and duration, or by extent of territory, shall contribute according to their relative value when the contribution becomes obligatory; that is, when the debt falls due. 4. According to this rule, when a widow is endowed of an equity of redemption, one-third of the incumbrance should be placed upon the land covered by the dower, and the remainder upon the residue of the land covered by the incumbrance. 5. But it is competent for the dowress, the mortgagee, and the purchaser of the equity of redemption, to agree upon a different mode of apportionment; and if they agree, although by parol, that all of the incumbrance, except a certain part, shall be paid from that portion of the mortgaged premises not covered by the dower, this agreement, when executed, is irrevocable, and a court of chancery will regard it, in apportioning the residue of the incumbrance between the dowress and the purchaser.'

Rule where the holder of the equity has procured an assignment of the mortgage.2

29. In the preceding chapter, the relative rights and obligations of the mortgagee and the dowress, where the former has become the owner of the equity of redemption, are stated and discussed. We come now to the consideration of questions arising where the owner of the equity of redemption, subsequently to the acquisition of that estate by him, has procured to himself an assignment of the mortgage.

30. The Court of Errors and Appeals of New Jersey, in passing upon the right of dower as against a mortgagee who had acquired the equity of the mortgagor, remarked that there was nothing in the case before them which made it necessary to decide whether one who holds the equity of redemption by conveyance, mediate or immediate from the husband, can protect himself from dower by the subsequent purchase of a prior mortgage. These observations fairly imply that, in the opinion of the court, there might be a distinction as to the rights of the

1 Danforth v. Smith, 23 Verm. 247.

2 As to the doctrine of the English equity courts, which permits a purchaser from the husband to protect his estate against dower, by procuring an assignment to trustees of a prior mortgage term for years, and its inapplicability in this country, see ante, ch. 23, 23, note 2.

3 Ante, ch. 23, ¿? 13-21.

4 Thompson v. Boyd, 2 Zab. 543, 551; ante, ch. 23, ? 15.

respective parties in the two classes of cases. On the other hand, in New Hampshire, in a case similar to that determined in New Jersey, it was said of the assignee of a mortgage, who had also become the owner of the equity of redemption, that "he stood in the same position, and had the same rights which he would have had if he had first purchased the equity of redemption, and afterwards had paid the amount of the mortgage, or had taken an assignment of it. In either case, he would be, in equity, and in law, the purchaser and owner of the mortgage by way of redemption." And it will be noticed as we proceed, that some courts have acted upon the idea that a distinction existed; while others have proceeded upon the assumption that both classes were governed by the same general rules, and subject to the same general principles.

31. In Gibson v. Crehore, the equity of redemption of a mortgage in fee was sold by the administrators of the mortgagor. The purchaser paid off the mortgage debt and took an assignment of the mortgage. It was insisted on behalf of the widow of the mortgagor that the payment thus made operated to satisfy the mortgage; that the assignment was mere matter of form; and that the law would give it no other operation than as evidence of payment and discharge of the mortgage. Upon this point, the court said: "No doubt it (the assignment) has this effect against the mortgagee himself; he has received his debt, and can have no further claim; but the question seems to be, whether the interest of the assignee can be preserved against the widow claiming her dower, she having once relinquished it; and the authorities are very satisfactory upon this point. When the purchaser of a right to redeem takes an assignment, this shall or shall not operate as an extinguishment of the mortgage according as the interest of the party taking this assignment may be, and according to the real intent of the parties. Now the interest of the defendant is altogether in upholding the mortgage, and it must have been his intent so to do, or this form of transaction would not have been adopted." The foregoing suit was brought in a court of law. On a bill to redeem subsequently brought by the widow against the same defendant, in a court of equity, the above doctrine was reaffirmed; and it was further held that if the assignee insisted upon it, she must

1 Woods v. Wallace, 10 Foster, 384, 387.

2 Gibson v. Crehore, 3 Pick. 475.

redeem the whole debt in the same manner and upon the same terms as if he were not the owner of the equity. "If the defendant had redeemed the mortgage," the court said, "the plaintiff would have been let in by contributing her portion of the mortgage debt, according to the value of her life estate in one-third part of the mortgaged premises, in conformity with the rule adopted in the case of Swaine v. Perine, 5 John. Ch. R. 482. But as the defendant, being assignee of the mortgage, insists on the payment of the whole mortgage debt, the plaintiff can not redeem on any other terms. After redemption she will hold as assignee of the mortgage, but will be bound to keep down onethird of the interest during her life, and may hold over for the residue of the mortgage debt."

32. The doctrine of Gibson v. Crehore was followed in Carll v. Butman, except that in the latter case the dowress was not required to redeem the entire debt. The facts were as follows: one Holmes mortgaged a tract of land to Jones, and subsequently conveyed one acre out of the tract to Carll, husband of the demandant. Carll afterwards conveyed the acre in question to the defendant, his wife not joining, and the defendant thereupon procured a release of the mortgage from Jones, the mortgagee. In support of her claim for dower, it was insisted by the demandant that the release to the defendant by the mortgagee, operated, not as an assignment, but as an extinguishment of the mortgage. The court held that the mortgage was to be treated as still subsisting, and that the widow must contribute to its redemption. "The sum paid to the mortgagee," they remarked, " was the tenant's own money. It was not paid with a view to extinguish the mortgage, or to pay the debt due thereon, but to purchase the land after the right to redeem was understood to be foreclosed. To regard this purchase as an extinguishment of the mortgage, would be to give a construction. to the deed which neither party could have intended." And in conclusion, they added: "But if she would have her dower, she must pay her just proportion of the sum due on the mortgage. As the value of the whole tract mortgaged, is to the whole sum due on the mortgage, so would the value of the acre of which the husband was seised, be to the amount which that acre should contribute. And of this last sum thus ascertained, the

1 Gibson v. Crehore, 5 Pick. 146. See ante, ch. 23, 22 13-21.

2 Carll v. Butman, 7 Greenl. 102.

widow would be holden to pay the proportion which the present value of an annuity for her life, equal to one-third of the rents and profits, might bear to the value of the whole acre in which she has a claim to be endowed." The same principle was applied in the case of Simonton v. Gray," where the doctrine was thus stated: "If the purchaser of an equity of redemption take an assignment of the mortgage, both estates may stand, though united in the same person. When substantial justice may be promoted, the mortgage will be upheld, or not, according to his intention or his interest. For mergers are not favored in courts of law or in courts of equity. In the case at bar it is for the interest of the purchaser of the equity of redemption, and of those claiming under him, that the mortgage should be upheld against the incumbrance of dower. It would not comport with just principles of law or equity, that after uniting with her husband, and releasing her right, the plaintiff should have dower in that estate. But she is entitled to dower in the equity of redemption, to which her release, and the subsequent conveyance by her husband present no bar; and she can, therefore, redeem the estate. According to the agreement of the parties, a master will be appointed to ascertain the value of her estate in gross, and the annual value. As she must keep down onethird of the interest on the amount due upon the mortgage, the yearly value of her estate will be found by deducting from one-third of the net annual income of the whole estate one-third of the annual interest on the amount of the mortgage debt due. The master will ascertain the value of the net annual income of the whole estate; the amount due upon the mortgage at the date of the demand for dower, and the probable duration of the life of the complainant. From these elements the required results may be readily determined. The sum to be paid to her, for the release of her estate, will be the present worth of an annuity during her life, equal to the net annual value of such estate."3

33. In a previous chapter, reference is made to Woods v. Wallace, and copious extracts are given from the opinion delivered in that case. It was there held that a mortgagee

1 See Wilkins v. French, 20 Maine, 111. [Lovejoy v. Vose, 73 Me. 46.]

2 Simonton v. Gray, 34 Maine, 50.

3 Simonton v. Gray, 34 Maine, 50, 51; accord. Moore v. Rollins, 45 Maine, 498, 495; Barbour v. Barbour, 46 Maine, 9.

4 Woods v. Wallace, 10 Foster, 384; ante, ch. 23, § 19.

who, subsequently to the date of the mortgage, becomes the owner of the equity, stands in the same position as a purchaser of the equity who afterwards procures an assignment of the mortgage; and that the rights of the dowress are identical in both cases. But the court ignored the doctrine of Gibson v. Crehore, in so far as it imposes upon the widow in such a case the necessity of redeeming the entire mortgage;' deeming it sufficient to require her to contribute her fair proportion of the debt, in this respect applying the rule adopted in Carll v. Butman. They regarded it as an idle ceremony, and contrary to well-considered decisions, to exact full payment from the dowress, when the defendant would be entitled to regain his interest in the premises immediately, by refunding to her his share. So the Chancellor of New Jersey, in a case in which the purchaser of the equity had taken an assignment of the mortgage, decreed dower to the widow of the mortgagor upon condition that she kept down one-third the interest of the mortgage debt.3

34. Russell v. Austin' was a case in which the owner of an equity of redemption took an assignment of the mortgage after the death of the mortgagor, expressly to protect himself against dower to the extent of the incumbrance. By the chancellor : "There was no merger of the mortgage in this case by the assignment to Corning, or by the assignment from Corning to the defendant. In the case of James v. Morey, the Court of Errors decided that the question of merger depended on the intention of the person who took the assignment of an out: standing title or estate, provided he had any interest in keeping up the incumbrance, and preventing a merger thereof in his prior estate. At the time of the assignment of the mortgage in this case, the husband was dead, and the wife's right of dower in the premises had become complete. The mortgage was purchased in and assigned instead of being paid off, under the advice of counsel, and for the avowed object of protecting the assignee against the claim of dower, to the extent of that incumbrance. There can, therefore, be no pretence that the mortgage interest was merged by the assignment to Corning, or by the