dissenting.
In the discussion of the legal question presented by the record, I shall confine myself to the sole proposition, whether doxoer, under our law, attaches to property, the deed to which, and mortgage back to secure the purchase-money, was one transaction. Code, section 1753, provides: “Lower is the right of the wife to an estate for life, in one-third of the lauds, etc., of which the husband died seized and possessed.” The argument is, that the right of dower attaches over every lien created by the husband, and, inasmuch as he was seized of the fee to the lands in question, and under our law, Code, section 1944, “a mortgage in this State is only a security for a debt, and passes no title,” that the wife is entitled to her dower; for the mortgage was only a lien created by the husband, and though it was executed at the time of the deed, and for the purpose of securing the purchase-money, still *324holds no higher status than a lien. And under the Code, section 1759, which is as follows: “No lien created by the husband in his lifetime,” etc., “shall, in any manner, interfere with her right to dower,” it is held that the mortgage for the purchase-money shall not interfere, but is subordinate to the legal estate of dower of the wife therein.
I am constrained to differ with the judgment of .the Court upon this question, and at the outset remark, that, in my judgment, the naked declarations of the Code must not be literally construed, but taken with their history in the light of previous legislation and adjudication upon the subject-matter. And this mode of construction is not only reasonable and proper, but is supported by the decisions of this Court. In the case of Phillips vs. Morrison & Solomon, January Term, 1871, in construing the section of the Code releasing sureties, (section 2121,) this Court held the meaning of the Code to apply to principles of justice drawn from the common law, and adjudication of Courts thereon. Now, in construing the section, 1753, giving the right of dower, why shall we not apply to it the principle decided by this Court, in 21 Georgia Reports, 408, as to the effect of transitory seizin in the purchaser, who, at the same instant, encumbers, by mortgage for the purchase-money, the lands? It will be remembered, that when this decision was delivered, a mortgage in this State created only a lien, and not an estate, in the thing mortgaged. Judge Lumpkin says: “The bargainer sells the land to the bargainee, on condition that he pays the price at the stipulated time, and whether this contract, which is one, is contained in the same instrument as it well may be, or in distinct instruments executed at the same time, can make no possible difference. Taking the whole transaction together, it is a conditional sale, and the title never did vest in the mortgagor, except encumbered with the debt, to-wit: the purchase-money.” “Suppose that Wade, after receiving the deed from Barnes, had refused to execute the mortgage, could not the contract have been re*325scinded? Unquestionably. Then it took both the instruments to consummate the agreement. It is like a feoffment and defeasance at common law, which is deemed but one conveyance: 2 Bla. Com., 327; Co. Lit., 236, 6. Where two instruments are executed at the same time, between the same parties, relative to the same subject-matter, they are to be taken in connection, as forming together the several parts of one agreement: 1 John. Cas., 95. Where a deed is given by the vendor of an estate, who takes back a mortgage to secure the purchase-money, at the same time executes a deed, the deed and mortgage are to be considered as part of the same contract, as taking effect at the same instant, and as constituting but one act, in the same manner as a deed of defeasance forms, with the principal deed, to which it refers, but one contract, although it be by a distinct and separate instrument: Holbrook vs. Finney, 4 Massachusett Reports, 569.”
The decision of the Court was not predicated upon the common law, but upon the nature of the transaction; for a mortgage was only then, as it is now, a security for a debt, and passed no title to the land. And we find the same principle sustained by nearly all the American cases. In Maybury vs. Bryan et al., this question was before the Court, Judge McLean delivering the opinion. In that case the mortgage was delivered at the same instant with the delivery of the deed, and it was held that, upon such a seizin, dower did not attach. The doctrine recognized is to the effect, where a man has the seizin of an estate beneficially for his own use, the widow should be endowed, but where a mortgage is given by the grantee at the same time with the conveyance there is no such beneficial seizin in him as will give the right to dower. The same doctrine may be found in Cunningham vs. Knight, 1 Barbour, 399, where it is held that an instantaneous seizin by the husband is not sufficient for a right of dower to attach in the wife ; as where the husband takes a conveyance of land, and at the same time gives *326back a mortgage to secure the purchase-money. In Gammon vs. Freeman, 1 Redfield, 243, we find the same principle; in Boynton vs. Sawer, 25 Alabama, 497, the principle is laid down, “ when the husband purchases and mortgages for the price the mortgage overrides dower.”
This principle we find recognized as the doctrine of the various States, and it stands without an exception. If it be said that these decisions follow the common law, then, under the doctrine applicable to the rights of the wife to-dower in the lands in which her husband was seized during the coverture, the transitory seizin by which, in the first instance, the party was invested could not be, by his own act, without his wife uniting therein, divested to the exclusion of her rights of dower. If the rule under the law where she had to unite with her husband in the relinquishment of her dower prevented the transitory seizin, in such a case from vesting her with a dowable interest, why should such seizin under contract of incumbrance, by which contract the estate itself was procured, be held to be dowable ? The same reason would apply in both cases. I am not unaware of the great liberality with which Courts have been disposed to treat applications for dower, and the principle laid down by the Master of the Rolls that it is not only a legal but a moral right that she should have sustenance out of the estate of her husband. And the policy of the law has been founded upon this acknowledged right. But is it justice, or equity founded either upon legal or moral considerations, that the property of another party, who may have a children of his own, shall be taken for the support and maintenance of another man’s wife? Was it the intention of the Code of Georgia so to change the policy of the law and its acknowledged justice and equity as to appropriate the property which, at the time of the purchase and by the terms of the purchase, was incumbered with a debt due for the purchase-money, and which, by the decision of this Court in 21 Georgia Reports, became virtually a conditional sale ; that is to say, a sale in*327cumbered with a condition for the payment of the purchase-money ? The liens which dower displaces are liens created by the husband. But this, taking the deed and conveyance of mortgage together, is not a lien, but something higher. It is not a thing growing out of the contract, but it is the contract itself, and to dissever it and mutilate it is to rescind the whole agreement and set it aside. Suppose A and B were to exchange deeds to land at common law, by so strict a construction, except their wives united in relinquishment they would be entitled to dower, both of them in both estates. But there was a principle that the common law attached, by which a condition was implied prohibiting the enjoyment of dower in both estates. And in the case at bar, in the purchase of this estate, there was a condition expressed at the time of the contract, and as a part of the contract, that the purchase-money should be paid and the property stand pledged until it was paid. The lien enacted by the husband contemplated by the statutes means the lien created upon something which belonged to the party creating it, and not something by which the estate itself was obtained.
In the language of Judge Lumpkin, the title never did vest “ except incumbered with the debt. When a man purchases land from another, and one of the terms of the purchase is that the land shall be a security for the payment of the purchase-money, all that comes to belong to the purchaser is such an interest in the land as is consistent with the liability in the land to be sold for the payment of the purchase-money.” The rights under the mortgage and the deed vested simultaneously, and it was just as necessary to render the deed good that the mortgage should have been made as it was to make the mortgage good that the deed should have been made. The contract of sale was inchoate until botli were perfected, and the interest the purchaser obtained was an interest upon condition, and could neither be diminished nor enlarged by the fact of his death. Nor can the widow claim any greater estate vested in her husband than he himself acquired under the terms of his contract.