Grant v. Dodge

Hathaway, J.

When the husband is seized, for an instant, of this seizin the wife shall not be endowed, but if he continue seized, for any portion of time, however short, the wife is entitled to dower. The seizin for an instant is where the husband, by the same act, or by the same conveyance, by which he acquires the seizin, parts with it. Holbrook v. Phinney, 4 Maine, R., 666; Stanwood v. Dunning, 14 Maine R., 290; Gammon v. Freeman, 31 Maine R., 243.

The demandant’s husband, William Grant, became seized, by virtue of his deed from Walton. On the same day that he received his deed, he reconveyed the premises, in mortgage, to secure the payment of a note, which may have been for the purchase money, or for something else.

The mortgage may have been executed when he purchased the land and received his deed, or subsequently.

If the tenant would defeat the demandant’s claim of dower, the burden is upon him to prove that the deed and mortgage constituted one transaction, which the facts agreed do not show, and when a case is presented on facts agreed, any fact which might be pertinent to the question submitted, and does not appear, is presumed not to exist.

Tenant defaulted.

Tenney, C. J., and Rice, J., concurred; Cutting, J., and Goodenow, J., concurred in the result; Appleton, J., did not concur.