delivered the opinion of the Court:
Passing by, as immaterial to the disposition of this appeal, any mere technical questions relating to the character and form of the defensive pleas, the substantial question occurs: Whether the heirs-at-law of Thomas M. Wilkes, the deceased mortgagor, or grantor of the trust deed, have such apparent legal title and right of possession as entitle them to proceed at law by action of ejectment against his widow?
The first proposition on behalf of the appellant is, that the effect of the terms of the grant, to the trustees, their heirs and assigns, and "unto the use of them, their heirs and assigns,” with the specification of a secondary use in respect of the security for the debt, was to vest an immediate legal title in them as bargainees. The argument is: The deed *96expressly creating a use upon a use, the first use only was executed in the grantees by the Statute of Uses, thereby vesting in them a complete legal title subject only to defeasance by their actual reconveyance; the second use, and the grant- or’s equity of redemption, are mere chancery trusts, recognized, and enforceable upon occasion, only in equity.
Technically, this may be correct; bnt a better view would seem to be, that courts of law will now look to the substance rather than the form of such instruments as this — the real intent of the grant — and, as a consequence, regard the title of the trustees as determinable by the real purposes of the uses or trusts.
As a general rule, it is well settled that the nature and extent of a trustee’s title depend, not so much upon the terms of its grant, as upon the purposes and requirements of the trust imposed. Where these are plain and certain, they will limit and restrain the language used in creating the title of the trustee. Poor v. Cosidine, 6 Wall. 458; Young v. Bradley, 101 U. S. 782, 787; Potter v. Couch, 141 U. S. 296, 309; Prey v. Allen, 9 App. D. C. 400, 403; 1 Perry on Trusts, Sec. 312.
It is not necessary, however, to the disposition of the case, that the precise question, as presented, should be determined ; for, whether the deed of trust be regarded as having created a trust, so far active as to maintain the legal title of the trustees, or as a mere mortgage, it is sufficient for all the practical purposes of the appellant’s contention.
Whatever may have been the progressive spirit manifested by courts of law in other jurisdictions in adopting the equitable view of the effect of such conveyances, the courts controlling in this jurisdiction have, in the absence of statutory change, adhered, in the main, to the strict rule of the common law.
Undoubtedly, as between mortgagor and mortgagee and their privies, in the District of Columbia, the effect of either the regular mortgage or the deed of trust as a substitute therefor, has always been considered to vest the legal title in the mortgagee or trustee, subject to defeasance only by the-*97satisfaction of the secured debt. Upon this foundation rest the decisions that the widow of a deceased mortgagor was not entitled to dower in the mortgaged premises, and that the mortgagor has no title or interest subject to the levy of execution. Stelle v. Carroll, 12 Pet. 201, 205; Van Ness v. Hyatt, 13 Pet. 294, 298; Bank v. Guttschlick, 14 Pet. 19, 28; Smith v. McCann, 24 How. 398, 404; Morsell v. First National Bank, 91 U. S. 357.
Por the same reason, it has been held by the Supreme Court of the United States, in cases arising elsewhere than in Maryland or the District of Columbia, that the grantor in a deed of trust, not intended to operate as a mortgage, could not maintain ejectment without a reconveyance, (Lincoln v. French, 105 U. S. 614) ; and that- a mortgagor could not recover possession in ejectment against the mortgagee or his assigns. Brobst v. Brock, 10 Wall. 519; Bryan v. Brasius, 162 U. S. 415, 418.
And, in an analogous case in this court, it was said: “ This equitable title, therefore, was not such as would, ordinarily, maintain an action of ejectment at law for the recovery of the land by the heir-at-law against parties claiming as devisees under the alleged will of the deceased, the grantor in the deed of trust.” Beyer v. Le Fevre, 17 App. D. C. 238.
Whether a mortgagor, remaining in possession by the express terms of the instrument, or by the sufferance or implied consent of the mortgagee, either before or after breach of the condition, can maintain an action of ejectment against one not claiming under the mortgagee; or, in other words, whether such third person can set up the outstanding legal title of the mortgagee, is a question, however, that has never-been expressly decided in this jurisdiction, so far-as we have been able to discover, and it may, therefore, be regarded as an open one in this court.
In Maryland, it has been held, since the cession of the territory of the District of Columbia, that where the mortgage contained a covenant that the mortgagor should remain in possession until default, the latter might recover in eject*98ment, because the covenant, operating by way of redemise, left him the substantial owner both in equity and at law. Georges Creek Coal Co. v. Detmold, 1 Md. 225, 234. See, also, Jamieson v. Bruce, 6 G. & J. 72, 74; Chelton v. Green, 65 Md. 272, 277; Richardson v. B. & D. RR., 89 Md. 126, 129.
And in other jurisdictions, where the distinctions between law and equity, and the idea of a division of title under a mortgage into legal and equitable, prevailed, it has been held that a stranger to an unsatisfied mortgage could not set up the outstanding legal title of the mortgagee as against the right of the mortgagor in possession, even without an express covenant therefor, to recover in ejectment. Den v. Dimon, 10 N. J. L. 184; Allen v. Kellam, 69 Ala. 442, 447; Melenthin v. Keith, 17 Fed. Rep: 583.
If the case at bar presented only the question of the right of the heirs-at-law of a deceased mortgagor, who had remained in possession, either under an express covenant, or by apparent sufferance of the mortgagee, to recover in an action of ejectment against a stranger having no claim under either the mortgage, or the mortgagee, its determination would be embarrassed by the settled distinction between the jurisdictions of courts of law and of equity in the District of Columbia, and by the nonprogressive attitude, so to speah, of the courts of law in respect of the substantial relations between mortgagor and mortgagee created by a formal mortgage.
In such event, it would seem reasonable and just that the rigor of the ancient rule of the common law should be relaxed; and the writer, at least, would be strongly inclined to hold that the title conferred upon the mortgagee, or the independent trustee, to secure a debt, is to be regarded as limited by and to the plain purposes of the grant, and that so limited there would remain in the mortgagor, as against all persons not entitled to claim under the mortgage, a sufficient title to enable him to maintain an action of ejectment.
But, whatever might be the right of the heirs-at-law of a deceased mortgagor to maintain ejecfment against a stranger *99to the mortgage conveyance, we are agreed in the opinion that, in the case aj; bar, they have no such right of possession as against the widow of the deceased mortgagor.
In the first place, she is entitled to dower in the equitable estate of her husband, he having died since the passage of the recent statute changing the former rule of law in that respect. Act June 1, 1896 (29 Stat. 194). It appears from one of the pleas that the defendant and her husband occupied the premises as a home at the time of his decease; that he left no other estate; that during her period of quarantine no dower was assigned to her; and that she remains, in possession by virtue of her dower right therein.
It seems that by the common law (now generally changed in those States where dower exists at all), the widow was regarded as having no vested estate in any particular lands of her deceased husband, and the heir-at-law might even put her out of possession and force her to her writ of dower, or to a bill for its assignment.
The reasons for that rule, founded in the nature of then existing tenures, and specially applying where there might be distinct parcels of land in more than one possession, and also more than one messuage, would appear to fail when applied to present conditions of land ownership in connection with the particular facts of the case at bar. Here there is no other property than the home of which the widow retains an actual possession that was lawful in its origin.
Being in such possession of the only piece of property in which her dower could be assigned, her right thereto ought to confer upon her such continuing right of possession as to bar ejectment by the heirs-at-law, whose duty it was to make the proper assignment. So to hold avoids circuity of action by compelling the heirs-at-law to proceed to assign dower; for, otherwise, she would be cruelly ejected from her only shelter and driven to her action at law or suit in equity for immediate reinstatement in that from which she had been expelled. This seems to be in complete accord with the nrovisions of the act (9 Henry III, Ch. 7, Sec. 1), reaffirming the provisions of Magna Charta, and still in force in *100this District, which reads: “ And she shall tarry in the chief house of her husband by forty days after the death of her husband, within which days her dower shall be assigned her (if it were not assigned her before), or that the house be a castle; and if she depart from the castle, then a competent house shall be forthwith provided for her, in the which she may honestly dwell, until her dower be to her assigned,, as it is aforesaid; and she shall have in the meantime her reasonable estovers of the common.” Comp. Stat. D. C. 36, Sec. 164.
In the next place, the facts show that the defendant is also, the administratrix of the estate of her husband, who died intestate.
His trust deed created an active trust that would, at law,have entitled the trustees to immediate possession had not the instrument contained an express covenant for his remaining in undisputed possession until default in payment.
This covenant operated by way of redemise, as we have heretofore seen, and its technical effect was to create a legal estate for years in the grantor or mortgagor. No default having occurred, and no action having been taken by the trustees on behalf of their cestui que trust to alter the possession, this term devolved as a chattel interest upon the defendant as administratrix.
Upon both grounds, therefore, we are of the opinion that the pleas were good and ought to have been sustained.
It follows that the judgment appealed from' must be reversed, with costs, and the cause will be remanded with direction to enter an order overruling the demurrer to the defendant’s pleas as amended. It is so ordered.
Reversed.