delivered the opinion of the Court in Cumberland, at the adjournment of May term in August following.
The plaintiff demands her dower in two tracts of land; one of the tracts contains six acres; of which she has not been endowed. As to the other tract, she has had her dower assigned to her in one moiety of the same ; and, unless upon the principle of estoppel, she is not entitled to dower except in one moiety of this tract; nor in any part of the six acres ; because Thomas Mason was not seised of the freehold, but only the inheritance of the tract of six acres, during the coverture ; nor of more than one moiety of ihe other tract. St *245appears that although such was the seisin of Thomas Nason, still, on the 6th of May 1824, by his deed of that date, he conveyed both the lots in fee and in mortgage to Allen the tenant, who afterwards commenced ati action, counting on the mortgage deed, and recovered judgment for the premises, that is, both tracts. And the counsel for the plaintiff contends that as the defendant claims the premises under the deed of her husband, with the usual covenants of seisin and warranty, and also under the judgment he has recovered, he is on legal principles estopped to deny the seisin of the husband as alleged in the writ. If he is so estopped, then the facts set forth in the statement, shewing that the husband was not so seised during the cover-ture, are to be considered as out of the case, aud so arc not to be re - garded. We place the cause on this ground, because we do not perceive that the release from the tenant to Thomas ,Nason, bearing date March 31, 1815, can have any bearing in the decision of it. The question then is, whether the tenant is estopped to deny the alleged seisin of the husband ?
In the case of Taylor, 54 Eliz. (cited in Sir W. Jones, 357) it was held that if a tenant at will, or for years, made a feoffment in fee and died, and his wife brought dower against the feoffee, he could not plead that the husband was not seised. In that case it was evident that, independent of the estoppel, there was no estate in the husband, whereof the wife was dowable. In Bancroft v. White, 1 Caines 185, the same principle was urged by counsel and admitted by the court. In Hitchcock & ux. v. Harrington, 6 Johns. 290, the facts were, that the former husband of Ann Hitchcock, one of the plaintiffs, was .Moses JYorthop ; and the defendant claimed under a conveyance from the son and heir of JYorthop. Kent C. J. in delivering the opinion of the court says, “ The objection of the want of seisin in the husband cannot be received from the defendant, as he holds under the husband, by a conveyance from his son and heir. In Collins v. Torrey, 7 Johns. 278, the same principle was recognized and applied. Tn Hitchcock & ux. v. Carpenter, 9 Johns. 344, it appears the wife’s former husband was one Ferris, and the defendant claimed to hold under the heirs of Ferris. The court say, “ as he defendant claims under the heirs of Ferris, ho is estopped from *246denying the seisin and death of the former husband of the demandant.” In Kimball v. Kimball, 2 Greenl. 226, the same principle was adopted by this court. In that case the defendant claimed under the deed of the demandant’s husband. A similar case came before us in the county of Kennebec, and was decided in the same manner. The decision was not reported. In the cases above mentioned, the defendants claimed and held by virtue of absolute conveyances ; whereas, in the present case, the defendant claims and holds as mortgagee, and under a judgment on the mortgage ; but we are not aware that the difference in fact makes any in principle. The defendant claims title under it, and he may avail himself of the covenants in the deed, after his title shall have become absolute, and dower been assigned to the plaintiff, "and. recover such damages as he may sustain in consequence of the assignment of dower. Porter v. Noyes, 2 Greenl. 22. And if the estate should never be redeemed, then the defendant could never suffer any injury by reason of such assignment. There must be dower assigned to the demandant in the six acres, and in one moiety of the other tract; her dower in one moiety of the same having already been assigned to her $ and judgment be entered accordingly j and for such damages as may be asssessed by the person appointed by the court for that purpose.