The land in which the plaintiff claims dower was conveyed to her husband, during her coverture, by one Thomas Nesmith, and at the same time mortgaged back as security for the. payment of a portion of the purchase money. Whatever the law may have formerly been, it is now cleai’ly settled that the widow is dowable of an
The plaintiff did not join with her husband in the mortgage which he subsequently gave to Ayer. It may be conceded, then, that the plaintiff is entitled to dower in the land, as against all persons except the holder of the Nesmith mortgage. No question is raised as to the discharge of this mortgage. It is alleged in the bill that the " said Nesmith executed an assignment of the first named mortgage to said Ayer, which was duly acknowledged and recorded, whereby the said Ayer became the owner and holder” thereof. Also that said Ayer, to the "present time, holds under said mortgages.” Besides, the plaintiff only claims dower in the equity. Were it otherwise, the facts appearing in the bill require that it should be upheld. It takes nothing from the widow, as she never had even an inchoate right of dower, as against that mortgage. The consideration of the assignment was not paid with funds belonging to the estate, or by any one so connected with the husband or his estate, by contract or otherwise, as to make it his duty to pay the mortgage. Besides, it was clearly the intention of the parties that it should not be discharged. As the widow loses nothing by the assignment, there is no equitable reason why she should be benefited by it. Brown v. Lapham, 3 Cush., 554.
The widow, having a right of dower subject to this mortgage, stands in the relation of a mortgager thereto, to the extent of her interest. Her estate is a continuation of that of her husband’s, and, so far as relates to this mortgage, to the extent of her interest, she has the same rights and is subject to the same liabilities, as would pertain to him if living. One of those rights is that of redemption. Carll v. Butman, 7 Maine, 102; Gibson v. Crehore, 5 Pick., 148.
True, she is not the only mortgager. The defendant Ayer is an owner of that interest with her, and hence, he
The result is that the parties stand in relation to each other as mortgager and mortgagee. If the plaintiff wishes to redeem, she must bring her bill as provided by the statutes for the redemption of mortgages. If the defendants consent that she may redeem her interest, then she may do so; if not, she must redeem the whole. In either event, before she can compel the defendants to answer, she must comply with all the requisites'of the statutes. This she has not done, having neither made a tender of the amount due, nor a demand for an account under the 13th section, c. 90, R. S.
This bill cannot be sustained under § 14, c. 103, R. S., because, among other reasons, the mortgage has not been discharged. Demurrer sustained.
Bill dismissed.
Oosts for defendants.