Upon the facts agreed, the court are of opinion, that the demandant is entitled to recover her dower in the whole of the described premises, her husband having been seized thereof during the coverture.
First, as to the release of dower. The only mortgage, in. which the demandant joined with her husband to release her dower, was that to the life insurance company, and the case expressly finds, that that mortgage was discharged on payment of the debt. The release of dower was incident to the estate conveyed in mortgage, which was a defeasible estate,' and when defeated by the payment of the debt, the release of dower fell with it, and was avoided as if it had never been made. Had the mortgage been foreclosed, and the defeasible estate thus become an absolute title, the release of dower incident to it would have become absolute with it and barred the claim of the widow.
The only circumstance, relied on to obviate the conclusion from these plain propositions is, that the mortgage to the Massachusetts Hospital life insurance company was paid, and the discharge of the mortgage procured by the tenant. This, we think, can make no difference. He 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 either have agreed to pay off and discharge this mortgage, as part of the purchase, or, otherwise, he would, if evicted, have had a remedy, under his general or special warranty against the grantor, the demandant’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 the wife’s inchoate right of dower.
As to the other point, the case finds, that the demandant’s *11husband had a deed from his father of one undivided half of the mill lot; that he occupied the lot, took upon himself to convey the whole, which gave him a freehold by disseisin; and the only title, by which the tenant claims the whole, is a deed from the demandant’s husband; he is therefore estopped from denying his grantor’s seizin.