Noah Haynes Swayne

“ That is to say, it is competent for the legislature, by a retrospective act, to turn a mere equitable title into a good legal title.
But, a power of attorney, uncoupled with any interest in the attorney, is not a contract between the parties thereto. There is no such thing as a letter of attorney (uncoupled with any interest) which is good in equity but bad at law. There can be no such thing as an instrument which, though not in itself amounting to a letter of attorney, would be a contract for such letter, in the absence of any interest of the grantee therein. ”

“ There is nothing in that instrument which prohibits the legislature of a State or Territory from exercising judicial functions, nor from passing an act which divests rights vested by law, provided its effect be not to impair the obligation of a contract. ”

“ It is an act which, at best, selects out of all the married women certain individuals, to wit, those who may have signed powers of attorney jointly with their husbands under which deeds of conveyance may have been made, and legislates in regard to these individuals by taking away or 'destroying' their inchoate right of dower. ”

“ The authorities all concur in asserting the doctrine that the statutory formalities of the execution and acknowledgment of a deed by a married woman, affecting her real estate, are part of the execution of the deed, and not mere matters of proof or evidence of such execution ”

“ The legislature cannot select from married women particular individuals, nor even a particular class of married women, and declare that such particular individuals, or particular class, shall have no dower in the lands of their husbands, while married women generally do have such dower. ”

“ In my opinion, the better view is that while the right remains inchoate it is as respects the wife under the absolute control of the legislature, which may, by general enactments, change, abridge, or even destroy it, as its judgment may dictate. ”

“ The two former were founded in contract. The latter was the creature of the law. Dower Ad ostium ecclesiae and Ex assensu patris were abolished in England by a statute of the 3d and 4th William IV, ch. 105. The dower given by law is the only kind which has since existed in England, and it is believed to the the only kind which ever obtained in this country.
During the life of the husband the right is a mere expectancy or possibility. In that condition of things, the lawmaking power may deal with it as may be deemed proper. It is not a natural right. ”

“ There is no controversy between the parties as to the facts.
When the power of attorney was given there was no law of Minnesota authorizing such an instrument to be executed by husband or wife, or the attorney to convey under it.
The validity of the deed as respects Randall, the husband, is not questioned, but its efficacy as to the widow, the appellant in this case, is denied. Her claim to dower is resisted upon several grounds, and among them that the defect in the deed was remedied by the curative act of 1857. ”

“ If this would be the position she would occupy in a court of equity relative to her defective deeds, no doubt the legislature could to the same extent apply the remedy by retrospective and curative legislation.
But we do not see that a married woman could possibly stand in this position respecting her dower.
She cannot convey or assign her inchoate right of dower, though she can, by performing a certain act specified by statute, bar it. That is to say, by the performance of the specified act she is thereafter estopped from asserting her dower. ”

“ It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive, before the death of the ancestor. ”

“ For the purpose of transferring the title to her husband, they conveyed to a third person, who immediately conveyed to James Mercer. The deed of Mercer and wife bore date of the 30th of May, 1785. It was fatally defective as to the wife in not having been acknowledged by her in conformity with the provision of the statute of Pennsylvania of 1770, touching the conveyance of real estate by femes covert. She died without issue. James Mercer died leaving children by a former marriage. After the death of both parties, her heirs sued his heirs in ejectment for the premises and recovered. ”