The opinion of the Court was delivered by
Cutting, J.Previous to the coverture, the premises, in which dower is demanded, were conveyed to Timothy Little, in mortgage, to secure the sum of sis hundred dollars. Subsequent to the marriage, and on Dec. 31, 1829, the. husband quitclaimed, with covenant of warranty against the claims of alb persons by, through or under him, the same premises to Robert Barbour, under whom the tenant claims, subject however to the mortgage, which was discharged, on payment of the sum secured, by Robert Barbour.
In Wedge v. Moore, 6 Cush. 8, under a very similar statement of facts, Shaw, C. J., remarks, “He (the tenant,) took his conveyance subject to that incumbrance, and it may be presumed that the consideration paid was less, by the amount of that incumbrance, than he would otherwise have paid. He paid off the incumbrance to clear his own estate, and took a discharge. The tenant must have either agreed to pay off and discharge this mortgage, as a part of the purchase, or, otherwise, he would, if evicted, have a remedy, under his general or special warranty, against the grantor, the demand-ant’s husband. The fact that the tenant obtained a discharge of the mortgage, and did not take an assignment, leads to the conclusion that he was to pay the mortgage himself, as in effect, part of the purchase money. The tenant thus obtained all which his grantor’s deed could give him, namely, the estate described, subject to his wife’s inchoate right of dower.”
We fully concur in the doctrine, as embraced in the foregoing citation, and find no authorities conflicting with it, in this or any other State; certainly none such have been cited in the very learned and elaborate argument of the tenant’s counsel.
At the time then, when the mortgage was discharged, the *14demandant had an inchoate right of dower in the premises in which dower is demanded. But it was only an inchoate right, subject, before it was matured, to be modified, changed, or even abolished by legislative enactment. It could not have matured until the decease of the husband, which was on Oct. 26, 1854, prior to which time, namely, on August 1, 1841, our Revised Statutes went into operation. By c. 95, § 15, it is enacted, that “ If, upon any mortgage made by a husband before intermarriage, his wife shall nevertheless be entitled to dower in the mortgaged premises as against every person, except the mortgagee, and those claiming under him; provided, that if the heir or other person, claiming under the husband shall redeem the mortgage, the widow shall repay such part of the money paid by him, as shall be equal to the proportion, which her interest in the mortgaged premises bears to the whole value thereof; or else she shall be entitled to dower only, according to the value of the estate, after deducting the money so paid for the redemption thereof.”
In this case the tenant claims title under the husband, whose mortgage, made prior to the marriage, he has discharged, and by force of the statute he should be allowed the sum so paid to be marshalled in one of the modes pointed out in the enactment. Had the demandant brought her bill in equity and therein offered to repay such part of the money so paid as would be equal to the proportion, which her interest in the mortgaged premises bears to the whole value thereof, she would have been entitled to a conditional decree to that effect.
But, instead of equity, she has resorted to her common law remedy; by which she is entitled to dower only, “ according to the value of the estate, after deducting the money so paid for the redemption thereof.” Consequently, as the Judge ruled, this action is maintainable and the demandant is entitled to her legal dower in the premises.
Exceptions overruled.
Tenney, O. J., and Rice, Appleton, May, and Davis, J. J., concurred.