Gage v. Ward

The opinion of the Court was drawn up by

Whitman C. J.

The defendant claims as tenant in dower, as the widow of Jonathan H. Ward, deceased, to whom the premises demanded were conveyed, on the thirty-first day of October, 1835 ; and who, on the same day, re-conveyed the same in mortgage to secure the purchase money. Thus the title stood until the twenty-sixth day of October, 1838, when the aforesaid mortgage was cancelled. Before it was discharged it had been agreed, that the deceased should convey the same premises in mortgage to certain individuals, to whom the deceased’s grantor was indebted, in satisfaction in part of the debt, which the deceased owed him, and to secure the same amount to those individuals; and the conveyance was made accordingly; and, at the sainé time, the former mortgage was cancelled. The question now raised is, was the deceased so seized during his life, that the defendant was entitled to dower in the premises.

It is contended, that the deceased was never seized, except for an instant; and, therefore, that the defendant was not entitled to dower. Numerous authorities are cited by the counsel for the plaintiffs to show that such was the case. But they do not appear to us to apply to such a state of facts as the case exhibits. The mortgagor is seized against all the world, the mortgagee only excepted. Against him he has but a right of redemption ; and of this his widow would be dowable, as our courts have repeatedly decided. A mortgage is but an incumbrance, which may be removed. It might be removed by a widow, she being dowable of an equity of redemption ; and the whole estate would be held by her till she was reimbursed for all she had paid, over and above her share of the incumbrance. The moment an incumbrance is removed, the estate is held the same as if no incumbrance had ever existed upon it. When the first mortgage was discharged, therefore, the first instantaneous seizin, as it was against the mortgagee, was converted into a continued seizin against him, as it was before against all the world besides.

Those, claiming under the last mortgage, as are the plaintiffs here, have no connexion with the former mortgage. They are strangers to it. It is, as to them, as if it never had existed. They cannot, therefore, set it up, whether cancelled or not, to defeat the defendant’s claim of dower. As against them the deceased was seized from the time he took his deed. The arrangement that was made in reference to the exchange of securities can have no bearing upon the point at law; and the courts in this State are not vested with power to take- cognizance of it in equity, if there were any ground for so doing.

Judgment on the nonsuit.