ALIENATION OF DOWER.

A married woman may bar her dower in four ways in Oregon:

(1) By joining in a deed of conveyance and acknowledging it as provided for by law or by joining with her husband in a subsequent deed, also acknowledged as provided for.1 119

(2) By executing a deed separately from her husband without mentioning barring of dower, provided that this separate deed, if barring an inchoate right shall not be executed to a stranger to the title but to the grantee of the husband.120

(3) By a jointure settled on her before marriage with her assent. But this jointure must consist of a freehold estate in lands for the life of the wife, to take effect in possession or profit immediately after her husband's death.121 The assent of an adult woman is to be expressed by her becoming a party to the conveyance by which the jointure is settled. If the young woman is a minor her father or guardian becomes a party to it." 122

(4) By a pecuniary provision made in lieu of dower with her assent.123 If a widow did not assent before her marriage to the barring of her dower, or if the bar was made after marriage, she might make an election after her husband's death between the jointure and dower but she may not have both.124

If any lands have been left to a woman or other provision made for her in a will, she may elect to take the lands willed to her, or her dower, but she may not take both unless it appears plainly in the will that the husband intends her to have both.125 If within one year after her husband's death she has not requested to have the dower assigned, she shall be deemed to have elected the jointure or the devise.126 If she has been lawfully evicted of her dower or jointure she may be endowed of it again but the statute warns a woman against permitting waste or damage on the share of the estate she receives, for she may be liable to the next inheritor if she does it.128

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A provision for the widow's support during the settlement of the estate is made by allowing her to remain in the dwelling house for one year after her husband's death without being chargeable for rent and she is to have reasonable sustenance for a year, and this129 in lieu of dower,130 If her dower should be withheld by any means and she recover it by an action, she may also recover damages for the withholding of it to the extent of one-half the annual value of the mesne profits of the lands of her recovered dower.131

Once a widow has accepted an assignment of dower in satisfaction of her claim upon all the lands of her husband, she may not make any further claim against the heir of her husband unless she has been lawfully evicted of the lands assigned.132 But if the widow is the aggressor and when she has not a dower right, succeeds through collusion with a guardian of the minor heirs, in obtaining a dower right in the land to which these minors or any other person is entitled, the persons so injured may when they reach their majority have an action against the widow to recover the lands wrongfully awarded for dower.133

On account of the married woman's separate property acts which began as we have shown, with a constitutional provision, confusion often existed in lay minds as to what power a married woman actually possessed to dispose of her property by deed and by will. The statute of 1878, mentioned earlier, emphasized the disability of either husband or wife as to exclusion of the other, by mutual consent, from curtesy or dower. This law which was based on an Iowa statute said: "When property is owned by either husband or wife, the other has no interest therein which can be the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or the wife who is not the owner of the prop erty, except as provided in this act" 134

What the act really intended was explained by a judge called upon to decide the following case. A man, owner in fee simple of a parcel of land, about to abandon his wife, conveyed it to her by deed and covenanted

that neither he nor his heirs would lay claim at any future time to a title in the land. Less than ten years later the wife died and the husband, deciding that he wanted the land, tried to obtain it on the plea that under the statute just mentioned (Olson Code, Section 9743) he had no right to convey it. The judge in his decision, quoted an Iowa decision to the effect that "the section refers to the interest which a husband or wife holds in lands owned by his or her spouse which arises under the marriage relation. It does not refer to a property interest that may be based upon a contract or may be derived from sources other than the marriage relation. The section evidently contemplates and includes in its language the dower estate' 135

In another case, the widow of a man brought suit to regain a dower right which she had "sold" to her husband for less than one-tenth the value of the lands. The Court declared that a "conveyance or release to the husband by the wife of her inchoate right of dower is a nullity". The reason for the exclusion of estates or interests growing out of the marriage relation from the classes of property concerning which a husband or wife may contract with each other is obvious enough. "These estates have their origin in public policy. They tend to strengthen the marriage relation and to the same extent they preserve valuable property interests the fruits of their joint lives and in a measure render him or her independent of the vicissitudes of fortune" 136

On the other hand, judges have declared at various times that a woman, even with the consent of her husband, could not devise her separate property so as to deprive him of his estate by the curtesy after her death 137 nor could a husband and wife about to separate, contract by papers executed mutually, so that certain land owned in fee by him should be "exclusively" his and land owned in fee by her should be "exclusively" hers, so as to deprive either of dower or curtesy rights;' and if a husband attempts to defeat his wife's dower in his real estate by a transfer of it to a third person, that person will be held to have received it in trust for the

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wife. Oregon courts have had to decide several suits where dower in an equity was the issue and they have repeatedly declared that there is no dower in an equity in Oregon,139 but the rule is that where the wife occupies the position of a quasi-creditor, as where she is suing to obtain alimony, if there is an intent on the part of the husband to defeat the wife's recovery in such a suit, or finally at his death, such a transfer as to her is fraudulent.140

CONTRACTS.

A wife may contract and incur liabilities and these may be enforced against her to the same extent and in the same manner as if she were unmarried. So she may lend her money to her husband,141 employ him in a business conducted under her own name,142 act as surety for his debts,143 separately mortgage her interest in land held in entirety,144 contract for employment, collect and hold her wages, may sell her separate property and buy other and hold it in the same manner.145 She may convey, make a transfer or execute a lien to or in favor of her husband to the same extent that she can to other persons. An unmarried woman, eighteen years of age or over, has all of the legal privileges which a man has regarding contracts and management of her property and her person.

LIABILITIES.

An act passed in 1878, described the rights and fixed the liabilities of married women, and the relations between husband and wife.146 This abrogated the restrictions of English common law on a married woman's ability to act for herself. The act made a married woman liable for the debts which she had incurred before marriage, and released her from liability for her husband's separate debts. In addition, it enabled her to make contracts, to incur liabilities, to enforce, and to have her acts enforced against her at law as if she were unmarried. For all civil injuries which she might commit, damage might be recovered from her alone and her husband would not be liable for them, except in case

he would be jointly responsible, if the marriage did not exist. The final sections of the act made the property of the wife jointly chargeable with that of the husband for the expenses of the family and the education of the children, and for such expenses, they might be sued jointly or separately.

One might expect such joint liability to give rise to litigation, involving as it did, the question of the wife's personal responsibility for the husband's purchases. One of the questions which arose was: When are articles purchased by the husband or wife, articles for family use and when are they articles for personal use? For example, to which class does a horse buggy belong? As the Oregon law follows one of Iowa, Oregon judges have accepted as controlling their decisions, the pronouncements of the Iowa courts which were interpretations of the joint-liability law of Iowa. And so they have declared that what is a family expense, depends upon the evidence. If an article is one that is capable of being used for the benefit and enjoyment of the family and is purchased for such use, it becomes a family expense. "The statute does not say necessary expense and what is necessary, depends very much upon the wealth, habits and social position of the party. What is a family expense depends upon none of these things. Hence, the separate property of the wife is liable for the price agreed to be paid by the husband for a piano, a sewing machine or a cook stove . . . but a reaping machine is not a family expense, nor is a breaking plow, but a physician's bill is, even though the wife was not the one benefited, and the rent of a house for the use of the family, and a lady's gold watch and chain may be classed as family expenses also".147

A second question was more complicated for it involved consideration as to whether the wife's property could be subjected to the payment of a note given by her husband as evidence of his liability for arrangements made by him for family supplies. The court held that the wife was not liable for the note, but was liable only on the original account.148 And in another case, a wife was held not liable on a contract based on an account