¡for Assignment of Doioer.
    
    1. Release or relinquishment of dower by wife. —When the wife releases her inchoate right of dower in lands aliened by her husband, by an instrument executed subsequent to the conveyance by her husband (Rev. Code, § 1626), it is not necessary that her husband should join with her in its execution; and if such release is executed in the presence of two witnesses, and attested by them, its validity is not affected by an informal certificate appended to it by a justice of the peace, who was present when it was executed.
    2. Hame; io/iai will avoid. —A. release or relinquishment of dower by the wife, executed subsequent to her husband’s conveyance, cannot be avoided by her, on the ground that it was procured by fraud, duress, or undue influence, when the proof only shows that she signed it very reluctantly, at the earnest solicitation of her husband and her son, and accepted from the purchaser the stipulated consideration.
    Appeal from tbe Chancery Court of Chambers.
    Heard before the Hon. N. S. Graham.
    The bill in this case was filed on the 1st January, 1874, by Mrs. Martha A. Bobinson, the widow of Jesse B. Bobinson, deceased, against David S. Moon, for the purpose of establishing her right of dower in a certain tract of land, of which the defendant was in possession; praying an assignment of her dower, and an account of the rents and profits after her husband’s death. The said Jesse B. Bobinson, who died in May, 1871, was seized and possessed of the lands during his coverture with the complainant, and on the 26th November, 1866, sold and conveyed them, with covenants of warranty, to one Thomas Staples, under whom the defendant held. The complainant did not join with her husband in this deed; but, on the 13th March, 1868, she executed an instrument of writing as follows: “Know all men by these presents, that I, Martha A. Eobinson, wife of J. B. Eobinson, for and in consideration of the sum of two hundred dollars, to me in hand paid, the receipt whereof is hereby acknowledged, do hereby relinquish, and forever quit-claim, unto Thomas Staples, my right to dower which I now have, or may hereafter have as the widow of Jesse B. Eobinson, in and to the lands described in the within and foregoing deed. In witness whereof,” etc. This instrument, which was written on the back of Eobinson’s deed to Staples, was signed by Mrs. Eobinson, and attested by G. S. Turner and W. S. Denney as subscribing witnesses ; and attached to it was the following certificate:
    “ State of Alabama, Chambers County. I do certify, that I saw Martha A. Eobinson sign, seal, and deliver her dower to Thomas Staples, to the within deed, on the 13th day of March, 1868; and that William Denney and G. S. Turner signed the same as witnesses, in the presence of M. A. Eobinson, and in my presence, this 13th March, 1868.
    “A L. Eobinson, J. P.”
    The complainant alleged, in her bill, that she did not sign this instrument freely and voluntarily, but was forced and compelled to sign it by her husband, who was present at the time, and who threatened to kill himself if she did not sign it; that she had always persistently refused to release her dower in the lands, when importuned by her husband and said Staples ; that her husband was in bad health, very much depressed mentally, and impoverished, and her interest in the lands was her only prospective means of supporting herself and educating her children in the event of his death; that these facts were well known to said W. S. Denney, who was the son-in-law of Staples, and acted for him in procuring the release, and to said G. S. Turner, who had taken from Staples a mortgage on the lands; and that she told them, at the time of signing the release, that it was not her voluntary act — that she would sign it, but it was against her will. The bill alleged, also, that the release was void, because it was not signed by the complainant’s husband as well as herself, and because it was not properly witnessed or acknowledged; and that her dower interest in the lands conveyed, which embraced fourteen hundred acres, was worth $2,000.
    The defendant demurred to the bill, but his demurrer was overruled; and he then filed an answer, denying the allegations of tbe bill, as to any force or undue influence being used to induce tbe complainant to sign tbe release; and averring, that, on tbe contrary, sbe signed it freely and voluntarily, in pursuance of a previous agreement and promise to do so, in consideration of $700, of wbicb sum $200 was paid to ber, and $500 to tbe satisfaction of Turner’s mortgage on tbe land.
    Tbe complainant offered in evidence, besides ber own deposition, tbe depositions of "W. ■ 5. Bobinson, J. B. Bobinson, E. Phillips, and S. C. Burke; and tbe defendant offered bis own deposition, and tbe depositions of A. L. Bobinson, Sarah Bobinson, Georgia A. Bobinson, and W. L. Denney. W. C. Bobinson and J. B. Bobinson, wbo were tbe complainant’s sons, testified to tbe complainant’s repeated refusals to release ber dower in tbe lands, and tbe reasons wbicb sbe gave for ber refusal; and W. C. Bobinson also testified to tbe facts wbicb occurred at tbe time tbe release was signed. A. L. Bobinson, Georgia A. Bobinson, and W. S. Denney, wbo were present wben tbe release was signed, all testified to tbe facts wbicb then occurred. From tbe testimony of all these witnesses, differing only in details, it appears that there was a family gathering, on tbe morning of tbe 13tb March, 1868, at tbe house of W. C. Bobinson, for tbe purpose of arranging or settling in some manner tbe dispute about tbe release of dower, wbicb bad caused some ill feeling among tbe parties interested; and there was some contention as to tbe amount to be paid, and by whom paid. Finally, tbe complainant was taken out of tbe room by ber husband, and, on ber return in a few minutes, she signed tbe release, crying, and saying that sbe was doing what sbe bad always declared she would never do. Tbe complainant herself testified, that ber husband, wben they left tbe room together, threatened to kill himself if sbe did not sign tbe paper.
    On final bearing, on pleadings and proof, tbe chancellor dismissed tbe bill; and bis decree is now assigned as error.
    W. H. Denson, for appellant.
    1. Tbe release was not tbe complainant’s voluntary act, but was procured from ber by tbe importunities, undue influence, and threats of ber bus-band, as disclosed by tbe testimony. Her repeated refusals to release ber dower, and tbe reasons for ber refusal, were well known to all tbe parties; and if sbe yielded at last to ber husband’s threats of self-destruction, tbe law will not bold ber bound by tbe act. "What occurred at tbe time tbe paper was signed is a part of tbe res gestee, and is binding on Staples, wbo was represented by bis agent. — Roberts v. Trawiclc, 13 Ala. 68; Gilbert v. Gilbert, 22 Ala. 529; 18 Md. 305; 4 Har. Penn. 532-39; 3 Casey, 25 ; 5 Rich. Law, S. C. 31-37; 2 Scribner on Dower, 352, § 57. That equity will set aside any instrument obtained under such circumstances, see Lester v. Mahan, 25 Ala. 445; Thompson, v. Lee, 31 Ala. 292. In determining the question of undue influence, or coercion, the age, sex, and relations of the parties, and all the attendant circumstances, must be taken into consideration. — 1 Bouv. Law Die., tit. Duress; Kerr on Fraud, 184,195, and authorities there cited; Williams v. Bac/ley, 1 Ap]3. Cas. L. R. (Eng.) 200; Ardglasse v. Pitt, 1 Yern. 238. See, also, Schraeder v. Decker, 9 Barr, 14; 18 Maryland, 317-20; 2 McCarter, N. J. 368; 1 Story’s Equity, § 239; Perry on Trusts, § 192 ; Fisk v. Stubbs, 30 Ala. 335.
    2. The release was void, because the husband did not join in its execution. The contract was made with the wife, and the consideration was paid to her. “The deed of a married woman, executed by her alone, relinquishing her dower in lands previously conveyed by the husband by his separate deed, does not bar the -widow of her dower.” — 2 Scribner on Dower, 271; Tyler on Coverture, 555; Page v. Page, 6 Cush. Mass. 196; Dodge v. Aycrigg, 1 Beasley, N. J. 82; Fowler v. Shearer, 7 Mass. 14-20. The subsequent conveyance mentioned in the statute, Rev. Code, § 1626, can only refer to conveyances executed after the death of the husband. The whole policy of the law, and all its express provisions, declare the wife incapable of making any valid contract without the concurrence of the husband.
    3. The release was neither executed and attested, nor acknowledged, as by law required.' — Rev. Code, §§ 1626, 1548. A strict compliance with all the statutory requirements was necessary.— Owen v. Paul, 16 Ala. 130; 2 Bouv. Inst. 444 ; 4 Kent’s Com. 609; 2 Mill, S. C. 240; 2 Sim. & Stu. 37; 7 Taunton, 355; 4 Taunton, 213.
    W. H. Barnes, contra,
    
    cited Rev. Code, § 1626; Hoot Sorrell, 11 Ala. 396; Bailey v. Bitten, 52 Ala. 282.
   BRIOKELL, C. J.

The wife’s inchoate right of dower, dependent on surviving her husband, is regarded as a valuable interest, incumbering the estate of the husband, which she may gratuitously renounce, or release to the alienee of the husband, on a consideration moving to herself only. — Hoot v. Sorrell, 11 Ala. 398; Bailey v. Litten, 52 Ala. 282. A purchaser from the husband, contracting for a title free from incumbrances, cannot be compelled to accept a title, which may be affected by the inchoate right of the wife, in the event of her survivorship. — Parks v. Brooks, 16 Ala. 529. A simpie, expeditious mode of barring tbe right, so that it will not embarrass the alienation of lands, and yet protecting the wife against imposition, fraud, or duress, it has been the purpose of the statutes to provide, from the earliest period of our legislative history. From time to time, privy examination of the wife, or her appearance before a court, as an essential requisite of the release or relinquishment of her inchoate right, has been dispensed with, until now, in the same manner in which the husband may convey his estate, the wife may release the right of dower.

Without the aid of express statutory provisions, it is a vexed question, whether the release by an infant feme covert is void or voidable. The statute, to remove all doubt, and in pursuance of the policy of promoting alienation, expressly authorizes a married woman, whether of full age or not, to convey or release her right of dower. — B. C. § 1628. The mode of conveyance or release is by joining with the husband in a conveyance of the lands, or, subsequent to such conveyance, by an instrument in writing executed by her. In either case, her execution must be in the presence of two witnesses, and attested by them, or acknowledged before an officer having authority to take and certify the acknowledgment of deeds. — B. C. § 1626. When the release is by an instrument separate from the deed of the husband, it may be executed by her alone: it is not required that the husband shall join her in executing it. The words of the statute are, “executed by her,” and capacity to make the release is expressly conferred on her. The custom under the statute has been general, for the wife alone to execute the separate release, by which her dower is barred; and it cannot now be disturbed, without affecting titles to real estate. If we had, as we have not, doubts, that when, subsequent to the conveyance of the husband, the wife releases on a consideration moving to her only, her execution of the release is sufficient —is all the statute contemplates — we would feel bound to adopt the construction of the statute which has prevailed in practice. There can be no reason for the husband joining in the execution of the release, except as indicating his presence to protect the wife from deception or imposition. Against these, the statute guards, by requiring evidence that she freely and voluntarily executed the instrument, being informed of its contents. The release affects no interest or right of the husband, except to remove an incumbrance on the estate created by his conveyance, against which, most often, he covenants to warrant and defend. It operates on no estate of his in the lands, for it must be subsequent to the conveyance by which his estate passes. The words of the statute are clear, and the practice has conformed to them.

The release made by the appellant was properly executed. It was signed in the presence of two witnesses, who subscribed their names in testimony of the fact; and this is all the statute requires. The subsequent certificate of the justice of the peace is of no force. It was not intended as a certificate of probate, made by him officially, either on the acknowledgment of the appellant, or on proof by the subscribing witnesses. Being present at the execution, he makes a certificate of the facts, of his own accord. The execution was sufficient, and in all respects valid, when attested by the witnesses; and the subsequent unauthorized certificate of the justice, is a mere nullity.

2. Duress, fraud, or undue influence, inducing the wife into the execution of the release, is not proved, and cannot be lightly inferred. — Bailey v. Litten, supra. We have carefully examined' the evidence, and concur in the opinion of the chancellor, that it is not sufficient to show fraud, duress, or undue influence operating on the appellant. She may have been reluctant to execute the release, but she yielded to the persuasion of her husband and son, and accepted from the alienee of the husband the consideration for which she stipulated.

Let the decree be affirmed.  