#### Rebecca Spiva *vs.*Singleton Jeter.

A contract to marry on condition that the wife should receive no portion of the husband’s property which he then possessed *:*— Held, not to preclude her from demanding dower even from a purchaser — it appearing that the husband had not performed his duties as husband, but on the contrary had deserted his wife for ten years before his death, leaving her without means of support except from her daily labor.

BEFORE DUNKIN, OH., AT UNION, JUNE SITTINGS, 1857.

A statement of tbis case is contained in tbe circuit decree, wbicb is as follows:

DUNKIN, Ch. This bill was filed by the widow of David Spiva, who died in the West, some two years since. The purpose is to obtain dower in a tract of land, called the David Myers tract, conveyed by the husband during the coverture, to wit: on the 16th Nov., 1846, to A. Y. Jeter, the father of the defendant. It appears that the plaintiff, at the time of her intermarriage with David Spiva, was a widow, with children by a former marriage with - Lee, and that David Spiva was a widower, with children by a previous marriage. Before the solemnization of the marriage, and in contemplation of that event, to wit., on the 26th September, 1844, the following agreement was signed by the parties, to wit: “David Spiva, Rebecca Lee — agreement. South Carolina, Union District, Sept. 26, 1844. A marriage contract, made and entered into this day, between David Spiva, on the one part, and Rebecca Lee, of the other part, witnesseth — the said parties do agree to marry, on condition that the said Rebecca Lee and her children are to receive no portion of the money or property of the said David Spiva, held or pos*435sessed by Mm at tbis time. (Signed,) David Spiva, Rebecca Lee, x ber mark. Witnesses, O. P. Jenkins, W. C. Lee.” This paper was proved by Wm. C. Lee, one of the subscribing witnesses, on the 17th Nov., 1846, and recorded in the Register’s office for Union District, on the 26th Nov., 1846.

On the part of the defendant, it was submitted that this paper, though not a legal estoppel, was an equitable bar to any claim of dower on the part of the plaintiff. The land was part of the property in possession of Spiva when the agreement was made, and was proved and put on record cotemporaneously with the conveyance to defendant’s ancestor. On the other hand, it was urged that dower is a legal right, and always highly favored; that the paper on which the defendant relies is not under seal, is without consideration, and is no bar to the enforcement of the plaintiff’s right. In the case of *Massey*vs. Massey, heard by Chancellor Wardlaw,’ at Lancaster, June, 1855, Sarah Miller and Benjamin Sykes Massey entered into an ante-nuptial agreement of this character, which was sustained by the Chancellor in a suit between his surviving widow and his personal representative. The agreement however, was under seal. Both parties were in possession of considerable estates, and the release was mutual. It was an amicable proceeding, for the purpose of obtaining the j udgment of the Court, and in which both parties acquiesced. But it was a case for judgment, and not of consent. In this case, the agreement between David Spiva and Rebecca Lee, is very inartiffcially prepared ; even less artificially than the copy represents.

But the intention may nevertheless be collected. Both parties had children. Spiva had some property ; while it is fair to infer from some of the testimony, that the dowry of Mrs. Lee was not in worldly chattels. The consideration was marriage; and this is held to be a valuable consideration.

■ By it the husband becomes immediately entitled to his wife’s *436personalty in possession, and to a certain qualified interest in ber whole estate of every kind. The wife acquires a right to support and maintenance, and an inchoate interest in all the real estate of which he is seized during the coverture, in addition to the claim of protection, comfort and sympathy, which the relation implies. Spiva undertook to maintain and fulfil all the obligations of a husband, and she those of a wife, with the understanding that neither she nor her children were to receive any part of the property he then held. The argument of the defendant’s counsel appears well taken, that this was an agreement to renounce dower or thirds. Although this rested in agreement, yet if the representatives of the husband, or the purchaser from him, might, on bill filed, insist on the performance of the agreement, it would be scarcely deemed desirable to drive the parties to this circuity of action. Assuming that the plaintiff, in consideration of the advantages stipulated for her by the proposed marriage, agreed to renounce or release her claim of dower, was the agreement so fulfilled on the part of Spiva, as to authorize his representatives to demand a fulfilment on her part? The strongest case to bar a wife of dower, is by jointure, according to the Statute, 27 Henry VIII., being a competent livelihood of freehold for the wife, to take effect presently after the death of the husband. But, even in this case, if the jointress is evicted by bad title or otherwise, the statute provides that she shall be remitted to her claim of dower at the common law. 2 Bl. 0.138. Spiva and his wife, lived together about two years. It appears that in November, 1846, Spiva had determined to remove to the West. *“*One morn- *“*ing before daylight, (says the witness Paulina Lee,) Spiva “ rose and called up the plaintiff, and said to her, I’ll tell you *“*what I think. It is better that you go and get you a place “ to live, and take your things and go to it.” Plaintiff went that morning to the house of Joseph Shuttlesworth, and the next morning Spiva took his wagon and moved her to *437Shuttlesworth’s. Witness believed plaintiff was willing to go with her husband to the West. Spiva’s daughter, Adeline, asked witness if her mother was going with them to the West, and at the same time observed to her that “she had better not — that if she started, she would never get to her journey’s end.” Witness informed her mother of this declaration the same day: After plaintiff had removed to Shuttlesworth’s, she went back to Spiva before he left. None of the family would speak to her, except the two youngest children and Davis’s wife. Spiva spoke to her, but witness did not hear the conversation. Spiva was fixed to go away on that day. He left nothing for plaintiff. On her cross-examination, she said Spiva called up plaintiff before day, and told her “ to go and get her a home.” Joseph Shuttles-worth testifies that he was in his field at work when plaintiff came to him and asked leave to put her things in his house. He looked down the road, and saw Spiva’s wagon and negro, who brought her things. He permitted them to be put in his house. Plaintiff seemed distressed, and shed tears at the time. Witness had heard of no interruption in the family. After Spiva left, plaintiff had no means of going to the West. She now lives in a small house near witness, and has no means of support but her daily labor. N. W. Cooper, (the only witness examined for defendant,) proved no reluctance on the part of the plaintiff to accompany her husband to the West, but rather the contrary. The defendant’s counsel objected to her declarations as to the reasons why she did not remove with her husband, and the objection was properly sustained by the Commissioner. Spiva removed to the West, lived there about ten years and then died. No imputation was made against the character, either of Spiva or of the plaintiff.

The Court is obliged to conclude, from the testimony, that in removing to the West, it was either not convenient or not agreeable to Spiva to take with him his wife; and the result of *438his reflections was to call her tip and tell her “ to go and get her a home.” If the plaintiff had refused to accompany him, it would seem very easy to have established this by Adeline, or any 'other inmate of the house, or by any other witness. Thenceforth for ten years, and during the remainder of the husband’s life, the plaintiff was left to find a roof to shelter her, and to earn her daily bread by her daily labor. Under these circumstances, when her legal right to dower has now become perfect, would this Court interfere to enjoin her from prosecuting that right, if she had selected another tribunal ?

The Court is of opinion, that under the circumstances, the heirs of David Spiva would be entitled to no such relief, and that the defendant is in no better situation.

It is ordered and decreed, that it be referred to the Commissioner to assess the plaintiff’s dower according to the principles of the Act of 1824.

The defendant appealed on the ground, because the plaintiff was not entitled to dower in the land in question, and the ante-nuptial agreement is a bar to her dower.

Herndon, for appellant.

Dawlcins, Q-adberry, contra.

The opinion of the Court was delivered by

DuNKIN, Ch.

It is not supposed, or contended, that the paper executed 26th September, 1844, was a release of dower. It was no more than an agreement, and, assuming that the defendant, when he purchased from the plaintiff’s husband, was made acquainted with this ante-nuptial arrangement, he must be presumed to have understood the character, and effect of the instrument. The obligation of the plaintiff to release any interest she might acquire, rested in contract, and *439depended on the fidelity with which the conditions of the contract were fulfilled by her future husband. ,Under the circumstances detailed in the evidence, neither the husband, nor his heirs, would have any claim- to the interference of this Court, in enforcing the execution of the contract; and the purchaser from him, having a knowledge that the dower had not been released, would have no higher equity to insist on the performance of the agreement; and to invoke the aid of this Court in restraining the plaintiff from the prosecution of her legal rights.

It is ordered and decreed, that the appeal be dismissed.

Johnstok, Dargaw and Wardlaw, CC., concurred.

*Appeal dismissed.*