#### * Susan Gibson *versus*Abraham Gibson and Others.

A settlement made before mamage, by virtue of which the wife is to have an annuity in lieu of dower, does not estop her from demanding her dower.

This was a writ of dower *unde nihil habei,*wherein the said *Susan*demands her reasonable dower in certain lands and tenements, of which her husband was seised during the coverture — the said *Abraham*and others, the tenants, being the heirs at law of the deceased husband.

Besides a plea in bar, which terminated in an issue of fact, the .enants set forth the following indenture, relying upon it as an estoppel to the demand made in the action, *viz.: “*This indenture tripartite, made, &c., between *Abraham Gibson,*of, &c., of the first part, *Susan Spurr,*of, &c., of the second part, and *Nathaniel Dana,*of, Ac., of the third part, witnesseth: Whereas a marriage is intended to be shortly had and solemnized between the said *A. G.*and the said /S'. */S’.;*and whereas, upon the treaty for the said marriage, it hath been agreed that the said *A. G.*shall, at his decease, cause to be paid unto the said *S. S.*the sum of 400 dollars per annum, in .lieu of all dower, or right of thirds, or other claim whatsoever, in *101and to the estate of the said *A. G.,*either real, personal, or mixed; —■ which sum, or covenant for the same, the said *S. S.*accepts in lieu of said dower and thirds, or distributive part of the estate of the said *A. G.:*— Now, therefore, this is to certify what is before declared ; and the said *A. G.,*in consideration of the premises, and of one dollar paid to him by the said *N. D.,*doth hereby, foi him self, his heirs, &c., covenant to and with the said *N. D.,*his heirs, &c., as trustee for the said *S. S.,*that, in case said marriage shall be had and solemnized, as aforesaid, between the said *A. G.*and the said *S. S.,*and the said *S. iS.*shall continue to be the lawful wife of the said *A. G.*during his life, and shall also survive the said *A. G.,*the sum of 400 dollars shall be annually paid to the said iS'. S, in quarter-yearly payments. And the said *S. S.,*for and in consideration of the premises, and of the sum of one dollar paid her by the said *A. G.,*doth hereby covenant to and with the said *A. G.,*his heirs, &c., * that, in case the said intended marriage shall be had and solemnized between the said S'. S', and the said *A. G.,*she will not claim or demand from the estate of the said *A. G.,*his heirs, &c., or either of them, any dower or thirds whatsoever, or any distributive part of, in, or to the same estate of the said *A. G.,*his rights or property what soever, real, personal, or mixed, of which he is or may be seised or possessed, or entitled so to be. And the said *S.*S', doth hereby agree to accept, and doth accept and receive, the aforesaid covenant made by the said *A. G.*to the said *N. D.,*for the annuity as afore said, in full satisfaction and recompense, and in lieu of all dowel, thirds, rights, or claims whatsoever, in and over the estate of the said *A. G.,*real, personal, or mixed, as aforesaid, and doth consent and agree that this instrument is, and shall be, used and pleaded as a full bar and discharge to and from all claims of dower or thirds, as aforesaid, and all distributive part thereof, in and to the estate of the said *A. G.,*saving the right to the annuity as aforesaid. And, moreover, the said *A. G.*doth, for the consideration aforesaid, and in manner as aforesaid, covenant with the said S'. S', that the aforesaid sum of 400 dollars shall be duly paid to her by the heirs or assigns of him, the said *A. G.,*in manner as afore-stated and coy enanted by him with the said *N. D.,*as aforesaid. And the said *S. S.*doth hereby, in consideration of the premises, covenant with the said *N. D.,*trustee as aforesaid, that she will not make any claim or demand whatsoever on the estate of the said *A. G.*for dower, or thirds, or distributive part whatsoever, in consequence of said marriage, saving for the covenant of annuity, as aforesaid; and she doth renounce all other claim in and upon the estate of the said *A. G.,*present or future. And the said *N. D.*doth accept the *102trust and covenant aforesaid ; and, in consideration of the premises, and of one dollar paid him by the said *A. G.,*he doth, for himself, his heirs, &c., covenant and engage with the said *A. G.,*his heirs, &c., that he will use and improve the aforesaid * covenants made to him by the said *S. S.*in the best manner that may be in his power, so as to exonerate the estate of the said *A. G.*from the claim of dower or thirds of the said & X to the estate of the said *A. G.;*and in like manner, he, the said *N. D.,*doth covenant with the said *S. S.*that he will use and improve the aforesaid covenants made to him by the said *A. G.,*for the said annuity, to her benefit, so as to secure the same in the best manner to her; provided, however, and it is to be understood and agreed, that the said *N. D.,*his heirs, &c., shall not sustain any personal loss or injury, unless in case of wilful default after due notice and presentation of presents ; and that all costs, charges, and expenses, that shall be incurred by the said *N. D.,*his heirs, &c., in enforcing the covenants aforesaid, shall be paid by the party applying for the same, and security shall be first given, if required. In witness whereof,” &c. And the tenants pray judgment whether the said *Susan,*against the form and effect of her covenant aforesaid, ought to be received and admitted to demand her dower of the endowment of the said *A. G.*in the said lands, &c.

To this plea the demandant demurs, and the tenants join in demurrer.

*Gorham*and *Cook,*for the demandant.

If the demandant is estopped to demand her dower in this case, it must be in virtue of the provisions of the statute of 27 *H.*8, c. 10, which has been held to be common law here. But this indenture does not come within those provisions. In the case of *Hastings*vs. *Dickinson & Ux.,*(1) which was exactly the present case, it was holden that a jointure, to operate as a bar of dower, must be a freehold in lands, tenements, or hereditaments ; and that a covenant not to demand dower cannot have the effect of a release of dower.

*Davis*(Solicitor-General) and *W. Sullivan,*for the tenants.

In the case of *Hastings*vs. *Dickinson & Ux.,*the insolvency of the husband’s estate, which caused a failure- of the consideration, appears to have influenced the opinion of the * Court on the second ground taken by the chief justice— a circumstance which does not appear in the case at bar. Nor does it appear, in the present case, that the covenant made by the husband has not been performed, as, in the case re*103ferred to, it did. There was no ground, then, in that case, for the argument arising from circuity of action, which has its full force here. And, in the indenture in the case at bar, it is expressly covenanted that it shall be pleadable in bar of an action of dower; but in the other case there was no such covenant. (2)

The authorities now referred to were not cited in the former case; and if we are permitted to go behind that decision, we shall be able to show that the statute of 27 *H.*8, has received a different construction. It is expressly laid down in *Vernon’s*case, (3) that, if a jointure be made before marriage, the wife cannot waive it after the husband’s death, and take her dower, as she may in case of a ointure made to her during the marriage.

The reason of the common law on this point has ceased since the date of the statute, from the alterations in the state of society, and from changes in the law, particularly those arising under the same statute, as it respects uses, and the statute of wills, which was enacted several years after.

It will not be contended that the representatives are not bound on their part by this contract; why, then, is the wife to have her election to rescind it ? The contract is binding as to the share of personal estate to which the demandant would otherwise be entitled ; and if it be not effectual as to her claims upon the real estate, an effect may be produced very different from the intention of the parties in making the agreement.

This settlement would be considered in chancery as a good bar to a claim of dower, on account of the injury to heirs and creditors from the rescinding of the contract by the wife. (4)

(1)

7 *Mass. Rep.*153.

(2)

*Wales’s Rep.*107, *Trevet*vs. *Aggas.*— 8 *D.*& *E.*485, *Burgh*vs. *Preston.*—12 *Mod. Rep.*551, *Lacy*vs. *Kynaston.*— *Cath.*64. — *Comb.*123, 124.

(3)

 4 *Co.*3.

(4)

 2 *Eg. Ca. Abr.*387, 389. 9 *Mod. Rep.*152. —3 *Atk.*8, 610. — *Com. Dig*Chancery, 3 *D.*2, 3 *E.*2.

* Wilde, J.,

delivered the opinion of the Court. The question now to be determined is, whether the indenture set forth in the second plea at bar is sufficient to preclude the recovery, by way of estoppel. It was settled in the case of *Hastings*vs. *Dickinson & Ux.,*cited by the counsel for the demandant, that a like indenture or marriage-settlement would be no bar of dower at common law, or by the statute of 27 *Hen.*8, c. 10. Nor could it operate as a release, because the release of a demand not in existence is void. These points were decided upon principles which, we think, cannot be controverted. It was argued, in that case, that the marriage-settlement might operate by way of estoppel; but this part of the argument was not noticed by the chief justice in deliv*104ering the opinion of the Court; although we cannot suppose if escaped their observation, in making up their judgment. If that case, therefore, was rightly determined, it is sufficient to -settle the present question; for it is impossible to perceive any material distinction between the two cases.

“ Estoppel is so called,” says Lord *Coke, “*because a man’s act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.” (5) And all the cases collected to illustrate the principles of estoppel will serve ■ to show that this may be considered as a sufficiently comprehensive definition of the term. It is a restraint, or impediment, imposed, by the policy of the lay/, to preclude a party from averring the truth.

But no case has been cited, and none can be found, I trust, to show that a party may be restrained, by way of estoppel, from maintaining an action, although it be in violation of an executory covenant. It is true that such a covenant may operate as a rebutter ; as in the case of a release, by the *son,*of lands in which he has no right, with warranty, to the disseisor of *the father.*This warranty shall rebut and bar him and his heirs, in an action, after the death of the father, against the disseisor. (6) And the reason given by Lord *Coke*why a warranty, being a covenant * real, shall bar a future right, is for avoiding circuity of action; as, otherwise, he that made the warranty should recover the land against the terre-tenant; and he, by force of the warranty, to have as much in value against the same person.

If the demandant’s covenants be viewed in this light, the second plea of the tenants is not strictly formal. We have, however, considered the .question whether they may avail by way of rebutter. It is objected that they have been extinguished by the marriage; but this objection does not appear to be well supported. The general principle is, that those contracts only are thus extinguished, which may, by possibility, be enforced or performed during the marriage. In the case of *Gage*vs. *Acton,*(7) it was ruled that a bond from husband to wife, made before marriage, with condition to leave the wife £1000 in case she survived him, was not extinguished by the intermarriage *;*it being a debt upon a contingency which could by no possibility happen during the coverture. Lord *Holt*held that it was a present debt, and that the condition made no alteration; and, therefore, that the debt was extinguished. But he admitted that a *covenant*or *promise,*in the words of the condition of the bond, would not have been extinguished by the marriage. This case seems to have been determined upon sound principles, and is sup* *105ported by numerous authorities. We consider, therefore, the law to be well settled that a provision made for the wife, in contemplation of marriage, which, by the terms of it, is not to take effect until after the death of the husband, is not extinguished by the subsequent marriage.

But, although we cannot consider the covenants in this case as extinguished, yet, if the consideration has failed, (a) in whole or in part, they cannot operate to rebut the demandant’s right of dower And any inequality between the value of the dower and the sum in which the demandant is liable on her covenants, is sufficient to show that a principle, founded on the inconvenience arising from circuity of action, is not applicable to the case.

* If there be a covenant that the obligee shall not put the bond in suit at any time, such covenant is pleadable in bar as a release ; because, in effect, it is so. But where the covenant is, that it shall not be put in suit within a limited time, a breach thereof cannot be pleaded in bar of the bond. And the reason is that, the damages for the breach of the latter covenant being uncertain, and not being determined by the amount of the bond, the principle of circuity of action is not applicable. Such covenant, therefore, will not rebut the obligor’s action on the bond ; although the bringing of the action may be as much a breach of such covenant as of a perpetual .covenant. (8) So, where there are reciprocal covenants in the same deed, depending on the same rule of damages, one covenant may be pleaded in bar to another, to avoid circuity of action. But where the covenants are distinct and independent, they cannot be so pleaded; for the damages may not be commensurate, and each party must recover against the other separate damages, according to the justice of the case. (9)

From tnese principles it is manifest that, if the annuity has not been paid, and the security has failed, the demandant’s covenants cannot be set up, to rebut her claim of dower; because there is a saving clause in the indenture, by which she excepts her right to the annuity from the effect and operation of her covenants, which was probably intended to operate as a charge upon the real estate in the event of such failure. But if there had been no such exception, yet, if the consideration has failed, her covenants cannot operate

*106as an estoppel or rebutter; for either they do not bind at all, or al most she would be liable only, in an action of covenant, for the difference between the value of the dower and the annuity.

Confining ourselves to the present plea, we cannot determine how these facts are. The tenants have not averred performance of the covenants of their ancestor on their part; and, according to the rules of pleading, such an averment would have been improper in a plea of estoppel.

* In their other plea, the tenants will have the benefit of investigating these facts, if they should operate in their favor ; as to which we cannot now form an opinion. But the second plea is clearly insufficient, *(a)*

(5)

*Co. Lit.*352, *a.*

(6)

*Co. Lit.*265 *a.*

(7)

 1 *Salk.*325.

(a)

**A deed without any consideration is valid between the parties, and *at common*law, (4 Cruise, *Dig. 2;)*but equity will not carry it into execution unless supported by some consideration. *Fonb.*Equity, b. 1, c. 5, 339—370. The want or failure of consideration cannot be set up *at laxo*to defeat a specialty. *Vrooman*vs. Phelps, *2 Johns R.*177. — *Dorman*vs. *Sammis, 2 Johns. R.*179. — *Parker*vs. *Parmele,*20 *Johns R.*130.

(8)

*Bog. Abr. Covenant L. Carth.*64.

(9)

 3 *Lev.*41. —1 *Lev.*16. *■—Bao. Abr. Covenant L.*

(a)

**Any provision, however inadequate or precarious it may be, for which a woman contracts, and which she, before marriage, being of age, agrees to accept in lieu of her dower, will in equity be a valid jointure, or operate as a bar to dower. Classey, p. 221, 4 *Br. Ch.*515. — *Walker*vs. *Walker,*1 *Ves. Sen.*54. — *Davilla*vs. Davilla, 2 *Vern.*724. — *Drury*vs. Drury, 2 *Eden.*39. — *Gladstone*vs. Ripley, 2 *Ed.*59.— *Creswoell*vs. *Byron,*3 *Br. Ch.*362. — *Estcourt*vs. Estcourt, 1 *Cox,*20. — Lord *Buckinghamshire*vs. *Drury,*2 *Eden.*68. From the cases above cited, it appears that the form of the instrument is immaterial; a covenant or bond to pay a sum of money or an annuity not-charged upon any lands, will operate as a bar of dower, if such was the intention. And it is not necessary that this intention be expressed in the instrument in terms, if it can be inferred from any circumstances. See *M*'*Carty*vs. *Teller &*Wife, 2 Paige, 511.