N. Y. Rep.]

Opinion of the Court, per HAIGHT, J.

of an inchoate right of dower in the premises described in the complaint; that on or about the 6th day of June, 1892, the plaintiff's husband as owner, together with some person to the plaintiff unknown, did make, execute and deliver to the defendants a deed conveying said property to them; that the deed purports to have been executed by one Maria Clifford as the wife of James Clifford and to have been duly acknowledged before a commissioner of deeds in the city of New York. The deed was recorded in the office of the register of the county of Kings in liber 3021 of Conveyances at page 454. The complaint further alleges that the plaintiff never signed, executed, acknowledged or delivered the said deed of conveyance, and in so far as the same purports to have been signed by the plaintiff the same is a forgery and is not her deed. Judgment is demanded that the deed of conveyance, so far as the plaintiff is concerned, may be set aside and canceled of record.

The demurrer to the complaint is upon the grounds that it does not state facts sufficient to constitute a cause of action, and that the plaintiff being a married woman has not the legal capacity to sue for the reason that the action does not affect her separate property.

The Revised Statutes provide that "a widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage." (1 R. S. 740, $1.)

Dower accrues to the widow, and not to the wife, and until she becomes a widow her right is inchoate and contingent. Her claim can only become effective on the death of her husband and her survival. Being inchoate and contingent, her interest does not amount to an estate or title, and yet she has an interest which attaches to the land as soon as there is a concurrence of marriage and seizin. (4 Kent's Com. 50.)

The right of a doweress to her dower is not only a legal right, and so adjudged at law, but it is a moral right, to be provided for. She is entitled to maintenance and sustenance out of her husband's estate. She is, therefore, in

Opinion of the Court, per HAIGHT, J.

[Vol. 147.

the care of the law, and a favorite of the law. (1 Story's Equity, § 629.)

The inchoate right of dower is a valuable, subsisting, separate and distinct interest which is entitled to protection, and for which the wife may maintain a separate action. (Simar v. Canaday, 53 N. Y. 298-305; Mills v. Van Voorhies, 20 N. Y. 412; Jackson v. Edwards, 7 Paige, 408; Madigan v. v. Walsh, 22 Wisconsin, 501; Burns v. Lynde, 6 Allen, 305; Davis v. Wetherell, 13 Allen, 60; Petty v. Petty, 4 B. Monroe, 215; Babcock v. Babcock, 53 Howard's Pr. 97; Taggart v. Rogers, 49 Hun, 265.)

The action may not be, strictly speaking, one to remove a cloud upon title, for the inchoate doweress is not the owner of the title. But she has an inchoate interest which attaches to the land, and this she may protect in an action similar and in analogy to one to remove a cloud upon title. Equity is not limited to actions to remove clouds upon title, but reaches out to protect the rights of persons where they are threatened. It will restore property rights where fraud has intervened, and will annul contracts if public policy requires. All of these elements are embraced in the present case. It is claimed that the complaint alleges no fraud, and that there is no allegation of forgery. But the facts are set forth, and it is alleged that in so far as the deed purports to have been signed by the plaintiff, the same is a forgery. The deed purports to have been executed by Maria Clifford. The plaintiff's name is Mary. But the person executing the deed describes herself as the wife of James Clifford, thus personating the plaintiff with a name so similar as to be liable to deceive those not intimately acquainted with the plaintiff. This was a fraud upon her and tended to impair her rights as an inchoate doweress.

It is said that this action is unnecessary; that the plaintiff could wait until her husband's death and then maintain an action to have her dower admeasured. Possibly such an action might be maintained, but this brings to our attention the question affecting public policy. This deed, as we have

seen, purports to have been executed by Clifford and his wife. It purports to have been acknowledged before an officer authorized to take an acknowledgment of deeds and it has been recorded in the office of the clerk of the county, thus showing a transmission of a good record title free from all claim of dower or other interest. It there remains of record to deceive innocent purchasers until such time as the plaintiff shall be permitted to assert her claim. This, it appears to us, she should be allowed to do at once whilst her evidence is at hand and the public may thus be protected from the fraud.

The judgment appealed from should be affirmed, with costs, but with leave to the defendants to answer in twenty days upon payment of the costs of the demurrer and of the appeals.

All concur.

Judgment accordingly.

WILLIAM M. TEBO, Respondent, v. HENRY GREGORY JORDAN et al., Appellants.

1. SHIPPING-SEAWORTHINESS COMPETENT PILOT. While the provision of section 4401 of the United States Revised Statutes, which requires coastwise sea-going steam vessels not sailing under register, except on the high sea, to be under the control of a pilot licensed by the steamboat inspectors, should be complied with, it cannot be said as matter of law that such a vessel, which requires the services of a competent pilot to render her seaworthy, is unseaworthy merely because her pilot is unlicensed, provided he is otherwise qualified.

Reported below, 73 Hun, 218.

(Argued October 29, 1895; decided November 26, 1895.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made at the November term, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict.

The nature of the action and the facts, so far as material, are stated in the opinion.

Everett Masten for appellants. Plaintiff wholly failed to prove performance of the agreement on his part, and in compliance with defendants' requests the trial court should either have dismissed the complaint or directed a verdict for defendants at the close of the testimony. (The Farnsworth, 6 Fed. Rep. 307; Taft v. Carter, 59 Barb. 67; The Gratitude, 25 Fed. Rep. 160; Hayes v. Ball, 51 Penn. St. 142; The Margaret, 94 U. S. 494.) The failure to have a licensed pilot on board the tug was a breach of the charter party upon the part of the plaintiff, and relieved the defendants from all obligation to continue the employment of the tug. (Tebo v. Jordan, 67 Hun, 395; U. S. R. S. §§ 4399, 4401, 4408, 4427, 4454, 4493; Butler v. Boston, 130 U. S. 527; Manchester v. Massachu setts, 139 U. S. 240; Laubheim v. De K. N. S. Co., 107 N. Y. 228; Secord v. S. P. R. R. Co., 18 Fed. Rep. 221; Flanigen v. W. Ins. Co., 7 Penn. St. 306; Adams v. Fitzpatrick, 125 N. Y. 124.)

William W. Goodrich for respondent. A steam tug is not a common carrier, and is only bound for reasonable skill, care and diligence. (Caton v. Rumney, 13 Wend. 387; The Thomas Kiley, 5 Benedict, 307.) The plaintiff's counsel conceded at the trial that the charter party impliedly warrants the seaworthiness of the tug, and this seaworthiness covers not only the boat, machinery and equipments, but also the competency and skill of her officers for the service in which they are engaged, and these conditions were exactly fulfilled by the plaintiff. (Laubheim v. De K. N. S. Co., 107 N. Y. 228; Secord v. S. P. R. R. Co., 18 Fed. Rep. 221.) The stranding resulted from the fact that a schooner suddenly tacked across the course of the Haviland, that she had to slow up to avoid the schooner, and that the tide carried her out of her course. This is a clear peril of the seas. No negligence is shown on the part of the Haviland. (The Adriatic, 107 U.S. 516; 2 Arnold's Ins. § 297, 301; Hale v. W. Ins, Co., 2 Story C. C. R. 176; U. S. R. S. § 4233.) The court properly refused to dismiss the complaint upon the ground

N. Y. Rep.]

Opinion of the Court, per HAIGHT, J.

that the vessel was unseaworthy because she had no licensed. pilot on board. (The Alcalde, 30 Fed. Rep. 137; Carroll v. S. I. R. R. Co., 58 N. Y. 126; Harrison v. Marshall, 4 E. D. Smith, 271; Wood v. Erie Ry. Co., 72 N. Y. 196; Flanigen v. W. Ins. Co., 7 Penn. St. 306.)

HAIGHT, J. This action was brought to recover the balance due on a contract for the use and hire of a steam tug.

On October 23, 1888, the defendants chartered from the plaintiff the steam tug B. F. Haviland until the first day of May, 1889, at the price of $2,200.00 per month. The plaintiff was not to be liable for the damages resulting from the dangers of the sea, and either party could terminate the contract on giving thirty days' notice.

The tug went into the service of the defendants and was engaged in towing coal barges until December 8, 1888, when they gave notice to the plaintiff that the Haviland would not be employed by them longer on account of the stranding on December 2, 1888, of the coal barges in tow by the tug. The plaintiff refused to accept the discharge of the vessel and to cancel the charter until the thirty days' notice provided for by the contract had expired. This controversy arises out of the claim of the plaintiff to recover under the charter for the use of the vessel for the thirty days after the notice was given.

Under the charter the plaintiff doubtless was deemed to undertake to furnish a seaworthy vessel, and for the purposes of this case we shall assume that to be seaworthy it required the services of a competent pilot. What is a competent pilot? The defendants claim that he must be licensed by the United States inspector of steamboats, whilst the plaintiff insists that the license adds nothing to his competency and skill, and that a vessel is just as seaworthy in the hands of an unlicensed as a licensed pilot, provided he be equally skilled and experienced. This question is sharply presented by the requests to charge, and is the only one that we deem it necessary to here

consider.

The Revised Statutes of the United States, section 4401,