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her privileges further enlarged so that she was permitted “to manage, sell, convey or devise by will her property and pecuniary rights at the time of marriage or afterwards acquired to the same extent and in the same manner that her husband can property belonging to him”.72 And “when property is owned by either husband or wife”, the legislature declared “the other has no interest in it which can be the subject of contract between them, or such interest as will make the property liable for the contracts or liabilities of either husband or wife who is not the owner of the property”.73 Should either obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property might maintain an action for it to the same extent as if they were unmarried.
A conveyance, transfer or lien executed by either husband or wife to or in favor of the other was made valid to the same extent as between other persons. Either was also permitted to constitute the other his or her attorney in fact, to control or dispose of his or her property for their mutual benefit and to revoke the same as other persons might do.74 This last provision was amended in 1907 to enumerate the powers of the attorney in fact, as being, to “control, sell and convey, mortgage or bar dower or curtesy, in his or her prop erty for their mutual benefit” with equal powers of revocation.75 Another provision of the laws of 1878 per mitted the wife to make contracts, to incur liabilities, the same as though she were unmarried and these were to be binding upon her to the same extent.78
Two years later, in 1880, another step was taken by the legislature toward establishing the legal identity of a married woman. The act then passed repealed "all laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband; provided that this act shall not confer the right to vote or hold office upon the wife except as is otherwise provided by law and for any unjust usurpation of her property and natural rights she shall have the same right to appeal in her own name alone or
to the courts of law or equity for redress that her husband has' 77
Until 1893, the law of 1878 which freed the pecuniary rights of every married woman from the debts and con. tracts of her husband read as follows: "The property and pecuniary rights of every married woman acquired by gift, devise or inheritance.
These words, “gift, devise or inheritance”, had but little restrictive value, however, since the “Sole Trader” Bill of 1872 gave to a married woman entire control of property acquired by her through her personal labor. The legislature of 1893, therefore amended the law so that it reads today, “The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired shall not be subject to the debts or contracts of her husband, and she may manage, sell, convey, or devise the same by will to the same extent and in the same manner that her husband can property belonging to him”.78
In 1895, a case came before the Supreme Court which required interpretation of the above statute. This was a suit brought by a married woman to recover real property, concerning which the cause for action had accrued more than ten years earlier, this (ten years) being the statutory limit of time allowed for the bringing of such actions. The defendant pleaded the ten year limitation on the action, claiming that the act of 1878 modified the provisions of an act of 1862, which extended the period of time within which married women (infants and insane) might institute an action.79 The Court held that “if the married women's acts of 1878 and 1880 had removed all the legal disabilities of married women, they did not change her status or remove her marital disability and so did not modify the statute of limitations by which a married woman is allowed fifteen years to institute an action for the recovery of real property. The exemption of a married woman from the operation of the ten years statute of limitations is founded upon her marital relation, not upon the idea that such relation prevented her from suing in her own name.' '80 In 1915, the legislature amended Section 17, Lord's Oregon Laws, by omitting the clause which made married women one of the classes of persons under disabilities to whom the limitation of time for commencement of actions applied.81
Oregon retains on her statute books, provision for both dower and curtesy rights with some modifications of the common law rulings. The first territorial Legislature in its act on “Wills”, permitted every person twenty-one years of age and upwards to "devise all his estate, real, personal and mixed, and all interest therein, saving to the widow her dower'82 It seems to have been left for the Code of 1855 to say what part of the estate this should be, how barred or assigned. These provisions have been retained by the state government and with but few modifications in the past sixty years, are in force today.
The 1855 Code83 entitled a widow to the use, during her life of one-third part of the inheritable lands of which her husband was in possession at his death, unless she was lawfully barred of them; in 1893, this was increased to one-half part and still remains the law.84 In 191785 a provision was added that she might choose, instead of one-half part for use during her life, onethird part of the whole of her husband's lands, to have as her own in fee in her individual right, but when she was entitled to this election, she was also required to begin proceedings for the assignment of her dower within one year after her husband's death. If she did not do so, the Probate Court could assume that she had elected to take the undivided one-third in fee,86 but the clause giving her her choice between one-half part for use for life, and one-third part in fee, was repealed in 1919.
The original provision regarding the husband's exchange, mortgaging or purchasing of lands, is in force today. If a husband exchanges his lands, a widow may not have dower of both, but may make her election of either;87 or if he has executed a mortgage on his estate before marriage, the widow is entitled to dower before the claims of any other person are settled except those of the mortgagee who has the first right.88 When a husband has purchased lands during coverture and at the same time mortgaged his estate in such lands to secure the purchase money, the widow is not entitled to dower as against the mortgagee even though she did not unite in the mortgage, but she is entitled to dower as against all other persons.89 In case of a surplus after such a mortgage sale, the 1855 Code gave the widow the interest or the income of one-third part of the surplus as her dower for life.90 The 1893 Statute increased this to onehalf part, which is the present law.91 Similarly, in case the heir paid the mortgage, after this payment was deducted from the value of the lands, the widow was to have the use, originally of one-third of the residue; after 1893, one-half of the residue for life.92 If the husband sold any lands which afterwards enhanced in value, the widow's dower was to be estimated on the value of the lands at the time of the sale.93 One situation to which this law applied was that of a widow whose husband had mortgaged his lands prior to 1893, the year this law was amended. Due to an error of the clerk, the actual judgment was not entered for several years after the confession of judgment had been made. Meanwhile the law increasing the widow's dower from one-third to one-half part was passed. The husband died ten years later, 1904, and when the estate was being administered the widow claimed onehalf part of the land sold, as her dower. The Supreme Court determined that she would be entitled to only one-third since the land had been mortgaged before the law was passed increasing the amount of dower.94 In another suit, the question concerned the interpretation and application of the word "enhanced”. A federal judge admitted that the word "enhanced” taken in an unqualified sense is equivalent to “increased” and comprehends any increase of value, however arising. “But under the circumstances it ought to be construed to include only the value caused by the improvements put upon the land by the tenant and not that which arises fortuitously or from what
may be called natural causes. I know that at common law the value at the time of alienation was the basis on which the value of the dower was estimated. But it was always an unjust rule and founded on special reasons that have no force at this time or in this country where it has been ably criticised and questioned” as a legal “juggle”.95
When the right to dower is not disputed, the dower may be assigned in any county in which the lands lie, by the county court of the county in which the estate is settled. This court is directed by the statute to appoint97 “three discreet and disinterested persons” who shall set the dower off by “metes and bounds”. An alien woman or a woman residing outside of the state is not to be deprived of dower in lands of which a husband had possession when he died. However, dower does not attach for such aliens to any lands which the husband had possessed during their marriage, for since dower is a matter of legislative creation, the legislature, in order to protect innocent purchasers may provide “that a non-resident woman whose very existence is probably unknown within the state and is practically disavowed by her husband shall not be entitled to dower of lands which he disposed of without her consent”.99
When the estate is not divisible as a mill or tenement, the dower may be assigned of the rents, issues and profits, to be had by the widow as a tenant in common with the other heirs100 but the dower need not be assigned and the widow, with the children or other heirs may occupy the lands, if there is no objection by the heirs or may receive one-half part of the rents ;101 the last clause was an amendation in 1893 of the provision of 1854, permitting the widow to receive one-third part of the rents.102 A mere right of dower before an assignment to the widow is only a chose in action, a claim, and is not such an interest in the real property as can be levied upon or sold under an execution against her property;10 nor can she convey to another person a legal right of possession of the land.104 It does not give her the right of possession of an estate in the lands, but it is only such an estate as that an action may be maintained by the