when he first sold his interest to Churchhill, did not render that executory agreement void, but voidable, only. . . . . Consequently, as the verbal sale by Oldham was valid until avoided, the fact that there was no written memorial of it, had no other effect on it than the other fact of his infancy at the date of it, and which only furnished ground for avoiding it if he elected to do so before a confirmation. . . . . And therefore, as he, in good faith, only executed after his marriage, an ante-nuptial contract transferring his beneficial interest in the lot, and which contract he could not either honorably or justly have avoided, his deed of conveyance had relation to the date of that executory agreement, and overreached, or rather extinguished her initiate right to dower." In Gaines v. Gaines, it was decided by the same court that the principle excluding dower in these cases applies also where a bona fide gift of lands is made before coverture, to a child by a former marriage, who takes possession and makes improvements, claiming the lands as his own, and receives a conveyance from the donor after the second marriage of the latter. But in the case of a sale of lands before marriage, if the vendee neglect to make payment, and the vendor during his lifetime, or his representatives after his death, elect to rescind the contract, instead of going for a specific performance, the beneficial interest of the vendor in the lands will revest in him in the one case, and in his heirs in the other, and his wife consequently be entitled to dower.2 Charges created before marriage. 22. It is obvious that, as the husband may, by aliening his lands at any time before marriage, altogether intercept the title of dower, and prevent it from ever arising, he may, under the same circumstances, create derivative interests or charges which shall be good against the wife when her title to be endowed is complete by his death. Thus his leases, his statutes, or recog nisances are all binding on the wife, and she will hold the 1 Gaines v. Gaines, 9 B. Mon. 295. See, also, Firestone v. Firestone, 2 Ohio St. 415. 2 Kintner v. McRae, 2 Carter, (Ind.) 453; Dean v. Mitchell, 4 J. J. Marsh. 451. 3 Eng. Lutw. 230; Winch, 80; Wheatley v. Best, Cro. Eliz. 564; Co. Litt. 32, s.; Stoughton v. Leigh, 1 Taunt. 410. 4 Jenk. Cent. p. 36. lands assigned her in dower, subject to them; and although the husband was tenant in tail, and made a lease unauthorized by the statute, yet it will be binding upon the wife.' 23. It may, however, be observed, as incidental to this point, that if the husband, previous to marriage, acknowledge a statute or recognisance, and afterwards die, leaving his heir within age, and part of the land is assigned to the wife for her dower, it shall not be extended during the non-age of the heir; for all the land is liable pro rata; and as the land of the heir within age can not be charged, so neither shall the land of the dowress, for otherwise the whole burden would fall upon her. But if all the land should be assigned her for her dower, it would be liable to be extended during the minority of the heir. And it seems, even in the former case, that the non-age may be relieved against in equity.3 Mortgages. 24. Where the husband has mortgaged his lands at a date anterior to the marriage, his wife is dowable only of the equity of redemption. This rule is sufficiently discussed and explained in a previous chapter.* 25. In cases of this character the dower interest of the wife is subject to the incumbrance, and if there be a foreclosure or sale under the mortgage after the marriage, her interest in the lands is entirely extinguished, although, as we have seen, she may, as a general rule, be dowable of the surplus, if any, remaining after 12 Prest. Conv. 132; Park. Dow. 162. And see Earl of Bedford's case, 7 Co. 67, 9, a. In Kentucky it is provided by statute that the wife shall not have dower, where a sale is made after marriage to satisfy a lien or incumbrance created by the husband before marriage, except as to the surplus, when not disposed of by the husband. Sec. 6, art. 4, ch. 47, Ky. Rev. Stat. 393; Stanton's Rev. vol. ii. p. 26, 6. [For a construction of the act see Melone v. Armstrong, 2 Rodman, 248.] 2 Jenk. Cent. pp. 36, 37. 3 Middleton v. Shelly, 1 Lev. 197, 198; Park, Dow. 236, 237. 4 Ch. 23; Heth v. Cocke, 1 Rand. 344; Reed v. Morrison, 7 Serg. & R. 18; Smith v. Eustis, 7 Greenl. 41; Carll v. Butman, Ibid. 102; Hartshorne v. Hartshorne, 1 Green's Ch. 349; Montgomery v. Bruere, 1 South. 260. Dower cannot be claimed by the widow of the son in opposition to a lien by act of assembly, which bound the land in the lifetime of the father. Lane and Wife v. Gover, 3 Har. & McH. 394. 5 Mantz v. Buchanan, 1 Md. Ch. Decis. 202; McMahan v. Kimball, 3 Blackf. 1; Fry v. Merchants' Ins. Co., 15 Ala. 810; Davidson v. Graves, 1 Bailey's Ch. 268; Newton v. Cook, 4 Gray, 46. satisfying the mortgage debt.' And where it was provided by statute that a widow's dower should not be considered as sold or extinguished by a sale of the husband's property by virtue of any decree, execution, or mortgage to which she was not a party, this enactment was held to have no relation to decrees or other incumbrances existing previously to the marriage. But while a court of chancery will make the security available to the mortgagee, it will also take care that the interest of the widow is not affected more than may be necessary to protect the mortgage debt, and insure its payment.3 Release of the equity of redemption during coverture by the husband alone. 26. In Jackson v. Dewitt, the husband purchased lands prior to his marriage, and received a deed therefor, and at the same time gave back a mortgage to secure the payment of a portion of the purchase-money. After his marriage he reconveyed the lands to the mortgagee in satisfaction of the purchase-money yet remaining unpaid, his wife not joining in the conveyance. She survived him, and the question arose whether she was entitled to be endowed of the premises. The court held adversely to her claim. "From the case of Stow v. Tifft, 15 John. 458," remarked Woodworth, Judge, in delivering the opinion of the court, "it is evident that, up to the time that Depuy released, his wife could have no claim of dower; for the husband had an instantaneous seisin, only. If the release operated as a discharge of the mortgage merely, the widow became entitled to dower, the husband being considered as having been seised ab initio. 6 John. 294. But there was no actual payment of the mortgage, leaving the husband seised. There was a merger, by which, it is true, the mortgage was satisfied; but the same act annihilated the mortgagor's title. There was not a moment of time between the discharge of the mortgage, and the vesting of the title in the mortgagee. It was all done uno flatu. If, then, no right of dower existed the moment previous to the merger, (and clearly there did not,) and if the release extinguished all 1 Ante, ch. 23, ¿? 24, 25, and cases there cited; Nottingham v. Calvert, 1 Ind. 527 ; 1 Washb. Real Prop. 203, 17; 4 Kent, 45; Chew v. Farmers' Bank, 9 Gill, 361. 2 McMahan v. Kimb: 11, 3 Blackf. 1. See Cunningham v. Knight, 1 Barb. 399. 3 Fry v. Merchants' Ins. Co., 15 Ala. 810. 4 Jackson v. Dewitt, 6 Cow. 316. the title the mortgagor ever had, it follows that there never was an instant of time in which the widow was entitled to dower." 27. In Rands v. Kendall, a mortgage, given by the husband had become absolute before his marriage, and during the coverture he executed a release of the equity of redemption to the assignee of the mortgagee, and it was held that the dower of his wife was thereby defeated. This decision was placed upon the ground that by reason of the forfeiture of the condition of the mortgage, the husband, at the date of the marriage, as against the mortgagee, had but an equity in the land, which it was in his power to surrender by his individual act during coverture, the statute of that State giving dower in such equitable estates only as the husband was possessed of at the time of his death. "Complainant's counsel contend," say the court, "that as it [the mortgage] was a simple security for the payment of a debt, the mortgage is a mere incident to the debt, and that although the condition is broken, yet that the legal title to the land remains, as before, in the mortgagor. The modern decisions and the decisions of this court, to a certain extent, favor this opinion. It has been repeatedly held that an execution might be levied on the land, the mortgagor being in possession; that the mortgagor was to be considered as having the legal title. But it has never been so held but with this restriction; that as between the parties to a mortgage, the deed, after condition broken, becomes absolute. As to all the world but the parties, the legal title is considered as in the mortgagor; but as between the parties and those claiming under them, the legal title is vested in the mortgagee. I think I am, not mistaken in saying that such. has been the uniform language of the court; and therefore it is, that after condition broken, the mortgagee may recover the possession of the land in an action of ejectment. Without the legal title he could not so recover. Such being the law, it follows, that the condition being broken by the non-payment of the interest, which fell due on the 24th April, 1824, the legal title then became, as between Ferguson and Coleman, vested in Ferguson, and was never afterwards vested in Coleman. It was after this period that his marriage with Rachel Rand took place, and during the coverture he had not an estate of inheritance in the land in which dower is demanded. . . Having but an ... 1 And see 4 Kent, 45; Cunningham v. Knight, 1 Barb. 399. equity, he could transfer it by his own deed, and thereby defeat his wife of dower." Read, J., delivered an able dissenting opinion, in which, upon a full review of the authorities, he maintained that by the settled law, the mortgagee, even after condition broken, and until foreclosure, is regarded at law as well as in equity, as a mere creditor, having a specific lien on the property for the payment of his debt. He insisted, as a necessary result of these premises, that in the case under consideration, the husband, during the coverture, was seised of an estate of inheritance within the meaning of the act relating to dower, and consequently that the widow was entitled to a decree. 28. The doctrine of the foregoing cases is opposed to the general current of authority. In Lund v. Woods,' lands were conveyed to the husband during the coverture, subject to an outstanding mortgage. He subsequently released the equity of redemption to the mortgagee, the wife not joining. It was held that she was not barred, but might claim dower upon redeeming the lands. So in Van Duyne v. Thayre, the husband mortgaged the premises before coverture, and released to the heirs of the mortgagee after the marriage, his wife not joining. Her right to be endowed in equity, upon redeeming the mortgage, was not denied. In speaking of the case of Jackson v. Dewitt, the court, in Wheeler v. Morris, used this language: "The defendant in ejectment was in possession under the title of the mortgagee, and it was held that the widow of the mortgagor could not maintain the action to recover her dower. The ruling must have been the same had that been a case in which her husband had been a purchaser of the premises subject to the mortgage. All, therefore, which was necessarily involved in, or decided by, these cases, was, that the conveyance to the husband, who gave back a mortgage for purchase-money, did not give him such a seisin that the right of dower of the wife attached, intermediate the deed and the mortgage; and therefore that she could not maintain an action at law against the mortgagee, or those claiming under him. As against them, she was not entitled at law to dower." The point was more elaborately discussed in Mills v. Van Voorhis. "Both these cases, 1 Lund v. Woods, 11 Met. 566. 2 Van Duyne v. Thayre, 19 Wend. 162. 3 Wheeler v. Morris, 2 Bosw. 524, 531. Mills v. Van Voorhis, 23 Barb. 125; s. c. 20 N. Y. (6 Smith,) 412. |