It is conceded that the first instruction asked is one proper to be given. Dower cannot be assigned out of that portion of an estate assigned to another woman in dower, and can only be assigned out of the remaining two-thirds. 1 Cruise, tit. Dower, p. 164.
It is quite clear that the second instruction asked is one which cannot properly be given. By the statement of facts, it appears that the three parcels of land out of which dower is now claimed, together with a fourth parcel in which dower is not now demanded, were, during the lifetime of the husband of the plaintiff, conveyed by him on mortgage to secure a debt of his, and that the plaintiff joined her husband in this deed, and thereby released her right of dower upon the same condition, viz., the payment of the debt, the conveyance to become absolute if the debt were not paid, and to become void if paid. The fourth estate was, after the death of the husband, sold for the payment of all his debts, by his administrator, under a license granted him for that purpose. In the discharge of his duty, to pay all the debts of the deceased, the administrator caused this debt, among others, to be paid out of the proceeds of the sale, under a condition of sale that the purchaser should so apply them. These were so applied, and the mortgage debt paid, and the mortgage thereupon discharged by the mortgagee.
Had this suit been against the original mortgagee, or any person holding under him by assignment, the widow would be estopped, by her release, from claiming dower in more than the equity of redemption. While the mortgage subsisted and until *Page 165 performance of the condition, it was a bar to more. But the mortgage has ceased to exist. It has become void by its own terms, as if it had never been, and with it the release, which has become void by the performance of the same condition. There is nothing, therefore, now subsisting, to bar the widow of her dower.
This precise point was decided in the case of Mathewson v.Smith, 1 R.I. 22, and the wife held entitled to her dower. No authorities were cited in that case, but the reasoning of the court is abundantly supported by adjudged cases in point. One of these is the case of Hitchcock v. Harrington, 6 John. 290, where the mortgage was made by the husband to secure the purchase money of the estate mortgaged. The mortgage was paid off by the purchaser of the estate. Kent, delivering judgment, says the mortgage is paid. The purchaser holds under the title of the husband, and not under the mortgagee. He is in place of the heir, and he cannot set up a satisfied mortgage. The mortgage is for the benefit of the mortgagee only, and, until foreclosed, cannot be set up by anybody but by him, or his assigns. See, also,Collins v. Torry, 7 John. 278; Barker v. Parker andothers, 17 Mass. 564, and the case cited by plaintiff.
It may be asked, what right has the heir to any of the estate of his ancestor without discharging his debt, and what pretence has he to complain of inequity, that the widow, who is a mere surety for the debt of her husband, has been indemnified and saved harmless out of his estate, and his obligation to her has been thus discharged? She had a right to be thus relieved, while any estate of her husband remained sufficient for that purpose, though nothing remained to the heir.
The propriety of the third instruction asked is not apparent, considering the express language of the statute upon the subject. Section 3, of chapter 202, Revised Statutes, page 503, provides that "where dower is legally demandable in more than one parcel of land belonging to the same person, such assignment need not be of a part of each lot or parcel, but may be together in one lot as the interest and convenience of the widow and the heir or person having the next immediate estate of freehold shall require." *Page 166
Without any evidence that the interest or convenience of the parties requires what is here asked, we must leave it to the commissioners who are to view the estate, and will be able to judge what that interest or convenience may render necessary, and who can best do entire justice to the parties in this respect, to assess the dower in the mode they may judge best for the parties.