#### *P. J. Labatut*vs. *John W. Schmidt*

1. Complainant, a denizen citizen under the laws of this State, sold and conveyed, in fee simple, to defendant, a tract of land, with the usual covenant of warranty; but as doubts were entertained, whether complainant’s wife, who had never been naturalized, or become a denizen, under the laws of this State, and who was living and resident in France, might not, in the event of her surviving her husband, be entitled to dower in the land, it was agreed upon, between the parties, that defendant should retain in his hands five hundred dollars of the purchase money, and that Complainant should assign to him five hundred dollars of the amount due him on the French indemnity. íhe balance of the purchase money was paid, and a covenant entered into, in which, after reciting the particulars of the agreement, it is provided that in case of the death of complainant’s wife, before her husband, or a lawful release of her claims being delivered to defendant, he would return the sum retained, with interest from the date of the agreement, and any amount received on account of the assignment. The moyer of complainant’s bill was, that defendant might be decreed to pay him the sum retained, and re-assign the French indemnity, as they were intended to indemnify defendant against a claim which did not then, and never could, exist.

2. But neither fraud nor mistake appearing in the case, and the stipulations having been entered into with a full comprehension of the facts, the court refused to set aside the contract.

3. Complainant’s wife could not be called on to elect between her right of dower-, and such other rights as the law might cast on her, until her husband’s death, nor could she be concluded, either as to law or facts, unless she were a party.

4. The wife being an alien at the time of alienation, would her naturalization now entitle her to dower? *HdcL,*per Johnson, Ch. that it would not.

Johnson, Ch. In 1797, the complainant intermarried with his present wife, Charlotte, both being aliens, and subjects of the king of France. They separated by agreement, and she returned to France, where she has continued to reside ever since, and has never been naturalized, or become a denizen of this State. He remained and has resided here ever since, and in January, 1826, he was admit-ed as a denizen citizen, according to the laws of this State. Being possessed of a farm described in the pleadings, in 1836, he entered into a treaty to sell to the defendant, and it was ultimately agreed that he should make to the defendant a good and indefeasible title, and .that the defendant *422should pay him, in consideration thereof, the sum of $3000. But in closing the contract, a doubt was raised, whether the complainant’s wife, who is still living, would not be entitled to dower in the lands, in the event of her surviving him. To quiet the apprehension of the defendant, and to secure him against any loss he might sustain, it was agreed between them, that the defendant should retain in his hands $500 of the purchase money, and the complainant should also assign to him $500 of the amount due to him on the French indemnity. In pursuance of this agreement, the complainant executed to the defendant a conveyance in fee of the land, with the usual covenant of warranty, and the defendant paid him $2500 of the purchase money. At the same time they entered into a covenant, wherein is recited the bargain and sale of the land, the agreement that the defendant should retain in his hands $500 of the purchase money, and that the complainant should assign to him $500 of the French indemnity, as a security against any claim of his wife; and the defendant covenants on his part, “that in case of the death of his (complainant’s) wife before her husband, or in case of a lawful release of her claims being belivered to me, I will return the said sum of live hundred dollars, with interest from this date, and any sum which I may receive on account of the assignment above mentioned, to the said P. J. Labatut,” (fee. The complainant insists that his wife cannot, on account of her being an alien at the time he purchased and sold the lands, by a possibility entitle herself to dower on them, and that the money retained by the defendant, and the assignment of the French indemnity, is a deposite as indemnity against a claim which did not then, and never can, exist. He, therefore, prays that the defendant may be decreed to pay him the sum retained in his hands, and to re-assign the French indemnity. There is no question, that Mrs. Laba-tut might yet become a citizen of the United States, or a denizen of the State, and the only question raised is, whether, in that event, she would or would not be entitled to dower in land so acquired and alienated by her husband whilst she vvas an alien.

The Act of 1799, 2 Faust, 273, provides, that denizens are entitled to purchase and hold real property in this

*423State, and in all other respects are entitled to like protection of law, as citizens are. He, therefore, was entitled to purchase and convey these lands to the defendant, and the authorities all agree, that his wife could not entitle herself to dower on them, by becoming a denizen of this State, because denization operates prospectively, and cannot affect lands acquired and aliened by the husband before she became a denizen, although she would be entitled to dower in lands of which he was seized at the time. Co. Litt. 33. Cruise, Tit. 6, Dower, chap. 2, sec. 27 — 32. *424Park on Dower, 228-9. But, possibly, she may become a citizen by naturalization. Will that entitle her to dower'? Lord Coke, in laying down the rule above referred to, adds, it is otherwise, if the wife were naturalized by Act of Parliament; and in *Priest*vs. *Cummins,*16 Wendal, 628, *et seq.,*Mr. Justice Nelson, of New York, has very fully examined this remark of Lord Coke’s, in reference to the question now under consideration, and he concludes it is founded on the wording of the particular statutes of naturalization, and not on any principle of the common law, and shews, I think, very clearly, that it has no analogy to the cases in which the wdfe has been held to be dowable, although she was under a legal disability at the time of alienation by the husband, as where the wife is not of age to be dowable, or during her elopement with an adulterer, or had been attainted of felony or treason; for, as he remarks, there is not any incapacity or disability on the person, but only a temporáry bar, until the wife shall attain the proper age, reconcilemen to the husband, or pardon by the king, the incipient rights having commenced before. In the case in hand, the wife, being an alien at the time of alienation, she had not even the incipient right of dower — it was altogether prospective and contingent, on the event of her becoming a citizen, and surviving her husband. At the time of alienation, the whole interest, the absolute right in the property, wras in the complainant, and if, by naturalization, the wife could entitle herself to dower, it would have a retrospective operation, contrary to the universally received opinions of right. It is said that the court ought not to enforce the payment of the money, as any judgment it can give will not be a bar to the wife’s remedy at law, and especially in a doubtful matter, as the law courts would not be bound by a decision here. This court, it is true, is bound to follow the law courts, but I will not anticipate that they will decide against what I take to be the law, nor ought this court to be deterred from the discharge of its duties, in the anticipation that it may not meet with the approbation of the law courts, in a matter which, as in this case, has not been adjudicated there.

The risk against which the contract set out in the *425pleadings was intended to provide, has not, and never can arise, and it is, therefore, ordered and decreed, that the defendant do pay to the complainant five hundred dollars, with interest from 22d November, 1836, and that he account to the complainant for any money that he may have received on account of the assignment of the indemnity due to him by the French Government, set out in the said contract, and if none, he re-assign the same to complainant. The parties, each, to pay their own costs.

The defendant appealed from the decree of the Chancellor in this case, and moved to reverse the same, upon the following grounds.

1. Because the parties having entered into an express contract of indemnity against the claims of dower, which, by possibility, might be set up by the wife of the complainant, this court will not undertake to abrogate the same, except upon full proof of fraud or mistake; much less, where there is, as in the present case, not even an allegation of such fraud or mistake.

2. Because, even should the court undertake to interfere, it would be manifest injustice to the defendant, to take away his indemnity, by a decree in the present case, in which the wife is not a party, and which would, therefore, not be conclusive against her.

3. Because the wife of the complainant may, by possibility, acquire a right or claim of dower to the lands sold, and the defendant has a right to his indemnity against even a doubtful claim.

4. Because the decree is, in other respects, erroneous, and ought to be .reversed.

*Memminger &*Jervey, for appellant.

*Petigru & Lesesne,*contra.

Curia, *per*Johnston, Ch.

It is impossible to sustain this bill, without abrogating the express and well understood contract of the parties. There is no fraud or mistake in the case. The stipulations were entered into, with a full comprehension of the facts. It was understood that Madame Labatut was living, and might, by possibility, set *426up a claim for dower in case she should survive her hus» band; and the contract was made to secure Dr. Schmidt against all danger from that claim,

It is a very doubtful question, whether she may not hereafter entitle herself to dower, by becoming a natural» ized citizen. The question is very well discussed in the case of *Priest*vs. *Cummings,*referred to by the Chancellor, It nnay be, that the uniform current of authorities, asserting the retro-active efficacy of naturalization in England, refers to the express terms of the Acts of Parlia* ment; and that naturalization by judicial proceedings under the Acts of Congress, may have a different effect, On this poipt, it is not necessary to give any opinion here,

It is impossible to determine this point so as to conclude Madame Labatut, -without making her a party. That cam not be done. Her’s is yet a merely contingent interest. No right of dower has yet accrued, or may ever accrue, to her. Nor can she be called on to elect between that right, and such other rights as the law may cast upon her, until her husband’s death ; when she can exercise her discretion most beneficially to herself, under the circumstances which will then actually present themselves to her con» sideration.

She cannot be concluded, either as to law or facts, unless she were a party here, and as she cannot be effectually made a party or concluded, we have no right to strip Dr, Schmidt of the indemnity, for which he has expressly stipulated. We cannot set aside the express contract, nor change its terms, nor take away the security which it confers on the purchaser, unless we had it in our power to give him an equal security, by a decree, protecting him against the claim of the supposed dowress.

It is ordered that the decree be reversed, and the bill dismissed with costs,

Harper and Dunkin, Chancellors, concurred.

Johnson, Oh, I still entertain the opinion expressed in the Circuit Court decree, and dissent from this opinion,