CHAPTER XXIV. DOWER AS AGAINST THE HEIR OF THE MORTGAGOR, OR THE PURCHASER OF THE EQUITY OF REDEMPTION. 1-21. Where the holder of the equity has redeemed, the widow must contribute. 22-24. Whether she must contribute where the mortgage is redeemed in the husband's lifetime. 25. Principal or interest of the mortgage debt must be payable before contribution can be required. 26-28. Extent to which the widow must contribute. 29-36. Rule where the holder of the equity has procured an assignment of the mortgage. 37. Election to contribute, or have the mortgage debt deducted from the value of the land. 38. As against a holder who has failed to redeem, the widow may have dower as of an unincumbered estate. 39-41. Dower where there are suc. cessive mortgages. 42-51. When the mortgage will be treated as satisfied. Where the holder of the equity has redeemed, the widow must contribute. 1. It is a rule in the American States, that where the holder of an equity of redemption has redeemed the lands from a mortgage incumbrance, the lien of which was superior to the dower interest of the widow of the mortgagor, she must contribute her rateable proportion of the amount paid before she can be endowed of the estate. This doctrine, although now well settled, was for a time involved in much doubt and confusion, owing to a contrariety of decisions upon the subject; and a full exhibition of the leading cases bearing upon it, and of the grounds upon which they proceeded, seems essential to its proper understanding. 2. In Hitchcock v. Harrington,' decided in 1810, the question. was presented whether a tenant in possession, who had acquired title through the heir of the mortgagor, and who had afterwards paid off the mortgage, could avail himself of the fact that the mortgage was executed for the purchase-money of the lands, and simultaneously with the delivery of the deed, as a defence against 1 Hitchcock v. Harrington, 6 John. 290. the claim of the widow of the mortgagor for dower, until she reimbursed him in the amount paid, and it was held that he could not. Kent, Ch. J., said: "The mortgage no longer exists. It was paid off and discharged without having been foreclosed. The mortgage estate is extinct; and the defendants hold under the title and seisin of the husband existing prior to the mortgage. By discharging the mortgage, the title is to be deduced from the original purchase of the husband, and he is to be considered as having been seised ab initio. The defendants do not pretend to hold under the mortgage. The mortgagee exercised no other act of ownership than making a lease for years. The title of the defendants is wholly from the heir; and when the heir sold, the amount of the mortgage was no doubt deducted from the purchase-money; and the redemption of the mortgage was for the benefit of the title derived from the heir. The question is here the same as if the heir of the husband was the defendant; and I can not perceive any principle that would allow him to set up a satisfied mortgage in bar of dower. It is now the settled law of this court, and the same principle has been recognised in the court for the correction of errors, that the mortgagor is to be deemed seiséd, notwithstanding the mortgage, as to all persons except the mortgagee and his representatives. When his interest is not in question, the mortgagor, before foreclosure or entry under the mortgage, is now considered, at law, as the owner of the land; and it does not lie with the heir or his assignee, to deny the seisin, and defeat the wife of her dower. If the present tenant was the mortgagee, or a person deriving title under the mortgage, the case would present a very distinct subject for consideration; and the question would then arise, whether the husband acquired a seisin by his deed of the 3d of May, 1774, competent to entitle his widow to dower, notwithstanding a mortgage to secure the purchase-money was presently, upon the delivery of the deed, re-executed by him. But as that question does not necessarily present itself, the court forbear to discuss and decide it. It is sufficient in this case, to say, that as the tenant claims title under the seisin of the husband, and no right arising under the mortgage and existing in the tenant, is set up, the tenant can not be permitted to avail himself of a satisfied mortgage in bar of the demandant's right of dower." 1 Hitchcock v. Harrington, 6 John. 290, 294. 3. Hitchcock v. Harrington was approved and followed in Collins v. Torry; and in the latter case the court also held, that where a purchaser deriving title under the mortgagor becomes the assignee of the mortgage, the effect is to discharge the mortgage entirely in favor of the title under the mortgagor. "The mortgage is therefore to be considered as satisfied and extinguished," the court observed," and the title of the tenant relates back, and is founded on the seisin of the husband. In no point of view can the mortgage now affect the demandant's claim." The same doctrine was applied in Coates v. Cheever, the court being of opinion that by a union of the equitable and legal estates the mortgage became extinguished, and as a consequence that the widow of the mortgagor became dowable of the entire estate. "The spirit of the cases cited," said the court, "seems to be this; that where the tenant in possession enters by virtue of a purchase from the mortgagor, then the subsequent purchase of the mortgage by him is an extinguishment, and the widow's right relates back to the purchase by her husband, and she shall recover. But where the tenant enters by virtue of a foreclosure, or after a forfeiture for non-payment of the money, then the estate is deemed never to have vested in the husband, and the widow is not entitled to dower." 4. Thus stood the question in the law courts of New York, in 1823. But in 1812 a case arose in Massachusetts in which the Supreme Court of that State held an entirely different doctrine. The purchaser of an equity of redemption from the administrator of the mortgagor, had paid off the mortgage, and procured the same to be discharged of record. It was held that the widow of the mortgagor, she having joined in the mortgage, was barred of her dower. "When the tenant purchased the equity of redemption," the court said, "it belonged to him to pay the money due on the mortgage, and thus rid his estate of that incumbrance. Having all the equitable interest in himself, when he paid the money due by the mortgage, the legal estate followed the equitable interest, and he became seised of the whole fee simple. If this were not the plain legal operation of the transaction, the law would construe the discharge of the mortgage by the mortgagee a lease of the legal estate by him to the tenant, who had become lawfully possessed of the equitable 1 Collins v. Torry, 7 John. 278, (1810). 2 Coates v. Cheever, 1 Cowen, 463, 479, (1823). interest, and from whom the consideration for that discharge flowed, rather than such a mischief should follow." 5. All the foregoing cases were decided in courts of law. Hitchcock v. Harrington and Popkin v. Bumstead were almost identical in their main features. In the former the title was derived from the heir, and in the latter from the administrator, of the mortgagor. In each case the tenant, while in possession, and necessarily after the death of the husband, had satisfied the mortgage. In the one case the payment was held to entirely extinguish the mortgage, leaving the tenant to rest solely on the title derived from the mortgagor, and consequently to entitle the widow of the latter to dower in the entire estate; in the other case the equity of redemption was treated as an equitable instead of a legal estate, and it was held that the satisfaction of the mortgage debt operated to convert that equitable into a legal estate, and to invest the tenant with the whole fee simple, to the absolute exclusion of dower. It seems manifest, as the law is now settled, that in each of these cases the widow was entitled to dower; but it is very questionable whether in either case she could be lawfully let into her dower in the entire estate except upon contribution of her proportion of the amount paid for the redemption of the mortgage. If she could not, then the proper remedy was by will in equity to redeem. 6. Collins v. Torry and Coates v. Cheever were decided upon. a different principle. In those cases there was no formal discharge of the mortgages, but they were regularly assigned to the respective owners of the equities of redemption. The interest thus acquired, however, was held to merge and become lost in the legal estate, as the equity of redemption was there termed, and hence the assignment was regarded as equivalent to an actual payment and discharge of the mortgages; and, with respect to the right of dower, as attended with the same result. Assuming the merger to have taken place, as supposed by the court, and treating each transaction as a substantial payment by the respective tenants, the question would yet remain, whether, even in such case, they were not entitled to demand contribution before yielding to a claim of dower. It is difficult to perceive how either of these cases is to be dis 1 Popkin ". Bumpstead, 8 Mass. 491. And see Bird v. Gardner, 10 Mass. 364. The early case of Majury v. Putnam, (1793,) 4 Dane's Ab. 183, 676, was to the same effect. tinguished from any other case in which a person claiming under the husband has redeemed a mortgage valid and effectual as against the dower interest of the wife.' 7. Coates v. Cheever and Collins v. Torry were sharply criticised by Cowen, J., in Van Duyne v. Thayre. "In Coates v. Cheever, 1 Cowen, 475, the case of Collins v. Torry is recognised as holding that a purchase of the equity of redemption and entry into possession, followed by an assignment from the mortgagee to the purchaser, shall extinguish the mortgage and entitle the widow to dower; and the court followed the doctrine to that extent, without going back to look at the nature of the extinguishment. The case there adjudged is not like the one now before us, but it certainly shows Collins v. Torry as well as itself to be in conflict with the cases decided in the Supreme Court of Massachusetts, which appear to me to contain the true doctrine. The more Collins v. Torry, on which Coates v. Cheever was founded, shall be considered, the more, I venture to say, it will be found to have been without full consideration."2 S. In 1821, in the case of Swaine v. Perine, the rule as it is now settled, requiring a widow to make contribution, where the heir or other person claiming under the husband has redeemed, was declared and applied by Chancellor Kent. The following is from his opinion in that case: "The plaintiff was a party to the mortgage to Dunn, and her claim to dower was only in the equity of redemption, or the interest which her husband had remaining in the land after satisfaction of the mortgage. Her right of dower was subject to the mortgage; and if the heir has been obliged to redeem the land by paying that mortgage to which the plaintiff was a party, she ought, in justice and equity, to contribute her rateable proportion of the moneys paid towards redeeming the mortgage. The redemption was for her benefit so far as respected her dower. To allow her the dower in the land without contribution, would be to give her the same right that she would have been entitled to if there had been no mortgage, or as if she had not duly joined in it. It would be to give her dower in the whole absolute interest and estate in the land, when she was entitled to dower only in a part of that interest and estate." The doctrine thus announced was afterwards 1 See 12 Law Reporter, 165, 167. 2 Van Duyne v. Thayre, 19 Wend. 162, 171. 3 Swaine v. Perine, 5 John. Ch. 482, 491. |