dissented. The demandant, as the widow of Timothy Slow, deceased, claims her dower in lands purchased by her late husband after their intermarriage. He paid part of the consideration money, and for securing the residue, mortgaged the lands. After his death, the mortgaged premises were sold pursuant to the statute, and purchased by the person under whom the defendant claims ; and the only question is, whether the husband was so seised as to entitle his wife to dower.
*465In the case of Hitchcock v. Harrington, (6 Johns. Rep. 249.) this point was stated, but not decided by the court. It has long been considered the settled "law in this state, that a mortgage is a mere security for money, and the mortgagor is to be deemed seised, notwithstanding the mortgage, as to all persons, except the mortgagee and his representatives. The seisin of the husband, in this case, cannot be considered that mere instantaneous seisin, which the books speak of as not being sufficient to entitle the wife to dower. Those are cases where the husband is a mere conduit pipe, or instrument of conveyance. This is evidently the meaning of Lord Coke, where the rule is laid down. (Co. Lit. 31. b.) It is more fully illustrated by Sir Wm. Blackstone, in his Commentaries, (vol. 2. 131.) where it is said, that the seisin of the husband, for a transitory instant only, when the same act which gives him the estate, conveys it, also, out of him 5 as where, by a fine, land is granted to a man, and he immediately renders it back by the same fine, such a seisin will not entitle his wife to dower, for the land was merely in transitu, and never rested in the husband, his grant and render being one continued act. But if the land abides in him, for the interval of but a single moment, the wife shall be endowed thereof.
Where a title is conveyed to a person, and he gives back a mortgage, the fee is certainly vested in him, substantially and beneficially, and not nominally; otherwise, the mortgage back would convey no title. The case of Nash v. Preston, (Cro. Car. 190.) is very much in point, to show that the widow is entitled to her dower. There was a bargain and sale of land to the husband, under an agreement, that the bargainee was to redemise it to the bargainor and his wife, during their lives. The bargainee redemised and died, and his widow was considered entitled to dower. For, say the court, by the bargain and sale, the land is vested in the husband, and thereby the wife is entitled to her dower. This question of instantaneous seisin is well considered by Gwillim, in a note to the late edition of Bacon. (2 Bac. Ab. 371. note.) It is there said, that the proposition, that in the case of an instantaneous seisin, the wife shall not be endowed, though laid down broadly by Coke, is, by no *466means, general; he confines it to cases where the husband is a mere instrument of passing the estate. The transitory seisin gained by such an instrumentality is not enough to entitle the wife to dower; but when the land abides in the husband, for a single moment, as is said by Sir Wm. Blackstone, or as a later writer explains it, (Preston on Estates, tit. Dower,) when he has a seisin for an instant, beneficially for his own use, the title to dower shall arise in favour of his wife. The case of Holbrook v. Finney, (4 Mass. Rep. 566.) has been cited, and relied upon, as in point against the claim of dower. Whatever respect may be due to the opinion of Ch. J. Parsons, he certainly stands unsupported by any adjudged cases to be found in the English books, or by any elementary writer, when fairly explained. In none of the cases referred to by him in his opinion was the husband ever beneficially seised, for an instant; and the distinction which he attempts to make between the case of Nash and Preston, and the one before him, is certainly not well founded. In the case of Nash and Preston, the redemising was a part of the original agreement; yet the wife of the bargainee was held entitled to dower. So in Holbrook and Finney, the deed and mortgage were executed in pursuance of a previous agreement to the same effect, made between the parties. The two cases, therefore, in this respect, are alike. Ch. J. Parsons seems fully to admit the law as laid' down in Nash and Preston; and it is a little difficult to understand wffiat he means, by saying that the giving the deed, and taking the mortgage back, constitute but one act, unless the two deeds, being parts of the same contract, are but one act. But whatever importance may be attached to this circumstance, the argument cannot be applied to the case before us, because, it formed no part of the original agreement, that a mortgage Was to be given back.
I do not see how our statute, to prevent judgments having a preference to mortgages given to secure the purchase money, can in any manner afíect this question. It is true, ■ that the first act, (sess. 28. ch. 99.) contained a recital, pur? porting that doubts had arisen, whether mortgages given to secure the purchase money of lands sold and conveyed at *467the time of the execution of such mortgages, are to be preferred to judgments previously obtained against the mortgagors. and then provides for giving a preference to mortgages thus taken. But this act has no relation to mortgages, in any other respect, than to give them a preference to judgments in that particular case. And it is to be observed, that the right to sell land under a judgment, the lien created by such judgment, and the time such lien is to take effect, are all matters of statute regulation. This act only modifies the former statute, and suspends the lien of judgments in such particular cases. But the right to dower depends on different principles. It would, no doubt, be competent to the legislature, to take away or regulate the claim to dower, in cases like the present; but until that is done, we must be governed by the common law rules on this subject; according to which, I see no grounds upon which the claim to dower in this case can be resisted. I am, accordingly, of opinion, that the demandant is entitled to judgment.
Sed per Curiam.
Judgment for the defendant.