(dissenting.) The plaintiff’s husband, in April, 1829, during coverture, conveyed the premises in question to Baker, subject to a mortgage thereon, executed by the husband and the plaintiff to secure the payment of the purchase money to Gramber, the former owner. At the time of the conveyance the husband had paid $400 on the mortgage, and the balance remaining unpaid was $1200, which Baker subsequently paid, and the same was satisfied of record. The defendant is in as a purchaser from a person deriving title from Baker, and the question arises whether in such a case the widow can recover her dower, in an action at law; or whether she must not resort to equity, and pay or offer to pay her due proportion of the mortgage sale.
Where the purchaser of real estate gives a mortgage to secure *543the purchase money, the interest of such purchaser is a mere equity of redemption, as against the mortgagee and those claiming through or under him. As against the mortgagee, in such case, and those claiming under him, the widow is not entitled to dower in the land, but she may claim it against all other persons. (1 R. S. 741, § 5.) This presents the distinct question whether Baker, who took the equity of redemption by conveyance from the husband of the plaintiff subject to the purchase money mortgage, and afterwards paid it off, can be said to claim under the mortgage, within the meaning of the statute. Several cases have been decided by this court nearly if not precisely analogous to this in principle. In Hitchcock v. Harrington, (6 John. 290,) the heir of the husband released his interest to a tenant in possession, who paid off a mortgage upon the land, given by the husband to secure the payment of the purchase money. In Collins v. Torry, (7 Id. 278,) the husband conveyed, leaving a similar mortgage outstanding, and the purchaser purchased and took an assignment of it from the mortgagee. Such also was the case of Coates v. Cheever, (1 Cowen, 475.) In the two last cases the court held that the mortgages, and the estates respectively created by them, were merged in the superior title by the assignment, and thus extinguished. And in all of them it was distinctly adjudged that where such mortgages were thus extinguished, either by purchase or direct payment, they could not be set up against the widow’s claim of dower. These decisions stand in part upon the principle that the purchaser from the husband who has extinguished the mortgage by purchase or payment instead of foreclosure, is es-topped from denying the seisin of the husband, as against the widow claiming dower in the premises, and in part upon the ground that the mortgage being extinguished there was no estate out of the husband that could be set up. All the cases agree that as against the mortgagee for the purchase money' and those claiming under him, there is no seisin in the husband; the title of the mortgagee is paramount. So far as these oases rest upon the ground of estoppel by reason of a conveyance from the husband by mere release or quit-claim, they are entirely over*544turned by the case of Sparrow v. Kingman, (1 Comst. 242.) In James v. Morey, (2 Cowen, 246,) it was held by the court of last resort that the question of merger depended upon the intention of the person who took the assignment of an outstanding title or estate, provided be had any interest in preventing the merger. And such has ever since been regarded as the rule. This is another feature in which Collins v. Torrey and Coates v. Cheever were not well considered.
But the authority of all three of the cases has been severely shaken, if not entirely overthrown, by the decision of this court in Van Dyne v. Thayer, (19 Wend. 162.) In that case the husband conveyed the premises to the heirs of the mortgagee in satisfaction of the mortgage, and the court held that the widow was entitled to dower in the equity of redemption merely, and could not recover it in an action at law. The principle of that case seems to me decisive of this. The only difference in the two cases is that there the husband conveyed to the heirs of the mortgagee, and here to a third person subject to the mortgage. In both eases the object of the conveyance was to assign the husband’s equity of redemption merely, and to effectuate an extinguishment of the mortgage. It would manifestly be grossly inequitable, after a party who has purchased a mere equity, subject to a superior outstanding estate, has been compelled to purchase that estate in, or quiet or extinguish it by payment, to subject him to the widow’s claim for dower in the superior estate derived from another, instead of the inferior one acquired from the husband. Such an adjudication would seriously mar the symmetry and perfection of the legal rule. It ayouM give to the Avidow the benefit of an estate of which her husband Avas never seised, but which the party had been compelled to acquire elseAvhere. By the conveyance here, Baker took the premises from the plaintiff’s husband precisely as the latter held it. The mortgage, as to both, Avas a superior estate, and neither had any seisin as against Gamber, the mortgagee, for the purchase money.
The plaintiff Avas then dowable of the equity of redemption merely. Her husband had no other estate, and conveyed no other to Baker. Baker converted that into an absolute estate *545in fee by extinguishing Gamber’s superior outstanding estate and thus investing himself with it. This was done in pursuance of the agreement with the plaintiff’s husband, and as the end and purpose of the conveyance. Baker was in no sense a stranger to Gamber’s title, but was subjected to it in terms by his agreement, and when be bought or extinguished it, he did it to perfect or secure his own title, and not for the benefit of his grantor or the plaintiff. Had he taken an assignment of the mortgage, instead of causing it to be satisfied, it would, I take it, as the rule is now settled, have been an effectual bar to the plaintiff’s claim at law. (Russell v. Austin, 1 Paige. 195. James v. Morey, 2 Cowen, 246.) It seems to me it can make no difference in principle that Baker chose to cancel the Gamber mortgage, instead of taking an assignment of it to himself; the difference in such a case is merely of form, not of substance. The satisfaction, in no way that I am able to perceive, upon principle, strengthens the plaintiff’s claim or weakens the defendant’s. The controlling fact still remains unaffected, that the superior title which stood in the way of the plaintiff’s right of dower in the premises, was never in the husband, and did not come to the defendant and those under whom he claims through the husband. This precise question was decided in the supreme court of Massachusetts, in Popkin v. Bumstead, (8 Mass. Rep. 491.) That was a case of payment and satisfaction of the mortgage by the person holding the equitable title from the husband, and the court held that the payment of the mortgage, under such circumstances, gave the widow no claim to dower. And the court say, “ When the tenant purchased the equity of redemption, it belonged to him to pay the money due on the mortgage and thus rid his estate of that incumbrance. Having all the equitable interest in himself when he had paid the money due by the mortgage, the legal estate followed the equitable interest and he became seised of the whole fee simple. If this were not the legal operation of the transaction, the law would construe the' discharge of the mortgage by the mortgagee, a release of the legal estate by him to the tenant, who had become lawfully possessed of the equitable interest, and from whom the
*546[Monroe General Term, September 2, 1850.consideration for that discharge flowed, rather than such mischief should follow.” .Cowen, justice, in Van Dyne v. Thayer, cites this, case with approbation, also Gibson v. Crehore, (3 Pick. 475, and 5 Id. 146,) and says that they seem to him to contain the true rule.
It seems to me clear that the defendant is a person claiming under the mortgagee of the plaintiff and her husband, within the true intent and meaning of the statute, and that he is not estopped by reason of the conveyance from the husband, or precluded by the discharge of the mortgage, from setting up the mortgagee’s title, in bar of the plaintiff’s action at law. I put this distinctly upon the ground that the husband conveyed his interest in the premises, which was but an equity of redemption subject to the mortgage, and agreed with his assignee or grantee that the latter should extinguish the mortgage. That such grantee was not a mere naked holder of the husband’s rights or interest, and a stranger to the mortgagee’s title, or a mere volunteer in extinguishing the mortgage. If there are any cases in this court which hold a contrary rule, in such a case, I have no hesitation in saying that they ought not to stand as the law of the land. The plaintiff should be entitled to her dower in the equity of redemption which her husband had during the coverture and conveyed or assigned, and which she may recover in equity by paying her proportion of the mortgage debt. As this disposes of the whole case, it is unnecessary to notice the other questions raised by the bill of exceptions.
I am of opinion that a new trial should be granted.
Hew trial denied.
Welles, Selden and Johnson, Justices.]