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Decisions of the Superior Courts of New South Wales, 1788-1899

Middleton v. Taylor [1837] NSWSupC 49

married women's legal disabilities, dower, laches, equity procedure, law reporting, authenticity

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, in equity, 16 June 1837

Source: Sydney Herald, 19 June 1837[ 1]

Middleton v. Taylor. - This was a bill filed by Mrs. E. J. Middleton to recover her dower from the defendant, who is in possession of certain premises formerly belonging to her late husband.  The bill stated that her late husband died in 1829, and that before his death he was possessed of this piece of land in fee simple, and therefore she was entitled to her dower.  The answer to the bill stated that the defendant purchased it of one Ashley, who purchased it from Mr. J. T. Campbell, who purchased it in 1820 from the deceased, Middleton; and that when defendant purchased the land he had not notice of any right of dower, and that large sums of money had been expended since the transfer from Middleton to Campbell in buildings and other improvements.  After Mr. S. Stephen and Mr. Foster had been heard for the plaintiff, the Attorney-General and Mr. Kerr contended that the case must be dismissed - firstly, because there was no proof that the plaintiff was actually the wife of Middleton; nor that Middleton had been seized of the land during the time he was married to the plaintiff; and that at any rate the plaintiff could only claim a right of dower in the value of the land at the time it was disposed of by the late Mr. Middleton, and could not claim any right to dower in the value of the land at the time it was disposed of by the late Mr. Middleton, and could not claim any right to dower in the value of the land as improved by the defendant, especially as she allowed so long a period to transpire before she put in her claim for dower.  The Court reserved its decision.


Dowling A.C.J., and Burton and Kinchela JJ, 18 July 1837

Source: Sydney Herald, 20 July 1837

Middleton v. Therry. - This was a bill in equity, filed for the recovery of a dower.  The bill stated that the plaintiff was married on the 1st September, 1815, at St. Phillip's Church, Sydney, to the late Thomas William Middleton, who was afterwards possessed of certain land which is now in possession of the defendant, and plaintiff therefore claimed that she might be allowed her dower out of the said land.  The answer to the bill averred that in 1820 the late Mr. Middleton sold the land to Mr. J. T. Campbell, for a valuable consideration, and that in 1831 it was purchased by Mr. Therry for £1200; that since he purchased it he expended upward of £800 on it, that had he known that any person had a claim on it he would not have expended this money in improvement, and that he never knew there was such a person in existence as the plaintiff, until January last.  Mr. Sydney Stephen, and Mr. Foster contended that the plaintiff was entitled to a full third of the value of the property as it now stands while the Attorney-General, and Messrs. Kerr and Windeyer contended that the plaintiff had not sufficiently proved that she was the wife of the late Mr. Middleton to entitle her to dower, or that if she was entitled her to dower, it could only be to a third of the value of the property as it stood in 1820, when it was disposed of by Mr. Middleton, and not a third of the value of the property with Mr. Therry's improvements.  After hearing the arguments of Counsel, the Acting Chief Justice said the Court would take time to consider the case.


Dowling A.C.J., and Burton and Kinchela JJ, 22 July 1837

Source: Australian, 25 July 1837[2 ]

Eliza J. Middleton v. Taylor (in Equity).  This was a bill for dower.  The case came on for hearing on bill and answer.  The bill stated, that complainant was widow of Thomas William Middleton, who during her coverture, was seized in fee-simple of divers freehold estates in Sydney, and having been so seized, died on the 28th February, 1829, leaving complainant surviving, and thereby entitled to her dower of such estates.  That one of such estates is now in the possession of the defendant, of whom, the bill charges, she had demanded her dower thereof, but that he refused to comply therewith, pretending that she was never accoupled to the said T. W. Middleton in lawful matrimony, whereas, she charges, that on the 21st September, 1815, at St. Phillip's Church, Sydney, the said T. W. Middleton was duly married to her, and that she is therefore entitled to her dower as aforesaid.  After the usual charges and interrogatories, the bill then prays - ``That the defendant may discover and set forth a full and true description of the premises, and all particulars relating thereto, and that an account may be taken under the decree of the Court, of the rents and profits thereof, which have accrued since the death of Middleton, or which might have been received by him, and that one-third part thereof might be paid to complainant, and that one-third part of the said freehold might be assigned and set out for her dower, and she let into the immediate possession thereof, and be decreed to hold the same for her life, and that defendant might be decreed to produce all deeds, &c. relative thereto, in order to effectuate the purposes aforesaid; concluding with a prayer for general relief."  The defendant by his answer says, ``That he has lately heard, and believes it may be true, that complainant was lawfully married to T. W. Middleton, about the time in the bill stated, but refers complainant for greater certainty, to such proofs as she may be able to produce, concerning the same."  ``That he has also heard, and believes it may be true, that said T. W. Middleton was, during a part of the time of his said marriage with complainant, seized in fee-simple of the land mentioned in the bill, and now in the possession of Allan McGaa, as tenant thereof to defendant, which was purchased by defendant of one Henry Ashley, who had previously purchased the same from one Charles Campbell, who pretended to be seized thereof in fee-simple, and was, as defendant was informed and believes, in the actual or legal possession thereof."  The answer then goes on to state, that defendant believing Charles Campbell and Henry Ashley had respectively been rightfully seized thereof, and that the same was free from incumbrances, agreed with Ashley for the absolute purchase of the same in fee-simple, and that said Ashley, in 1835, conveyed same to defendant absolutely, for £960, which defendant has since paid..  That another parcel of the same land was sold by Charles Campbell, to Roger Therry, Esq.  The answer then goes on further to say, without qualification, that Middleton during his life-time, and long before his death, i. e. on 22d November, 1820, conveyed said land to one John Thomas Campbell, since deceased, and that said Middleton was not seized thereof at the time of his death.  There is then an admission of Middleton's death, at the time stated, and that the complainant had not dower of the land in question, but defendant saith, that he had no notice of any right thereto, until about four months ago, and that she did not demand the seisin of her dower until January last.  He then admits that the land in question is worth £100 per annum, but saith, that since Ashley purchased the same, he had laid out £400 and upwards thereon, in improvements and buildings, which increased it to more than double the amount of the prior value thereof, and defendant himself, since his purchase from Ashley, had laid out £100 and upwards, in improvements thereon.  And he further says, that if complainant had claimed her dower immediately after the decease of Middleton, or at any other time before the sums of money had been so expended in improvements, such sums would not have been laid out thereon, and he submits whether the laches of complainant in refraining from making such demand for dower, until the improvements were completed, was not a fraud upon defendant which ought to deprive her of every benefit or advantage therefrom; concluding with a denial of fraud and combination.

This case was argued before us on the 16th instant.  The first question for us to determine is, whether the complainant is in a situation to pray the relief she claims by her bill, without having previously established her right to dower at law.  That depends upon whether, on the face of the bill and answer, any doubts is raised upon the assured right; the bill first charges that she was married to Middleton, at a time and place precisely stated, and secondly, that during the coverture, her husband was seized in fee of the land in question.  These are particular and precise charges.  It is a general rule in equity pleadings, that to so much of the bill as it is necessary and material for the defendant to answer, he must speak directly and without evasion, and must not merely answer the several charges literally, but he must confess or traverse the substance of each charge, and wherever there are particular precise charges, they must be answered particularly and precisely, and not in a general manner, even though the general answer may amount to a full denial of the charges.  If the defendant meant to contest these most essential charges in the plaintiff's bill, it appears to us that he should have traversed or denied them in direct terms.  The mere expression of his having heard, and of his belief, that these facts may be true, clearly does not amount to a traverse which ought to induce the court to compel the plaintiff to bring her writ of dower, or have her right determined by an issue at law.  The defendant was materially interested in having these points satisfactorily determined if they were disputable, and his failing to put them in issue amounts to a confession that they could not be disputed.  Mitford Eq. Pl 309.  Indeed the bill by giving time and place when and where the marriage was solemnized, furnished the defendant with means of ascertaining whether the charge were true, before he should be called upon to answer.  If therefore, the defendant cannot, or does not chuse [sic] to controvert the plaintiff's abstract legal right to dower, why should the court subject her to the trouble of a circuitous mode of establishing that which the defendant does not pretend to deny?  Charges in a bill must be taken to be true, if they are not denied by the answer.  This is an universal rule in equity pleading.  It appears to us that the recent case of Williams and Terry, decided last year, is expressly in point with this part of the case.  Under these circumstances, we think the complainant's bill must, in the absence of all positive denial to the contrary, be taken to contain a true statement that she is the lawful widow of Middleton, and that he was seized of the land in question during the marriage.  As to the objection, that the prayer of the bill is imperfect for not praying that the plaintiff should be decreed entitled to her dower, we think it is not tenable.  As a court of equity, we could not decree a legal right.  In entertaining this bill we proceed upon the assumption that her right could not be disputed at law, as in fact, a point already determined.   Such a prayer is not only unnecessary, but would be impertinent.  The case being thus cleared of the preliminary difficulties raised, it only remains to be considered to what extent the complainant is entitled to relief.

We are of opinion that the plaintiff is only entitled to dower from the time of demand made.  It is laid down in Jenkins Cent 45, ``if the husband does not die seized, after demand and refusal to assign her dower, she shall have damages only from the time of the refusal."  At common law she would be entitled to no greater relief.  Her claim to damages rests upon the statute of Merton 20 Henry 3 c. 1. and unless she comes within the terms of that statute, she would not be entitled to damages from the time of the death of her husband.  That statute in terms, gives a remedy to widows deforced of their dower of lands, of which their husband's died seized.  In Co Litt 32 b.  It is said the widow shall recover damages only when her husband dies seized (i. e.) seized of the freehold and inheritance, for albeit the husband before the title of dower had made a lease for years, reserving a rent, the wife shall recover the third part of the reversion with a third part of the rent, and damages, for the words of the statute be ``de quibus viri sui obiesant seisiti."  Some say that the demandant in a writ of dower, that delayeth herself, shall not recover damages, therefore let the demandant  take heed thereof."  He adds, ``It is necessary for the wife, after the decease of her husband, as soon as she can, to demand her dower, before good testimony, for otherwise she may, by her own default, loose the value after the decease of her husband, and her damages for detaining of her dower."  And this is said of the case where the husband actually dies seized.  Now here, the husband had alienated the land in 1820, and in 1829 died dis-seized.  The present defendant is in possession of the land as a boná fide purchaser for valuable consideration without notice of the plaintiff's claim of dower until January last.  By the statute therefore, she is entitled to no damage for the detention of the possession of her dower, and her claim must be confined to the dower of the land itself.

The remaining and most important point is, whether she is to be decreed entitled according to the present improved value in the hands of the defendant, or only according to the value of the land in the life-time of the husband.  As against the heir, there is no doubt, according to the authorities, that her title would be to the quantity of the land, whether improved or deteriorated, at the time of the demand, for in Co. Lit. 32 a. it is said ``she is to have one just third part as it is."  The position laid down there, that ``If lands be improved, the wife is to have one-third according to the improved value," must clearly be understood to apply to the heir, and not to a feeoffee.  In terms the doctrine is laid down as applying only to the heir, who being cognizant of the widow's title to dower, is he improves the land he does so at his own peril.  By the death of her husband, her title to dower becomes consumate, and she would be entitled to an assignment of it immediately afterwards, and if he fails to assign, and improves the land in the interim, it is but reasonable that when she enforces her right she should be decreed entitled to her third of the land, according to its improved value.  But the reason of this rule fails when the claim of dower is made against the husband's feoffee.  In Hargrave's & Butler's notes to Co. Lit. 32 a. note 193, it is laid down t hat ``If feoffee improves by buildings, yet dower shall be as it was in the seisin of the husband; for the heir is not bound to warrant, except accordingly to the value as it was at the time of the feoffment, and so the wife would recover more against the feoffee than he would recover in value, which is not reasonable."  For this the learned commentators cite the year books, 1 Hen. 5, 11, 17 Ed. 3, 17 N. 3, 31, Ed. 1, Lord Hale's M.S.S., and other authorities.  We certainly have not access in this Colony to the year books, but having reference to the reverence and respect in which these ancient editors are justly held in Westminister Hall, we must assume that these principles are correctly extracted and laid down.  They are indeed recognized as standard works on the law of dower, as irrefragable.  In 1 Rober's Husband and Wife, 347, it is said, ``Suppose husband makes a feoffment in fee of lands, with warranty, in which wife had acquired an initiate title to dower, if the feoffee or his heirs improve thee lands, or they otherwise become of greater value than they were at the period of the conveyance, the feoffor's widow will only be entitled to them as they were at the time of the feoffment; for if the contrary were the legal rule, she would recover more against the feoffee (the value of a third of the improvements,) than he could do against the heir upon the warranty, who is only responsible to the feoffee for the value of the lands at the time of the conveyance which would therefore be unreasonable."  If indeed the estate conveyed were conditional the rule would be otherwise.  In the present case however, no point of that kind arises.  In the absence of such authorities as those cited, we should certainly have paused before we decreed in the present case that the widow was entitled to her third of this estate according to its present improved value.  Nothing could be more inequitable than to decree her dower to that extent after the laches of which she has been guilty.  She comes into Equity to enforce a legal right, but as a Court of Equity, we cannot exclude from our consideration the hardship and injustice which would ensue to the defendant if we allowed her to work an injury which, on the part of an innocent feoffee, would be irreparable.  Assuming that the defendant has obtained covenants for title from his feoffor, still they would only inure to the extent of the value of the land as it was dowable in the life time of the husband.  The feoffor could convenant for no more, and therefor the feoffee takes it dogged only with liability to dower, according to its contemporaneous value.  In thus holding we do no injustice to the widow, who is only entitled to be endowed, in consideration of marriage, to the one third of the value of her husband's estate.  She has no right to her thirds of another man's.  Whereas were we to hold otherwise she would obtain more by her marriage than she ever contemplated, and this at the expense of an innocent feoffee who has purchased bonâ fide, and without notice of so extensive a liability.

On the whole we are of opinion that this complainant is entitled only to her dower of one third of the estate in question according to its value at the time of its conveyance by the husband; and to that extent the decree must be limited.  We therefore decree, as prayed by the bill, a discovery of the description of the premises, and all particulars relating thereto, and that an account be taken of the rents and profits, or value thereof, from the time of demand of dower, estimating the same at the value of the estate at the time of the conveyance by her husband, and one-third part be paid to this complainant, and that one-third part of the freehold be assigned and set out for her dower, having reference to the rate of the premises at the time of the conveyance, &c., and that defendant to produce all deeds relating to the estate, for effectuating the prayer.

Middleton v. R. Therry, Esq. - This was a bill for dower, involving precisely the same questions as were raised in the case of Middleton v. Taylor, both cases being nearly similar in circumstances.  We are constrained to hold in this case, that neither the marriage of the complainant, nor the seisin of her husband, being positively denied or rendered doubtful by the defendant's answer, she has a right to come into Equity to have her dower assigned out of the estate of the defendant.  It was very ingeniously argued, that the seisin in fee of the husband during the marriage was rendered sufficiently doubtful as a question of law, by the answer, so as to put the complainant to establish that point at law.  The question of seisin in fee, or no seisin, is as much a question of legal adjudication upon facts, as marriage or no marriage.  If, fee by the husband during the marriage, he ought to have denied it directly, or have stated such circumstances in his answer as would have rendered the question doubtful.  Could he, with safety  to his own interests, have put upon the record, that the land in question was only held by the husband at the time of his death under a lease from the Crown, then it would have become an important, and perhaps, a disputable question, whether the wife could claim her dower.  But that question has not been raised, and therefore we are bound to conclude from the pleadings, that the seisin in fee by the husband could not be disputed.  Upon the other parts of the case we must pronounce the like decision as in Middleton v. Taylor - First, that the plaintiff is not entitled to an account of the rents and profits, except from the time of demand, as her husband did not die seised; and secondly, that she is only entitled to dower of the land according to its value at the date of the conveyance by her husband.  We decree therefore to that extent only, and the prayer of the Bill, so as to effectuate her dower to that extent is ordered without costs.


[ 1] See also Sydney Gazette, 17 June 1837: the defendant's argument included that ``at all events the plaintiff could only claim a right of Dower, in the value of the property at the period it was disposed of by the late Middleton, and could not claim any right to Dower, in the value of the land as improved by the defendant, especially as she allowed so considerable a period to transpire before she put in her claim for dower."

See also on Middleton v. Therry, Dowling, Proceedings of the Supreme Court,  Vol. 138-1, State Records of New South Wales, 2/3322, p. 68, and see Vol. 140, 2/3325, p. 27; Williams v. Terry, Dowling, Proceedings of the Supreme Court,  Vol. 139, State Records of New South Wales, 2/3324, p. 1.

[2 ] See also Sydney Herald, 24 July 1837; Sydney Gazette, 25 and 27 July 1837.  The authenticity of this is shown by the fact a copy of it is pasted into the beginning of Dowling, Proceedings of the Supreme Court,  Vol. 139, State Records of New South Wales, 2/3324; the manuscript version of the judgment is at p. 7.

Published by the Division of Law, Macquarie University