Rain v. Roper. deprived of both by the purchaser's non-fulfilment of his contract. The case of Smith and wife vs. Hines, 10 Fla., 259, referred to by the appellant, concerns personal and not real property. In what manner, then, can the purchaser establish his rights as against the claim for dower? The real issue in this case is whether the purchaser is entitled to a conveyance in pursuance of the contract. The widow is entitled to a dower of the lands of which the husband was "seized and possessed" during coverture, unless his seisin be defeated. The husband, in case of the non-payment of the purchase money, could have held the property as against the purchaser, and the purchaser could have recovered the land from the husband only by compliance and a suit in equity to compel a conveyance. And now that the husband is dead, the purchaser must establish his title by compliance, and by a proceeding against the legal representatives for the same purpose. The legal seisin and possession are in the heirs. The widow is thus entitled to dower unless this seisin be defeated by a conveyance enforced in a court of equity, as we have already seen. As is said by Chancellor Kent, "the wife's dower is liable to be defeated" by the subsisting claim. “An agreement by the husband to convey before dower attaches, will, if enforced in equity, extinguish the claim to dower." The rule is the same if the husband die without having conveyed the land, and a specific performance of the contract is enforced against the heirs. (Adkins vs. Holmes, and Kintner vs. McRae, 2 Carter, 197, 453, before cited.) In all the cases we have been able to examine, the dower was defeated by a conveyance by the husband in his life time, or by a decree of specific performance against the heirs. The issue, as to the payment, is legitimately between the purchaser and the heirs and legal representatives, and not Rain v. Roper. merely between the purchaser and the widow. It is between the purchaser and the heirs and representatives, because it would have been between the purchaser and the husband, if he were living, and this only in a suit for the purchase money or by a proceeding to rescind or to enforce the contract and to compel a specific performance. This is, in our judgment, the result from the adjudicated cases and upon all equitable principles. The cases cited by the appellee sustain this position. It is true that the assignment of dower in the lands covered by the contract would be liable to be defeated by a subsequent proceeding to compel a conveyance, and this would be to the disadvantage of the widow. It would be far better on her part to postpone the application for dower until the contract is rescinded, or until the result of a suit for specific performance. But that affects her only, and does not concern the purchaser, as his rights are not affected by her application in a proceeding to which he is not a party. The purchaser's title must grow out of his equitable rights under his contract. The legal title remains in the heirs of the vendor until divested by a court having jurisdiction, upon a proper case made to transfer the title by its decree. The claim of the complainant, that the widow is not entitled to dower, on the ground that the lands were held in joint tenancy as partnership property, cannot be sustained upon the facts stated. It is not alleged that the lands were purchased with partnership funds for partnership purposes. (See Loubat vs. Nourse, 5 Fla., 351; Robertson vs. Baker, II Fla., 192; Price and wife vs. Hicks, 14 Fla., 565.) A proper order of this court would be that the bill of complaint be dismissed, but under the circumstances it is ordered that the decree of the Circuit Court be and the same is hereby reversed, and the cause remanded with directions that the complainant, appellee, be allowed to amend his bill by adding the necessary parties and making the necessary Hill v. Vanderpool. allegations and prayer for relief in accordance with the opinion in this case within a certain time, to be fixed by the Circuit Court, in default of which the bill will be dismissed. EDMOND HILL, Appellant, vs. JACOB VANDERPOOL, RE SPONDENT. certificate of sale of lands sold by the United States Direct Tax Commis. sioners, under the act of Congress of June 7, 1862, for unpaid taxes charged thereon, signed by two of the tax commissioners, is admissible in evidence in an action brought to try the title to the land. Appeal from the Circuit Court for St. John's county, Fourth Judicial District. The opinion of the court contains a statement of the case. H. Bisbee, Jr., for Appellant. IV. H. Robinson for Respondent. RANDALL, C. J., delivered the opinion of the court. This was an action of ejectment to recover certain lands in St. John's county, of which the defendant (appellant) was in possession, and of which plaintiff claimed title by virtue of certain mesne conveyances and former possession by his grantors and their ancestors. The defendant in possession claims by his answer that the lands were sold by the United States Direct Tax Commissioners for the unpaid direct tax due the United States in December, 1863, to James W. Allen, and that Allen conveyed the same to defendant, who was in possession under said tax sale and conveyance prior to the making of the deed under which the plaintiff claims. In the trial the plaintiff proved his title to the land by several conveyances. Hill v. Vanderpool. The defendant then offered in evidence a certificate of sale by the United States Tax Commissioners for Florida of the premises in question, (the certificate being signed by two only of the three commissioners,) to James W. Allen. The court refused to admit the certificate in evidence on the ground that it was signed by two commissioners only, and that it was invalid without the signatures of three commissioners. The jury then, under the charge of the court, rendered a verdict for the plaintiff, and judgment was rendered accordingly, and the defendant appealed. The Supreme Court of the United States, in Cooley vs. O'Connor, 12 Wallace, 391, held that a certificate signed by only two of the direct tax commissioners appointed under the act of Congress of June 7, 1862, that land charged with the tax had been sold, is admissible in evidence in an action brought to try the title to the land. "The commissioners were created a board to perform a governmental function, and it is a familiar principle that an authority given to several for public purposes may be executed by a majority of their number." "Had the certificate been admitted, it would, by force of the statute, have amounted to prima facie evidence, as well of the regularity and validity of the sale, as of the title of the purchasers." This settles the question raised in this case. The Supreme Court of the United States having given an interpretation of the act of Congress, we are bound to follow it. The certificate should have been received in evidence, notwithstanding the objection made, and the defendant permitted to show his title derived from the tax sale purchaser. It would then have cast upon the plaintiff the burthen of impeaching the sale or showing that the property had been redeemed from the sale as provided by the act of Congress. The verdict and the judgment are hereby reversed, with costs, and a trial de novo ordered. S.C.R.15-9 Nalle & Co. v. Lively et al. EDWARD NALLE & Co., APPELLANTS, VS. MATTHEW LIVELY, ET AL., APPELLEES. A relinquishment of dower by a wife for the benefit of her husband is a sufficient consideration for a subsequent settlement upon her by him; and such settlement is not fraudulent as to creditors of the husband if the relinquishment was obtained upon an express agreement with her that the settlement should be made, and the property settled upon her is a fair equivalent for the dower released. Appeal from the Leon Circuit Court, Second Judicial District. The opinion of the court contains a statement of the case. R. B. Hilton for Appellants. 1. The deed from Hayward to the trustees of his wife can be of no possible validity under the statutes of Florida until September, 1865. There is no evidence outside of the admission of the attorneys that it was signed by him until that day, while the evidence is positive, indeed it is admitted on the other side that it was not until that day witnessed or recorded. "No estate or interest of freehold, or of a term of years of more than two years, * * shall be created * * in any other manner than by deed in writing, sealed and delivered in the presence of at least two witnesses. Bush's Dig., 148. "All grants, conveyances or assignments of trust or confidence of or in any lands, * * shall be by deed sealed and delivered in the presence of two witnesses, * * * or else the same shall be void and of none effect. Ib., 149. "No conveyance, transfer or mortgage of real property or same shall be recorded in the office assigned by law for that purpose." Ib., |