The opinion of the Court was prepared by
Tenney J.
The parties agree, that the demandant was
legally married to John Given prior to the year 1819; that in May, 1842, she was divorced from the bonds of matrimony, for the cause of desertion of the husband, on her application ; and that before the commencement of this action, a demand to have dower assigned in the premises was seasonably made. The farm in which dower is claimed, was “ taken up and settled by one Hobbs, thirty-five years ago, and he sold his right to John Given for the sum of $300, who never paid it till he ■left the State in 1821 ; and his wife has lived there since that time till about the year 1840 or 1841. On January 2, 1819, he took a deed with covenants of warranty from Robert Brin-ley, of the premises, and at the same time gave to his grantor a mortgage of the land to secure the payment of the purchase money, which was $180. On May 22, 1823, he conveyed by quitclaim deed, to Rufus Marr, all the interest, which he had in the same ; and afterwards the grantee paid the full amount due on the mortgage to Brinley, the farm being then worth about $800. On March 21, 1841, Rufus Marr conveyed to the tenant, with covenants of warranty. On August 8, 1841, the tenant having commenced a suit against the present de-[219]*219mandan! to recover possession of the land, his attorney, without the payment of any consideration, obtained from Brinley, a release and an assignment to Rufus Marr, of all the interest, which Brinley had in the premises, which instrument was left with the attorney.
The questions presented for consideration are,— 1. Was the husband of the demandant seized during the coverture? If so, •— 2. Is she entitled to dower by reason of the divorce ? The counsel for the demandant insist, that both these questions must be answered in the affirmative.
“ As between the mortgagor and mortgagee, the fee of the estate passes to the mortgagee, at the time of the execution of the deed; and the mortgagee may enter immediately, or maintain a writ of entry against the mortgagor.” “ But as between the mortgagor and other persons, he is considered as still having the legal estate in him, and the power of conveying the legal estate to a third person, subject to the incumbrance of the mortgage.” Blaney v. Bearce, 2 Greenl. 132.
At the time John Given conveyed to Rufus Marr, the former was the owner of the fee in the land, subject only to the mortgage to Brinley; the grantee took all this right, on the delivery of the deed, and subsequently discharged the mortgage by payment of the entire sum, secured thereby. The facts of the case disclose no intention, to keep on foot the mortgage, but to acquire an absolute title in the land. There is no evidence of any contract, for an assignment of the mortgage. The release and assignment, executed almost twenty years afterwards, could in nowise change the relations of the parties. Brinley had then no interest whatever in the land, and the deed was inoperative for any purpose. It might have been otherwise, if the contract between Brinley and Marr, had been, that for the money paid, an assignment was to have been made. As between the husband of the demandant, a,nd the tenant’s grantor, the fee being in the former, it passed with the seizin, to his grantee; the tenant is estopped to deny it. Kimball v. Kimball, 2 Greenl. 226 ; Hains v. Gardner & al. 1 Fairf. 383.
[220]*2202. The demandant claims to be entitled to judgment by the authority of the statute of 1829, chap. 440, and the same provisions re-enacted in the Rev. Stat. chap. 144, $ 10, and the decree of divorce, against the husband for his desertion. It is denied by the tenant, that the Legislature has the power by passing an act, authorizing a divorce for a new cause, to give to the wife, who may be divorced by reason thereof for the fault of the husband, the right of dower in real estate conveyed before such act, by the husband. It is insisted that such legislation, would be in violation of the constitution of the State, being retrospective, and taking away vested rights. And it is also denied, that the Legislature has attempted to exercise such a power.
Such a statute could not be regarded as affecting a remedy in any manner. So far as it would have any operation upon a tenant of land, conveyed by the husband before the act, its effect would be upon the rights thereto, and nothing further. The mode by which the dower would be obtained, if its claimant was entitled thereto, would remain unchanged by such a statute. Would it take away or abridge any rights of the tenant, as without the law, they were secured to him by the constitution ? And if the constitution would be violated, in which of its provisions is the injury done ?
By article 1, sect. 1, of the constitution of Maine, “ all men are born equally free and independent, and have certain natural, inherent, and inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property.” Of this section there has been a judicial construction in this State, where the Court say, “ by the spirit and true intent, and meaning of this section, every citizen has the right of possessing and protecting property, according to the standing laws of the State, in force, at the time of acquiring it, and during the time, of his continuing to possess it.” And again, “ It cannot by a mere act of the Legislature, be taken from one man and vested in another directly, nor can it by the retrospective operation of laws, be indirectly transferred from one to another, or be subjected to the govern[221]*221ment of principles in a court of justice, which must necessarily produce the same effect.” Proprietors Kennebec Purchase v. Laboree & als. 2 Greenl. 275.
If a man should intermarry and obtain a title in fee to land, without any incumbrance, prior to the act of 1829, before referred to, and should convey the same with covenants of warranty, his wife being living, and not relinquishing her right of dower, according to decisions in this State, Massachusetts and New York, there would be a breach immediately, and an action could be maintained, and nominal damages recovered for such breach. Porter v. Noyes, 2 Greenl. 22; Shearer v. Ranger, 22 Pick. 447; Jones v. Gardner, 10 Johns. 266. If, from this covenant of warranty, the inchoate right of the wife to dower should be excepted, it would be otherwise ; the covenant would be fully kept. Would there be a breach of that covenant, having the same exception after the act of 1829,' supposing it to be prospective, in its terms ? If it secured to the wife the right of dower, provided she should be divorced from her husband for his desertion, it would seem to be no breach, for if this right would be enlarged, according to the new causes, the exception would be enlarged to the same extent, by the same statute. But where the parties contracted as they did in the covenant and the exception to it, the grantee was entirely secure against every incumbrance, excepting the inchoate right of the wife, founded upon the causes of divorce and dower, under the law as it then was. In the contract, the parties are supposed to have made it, in reference to the law, then existing.
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The opinion of the Court was prepared by
Tenney J.
The parties agree, that the demandant was
legally married to John Given prior to the year 1819; that in May, 1842, she was divorced from the bonds of matrimony, for the cause of desertion of the husband, on her application ; and that before the commencement of this action, a demand to have dower assigned in the premises was seasonably made. The farm in which dower is claimed, was “ taken up and settled by one Hobbs, thirty-five years ago, and he sold his right to John Given for the sum of $300, who never paid it till he ■left the State in 1821 ; and his wife has lived there since that time till about the year 1840 or 1841. On January 2, 1819, he took a deed with covenants of warranty from Robert Brin-ley, of the premises, and at the same time gave to his grantor a mortgage of the land to secure the payment of the purchase money, which was $180. On May 22, 1823, he conveyed by quitclaim deed, to Rufus Marr, all the interest, which he had in the same ; and afterwards the grantee paid the full amount due on the mortgage to Brinley, the farm being then worth about $800. On March 21, 1841, Rufus Marr conveyed to the tenant, with covenants of warranty. On August 8, 1841, the tenant having commenced a suit against the present de-[219]*219mandan! to recover possession of the land, his attorney, without the payment of any consideration, obtained from Brinley, a release and an assignment to Rufus Marr, of all the interest, which Brinley had in the premises, which instrument was left with the attorney.
The questions presented for consideration are,— 1. Was the husband of the demandant seized during the coverture? If so, •— 2. Is she entitled to dower by reason of the divorce ? The counsel for the demandant insist, that both these questions must be answered in the affirmative.
“ As between the mortgagor and mortgagee, the fee of the estate passes to the mortgagee, at the time of the execution of the deed; and the mortgagee may enter immediately, or maintain a writ of entry against the mortgagor.” “ But as between the mortgagor and other persons, he is considered as still having the legal estate in him, and the power of conveying the legal estate to a third person, subject to the incumbrance of the mortgage.” Blaney v. Bearce, 2 Greenl. 132.
At the time John Given conveyed to Rufus Marr, the former was the owner of the fee in the land, subject only to the mortgage to Brinley; the grantee took all this right, on the delivery of the deed, and subsequently discharged the mortgage by payment of the entire sum, secured thereby. The facts of the case disclose no intention, to keep on foot the mortgage, but to acquire an absolute title in the land. There is no evidence of any contract, for an assignment of the mortgage. The release and assignment, executed almost twenty years afterwards, could in nowise change the relations of the parties. Brinley had then no interest whatever in the land, and the deed was inoperative for any purpose. It might have been otherwise, if the contract between Brinley and Marr, had been, that for the money paid, an assignment was to have been made. As between the husband of the demandant, a,nd the tenant’s grantor, the fee being in the former, it passed with the seizin, to his grantee; the tenant is estopped to deny it. Kimball v. Kimball, 2 Greenl. 226 ; Hains v. Gardner & al. 1 Fairf. 383.
[220]*2202. The demandant claims to be entitled to judgment by the authority of the statute of 1829, chap. 440, and the same provisions re-enacted in the Rev. Stat. chap. 144, $ 10, and the decree of divorce, against the husband for his desertion. It is denied by the tenant, that the Legislature has the power by passing an act, authorizing a divorce for a new cause, to give to the wife, who may be divorced by reason thereof for the fault of the husband, the right of dower in real estate conveyed before such act, by the husband. It is insisted that such legislation, would be in violation of the constitution of the State, being retrospective, and taking away vested rights. And it is also denied, that the Legislature has attempted to exercise such a power.
Such a statute could not be regarded as affecting a remedy in any manner. So far as it would have any operation upon a tenant of land, conveyed by the husband before the act, its effect would be upon the rights thereto, and nothing further. The mode by which the dower would be obtained, if its claimant was entitled thereto, would remain unchanged by such a statute. Would it take away or abridge any rights of the tenant, as without the law, they were secured to him by the constitution ? And if the constitution would be violated, in which of its provisions is the injury done ?
By article 1, sect. 1, of the constitution of Maine, “ all men are born equally free and independent, and have certain natural, inherent, and inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property.” Of this section there has been a judicial construction in this State, where the Court say, “ by the spirit and true intent, and meaning of this section, every citizen has the right of possessing and protecting property, according to the standing laws of the State, in force, at the time of acquiring it, and during the time, of his continuing to possess it.” And again, “ It cannot by a mere act of the Legislature, be taken from one man and vested in another directly, nor can it by the retrospective operation of laws, be indirectly transferred from one to another, or be subjected to the govern[221]*221ment of principles in a court of justice, which must necessarily produce the same effect.” Proprietors Kennebec Purchase v. Laboree & als. 2 Greenl. 275.
If a man should intermarry and obtain a title in fee to land, without any incumbrance, prior to the act of 1829, before referred to, and should convey the same with covenants of warranty, his wife being living, and not relinquishing her right of dower, according to decisions in this State, Massachusetts and New York, there would be a breach immediately, and an action could be maintained, and nominal damages recovered for such breach. Porter v. Noyes, 2 Greenl. 22; Shearer v. Ranger, 22 Pick. 447; Jones v. Gardner, 10 Johns. 266. If, from this covenant of warranty, the inchoate right of the wife to dower should be excepted, it would be otherwise ; the covenant would be fully kept. Would there be a breach of that covenant, having the same exception after the act of 1829,' supposing it to be prospective, in its terms ? If it secured to the wife the right of dower, provided she should be divorced from her husband for his desertion, it would seem to be no breach, for if this right would be enlarged, according to the new causes, the exception would be enlarged to the same extent, by the same statute. But where the parties contracted as they did in the covenant and the exception to it, the grantee was entirely secure against every incumbrance, excepting the inchoate right of the wife, founded upon the causes of divorce and dower, under the law as it then was. In the contract, the parties are supposed to have made it, in reference to the law, then existing. If the new statute upon a fair construction of its terms, gave the right of dower in the land supposed, and at the same time created no breach of the covenant, it is manifest, that it increased the incumbrance, beyond the fair intent and meaning of the contract, and thereby impaired its obligation. This no law of a State can do. Const. U. S. art. 1, sect. 10, No. 1. The exception then being confined to the inchoate right of the wife, as it was, when the deed was given, the same cause which limits the exception, has the like effect upon the right of the wife to dower. If it were not so, the [222]*222right which vested in the grantee, when the deed was delivered, would be taken away by the supposed act of the Legislature, and no remedy provided upon the covenant, in his deed.
If the law of 1829, allowing divorces to be decreed, for desertion of either of the parties, for the space of five years, had been clearly retrospective as well as prospective, could it be a valid law, so as to give a party the right of divorce, when the desertion complained of, was wholly before the passage of the law ? It needs no argument to show, that so far as it was retrospective, it could not. And if it should furnish no ground of divorce, by reason of its being retrospective as to the cause of divorce, could it have effect to give dower in land conveyed by the husband, before its enactment, and so as to the conveyance retroactive, upon a divorce for desertion, continued for five years after the law which would be prospective as to the cause of divorce?
The principle is not altered, by the provision that the right of dower shall be incidental to the decree of divorce, instead of its being the direct object of the statute, as we have already seen from the quotation from the case referred to, 2 Greenl. 275. If by statute, the basis of the right of dower, in land conveyed by the husband, during coverture, can be enlarged afterwards, it is not perceived, what barrier is interposed to a further extension ; if dower can be had, as the consequence of a divorce for a new cause, a direct act, that she shall have dower in land, of which the husband was seized before as well as during the coverture, would violate no constitutional provision. And if causes, which can result in the assignment of dower can be increased, we see no reason why the quantity and duration of the estate therein, may not be enlarged also; or why the right of an interest in the premises, should be confined to the wife or the widow.
It is said, that the statute in question, is no more liable to this objection, than would one be, which should make certain crimes capital, that are not so, at present. In questions of dower, the Courts do not stop to inquire by what agency, the husband came by his death, not even, if it should be suggested, [223]*223that it was by the fault of the wife. If the husband were seized during the coverture, and is dead, the foundation of the right is established, although his death may be hastened by legislation or otherwise.
When the tenant’s grantor took the deed from the demand-ant’s husband in May, 1823, what were the rights conferred thereby under the laws then in force ? An estate in fee incumbered by the outstanding mortgage, and the inchoate right of the wife to dower. The latter right could then be consummated only by the death of the husband, or by a divorce upon her application for his adultery. Upon the facts of the case, these were all the incumbrances which could exist by possibility. If the present law had been enacted before the husband’s conveyance, in addition to the risks just mentioned, he would be exposed to the liability of assigning dower upon a divorce for additional causes. It follows therefore, that such a statute as the demandant’s counsel insists, that the one he invokes, is, could have an effect upon the land in question, the tenant would not have the right of “ possessing and protecting property,” according to the standing laws of the State, in force at the time of his “ acquiring” it, and during the term “ of Ms continuing to possess it.”
The power of the Legislature to make such a law as has been supposed has been examined, independent of the question whether the statute of 1829, and of the Rev. Stat. c. 144, sect. 10, was of such a character. This was done, because it was seriously argued by the counsel for the demandant, that the power was in the Legislature, and that such was the construction to be put upon the section; indeed, without both, the action could have no basis. The decision of that point would also furnish a rule for the interpretation of the language of the law, in one event, upon the inquiry, whether the law is in its terms, retrospective. No statute is to be held retrospective, or in violation of any constitutional provision, when it affects rights, unless such shall be the necessary construction. The language of the section is, “ any woman, who is divorced from her husband, for his fault, may recover her [224]*224dower in the manner before provided, against her former husband, or whoever shall be the tenant of the freehold.”
The section in its terms is general, not specifying what cases, or classes of cases shall come within, or be excluded from its operation. It is in itself sufficiently broad to embrace all cases, where a wife has obtained a divorce for the fault of the husband, if there is nothing in the laws of the State of equal or superior authority, manifesting a different intention in its authors.
That it was framed with reference to other provisions of law, in order to learn its meaning, most clearly appears; and by those other legal provisions, the meaning may be restricted. It could not have been intended, that the right of dower, in land conveyed by the husband, should attach to the wife, after her divorce, when she had barred that right, by signing the deed of conveyance, relinquishing it; this would amount to a repeal of other provisions enacted at the same time. She could not have dower in land, conveyed by the husband, before the coverture, as that would change one of the established principles touching the right of dower. Neither was it the object to give the right, to claim dower against the former husband, or the tenant of the freehold, at the election of the claimant; but clearly against the one of the two, who should be the tenant of the freehold at the time, when the right should be attempted to be enforced; for by other principles, the right could be made effectual, only against the one claiming the title in the land. Therefore in giving a construction to the section, so general in its language, we must look at it, in connection with other statutes, and the doctrines of the common law, applicable to the subject, — and also in connection with the constitution as the supreme law of the State. We are not to suppose, that the Legislature was at all unmindful of the restraints that this imposed, or was uninfluenced by them, unless the contrary is clearly manifest. There being nothing in the section itself, showing that they iritended that it should apply to land, conveyed before the passage of the law, increasing the causes of divorce, excepting the general [225]*225terms, it cannot be understood, to have been intended for a purpose which would be unauthorized by the constitution.
By the agreement of the parties the demandant must become Nonsuit.