On the evidence set out in this record we are satisfied that petitioner’s husband was seized of the land in controversy at the time of, and for many years after, his marriage to her. Our conclusion further is that, being so seized, he conveyed the land to Addison White as security for money the latter had loaned to or paid for him. Whether, if this money was a loan, it was advanced by White to enable Hendren to pay for the land and used for that purpose, or loaned to him generally and without reference to any particular object, we regard as an immaterial inquiry. In any view as to that, the money became Hendren’s, and in *248its stead White held Hendren’s obligation to repay a like sum, secured by a,mortgage on this property. Conceding, in other words, that the money was loaned and used to pay for the land, it was, after being loaned, so used, not as White’s money, but as ITendren’s; and White’s rights in respect of the land were referable to the mortgage, and not to the operation of law by which a trust is raised up in favor of him whose funds have been used in the acquisition of title to realty by another ; he was a mortgagee, and not a cestui que trust. And neither his mortgage nor any devolution of title through it could present any obstacle to the allotment of dower by metes and bounds to Hendren’s widow, the present petitioner, since that instrument was executed after seizure and marriage, and was not joined in by her. It is not pretended that the petitioner had ever relinquished her claim to dower. And it follows that she is now dowable of the premises involved here.
But it does not follow that the probate court had jurisdiction to make the allotment. On the contrary, the evidence adduced shows to our satisfaction that “because of the improvements made by the alienee, an assignment of dower by metes and bounds would be unjust;” and in such case the chancery court alone has power to make the allotment, the probate court being without authority to take the improvements into consideration, and hence incapable of doing justice between the parties by a decree having reference to them, or making any allowance to the alienee because of the betterments he has put on the land. — Code, § 1910. It was developed in this case that Morgan, the alienee, had made improvements of the value of from one hundred to one hundred and fifty dollars — quite a large sum in relation to the value of the land itself, which was about five hundred dollars. Manifestly, in alloting one-third of the land by metes and bounds to Mrs. Hendren, she would receive one-third of the value of Morgan’s improvements to which she has no shadow of right. When this state of case developed on the trial, the probate court should have dismissed the petition for dower. Its decree assigning dower must be reversed ; and the cause remanded,
Reversed aizd remanded.