Stow v. Tifft

Spencer, J.

delivered the opinion of the court. The demandant’s right to recover her dower depends on the nature of her husband’s seisin. Timothy Stow, her husband, purchased the premises in question after his marriage with the plaintiff, and paid part of the consideration money; and for securing the residue, he, at the time of receiving his conveyance, executed to the grantor a mortgage of the same premises. After his death, the premises were sold under a , power contained in the mortgage, and the defendant holds under that sale. The question to be decided is, whether there was such a seisin of the husband of the demandant, as to entitle her to dower. This depends on the single point, whether the seisin' of the husband was an instantaneous seisin or not. If it was an instantaneous seisin, then, according to all the authorities, the wife is not endowable. This general position is met with in all our books, that the husband’s seisin for an instant, does not entitle the wife to dower. This is exemplified by the case of Amcotts v. Catherick. (Cro. Jac. 615.) There the husband, who was seised in special tail, made a deed of feoffment to the use of himself for life, and after, to the use of his son in tail, and made a letter of attorney to make livery. Before livery, he took the demandant to wife, and after livery was made to those uses, the husband died, and the question was, whether the wife was entitled to dower; and it was adjudged that she was not, for that the livery did not gain to the husband any new estate, but being, eodem instanti, drawn out of him, he gained no seisin whereof his wife was dowable ; for that having no estate before the feoffment, whereof the wife was dowable, he gained none by the feoffment of which his wife could be endowed. Three cases were there put, in which the wife would not be entitled to dower, as where a tenant for life, or a joint tenant, makes a feoffment; so where a married man took a fine, and by the same fine rendered the land to another in tail, his wife shall not be endowed thereof; because, although he took it in fee, yet it is instantly out of him; so if a feoffment be made to one and his heirs, to the use of another and his-heirs, the wife of the trustee shall not be endowed, for he was the mere instrument, and had but an instantaneous seisin. (2 Co. 77.)

The case of Nash v. Preston, (Cro. Car. 190.) would seem, at first view, to be opposed to the proposition, that a deed to the purchaser, and a mortgage given back by him to the grantor, at the same time, would not entitle the wife of the .purchaser to her dower; yet it is observable, that the principle is admitted,that an instantaneous seisin of the huáband does not entitle the wife to dower. Croke admits, that if a husband take a line sur cognisance de droit come cep, and rendcr arrear, although it was once the husband’s, yet his wife shall not have dower, .for it is in him and out of him, quasi unojlatu, and by one and the same act. That case does not state that the redemise was made at the same time with the bargain and sale, and I presume it was not. That case, therefore, does not bear on the general principle.

I am authorized to say, by the decision of this court in Jackson v. Dunsbagh, (1 Johns. Cas. 95.) that 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. I entirely agree in the opinion expressed by Ch. J. Parsons, in the case of Holbrook v. Finney, (4 Mass. Rep. 569.) that 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 that he executes the deed, that there the deed and the mortgage are to be considered as parts 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.

The substance of a conveyance, where land is mortgaged at the same time the deed is given, is this. The bargainor sells the land to the bargainee on condition that he pays the price at the stipulated time, and if he does not that the bargainor shall be rcseised of.it, free of the mortgage ; and whether this contract is contained in one and the same instrument, as it well may be, or in distinct instruments executed at the same instant, can make no possible difference. It is true that courts of equity have interposed to relieve the mortgagor against the accident of his nonpayment of the price, at the stipulated period. It is, also, true, that courts of law have considered the interest of the mortgagor as liable to be sold on execution. This, however, does not interfere with the question, as to how the contract between the original parties is to be viewed, as between themselves, when the equity of redemption is gone and forfeited.

The opinion which the court has formed, receives decisive support, from file declaratory act of the 28th sess. ch. 99. It recites that whereas doubts have arisen whether mortgages given to secure the purchase money of land sold and conveyed, at the time of the execution of such mortgages, are to be preferred to judgments previously obtained against the mortgagors, for the removal whereof, it is enacted and declared, that whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time, to secure the payment of the purchase money, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser..

This statute conveys the sense of the legislature, that the seisin of the mortgagor, under the circumstances stated in the act, was a seisin for an instant only; for it cannot be doubted, that a judgment will attach on lands, of which the judgment debtor becomes seised at any time posterior to the judgment; and nothing could prevent a judgment creating a lien on the subsequently acquired lands of the judgment debtor, but the circumstance that his seisin, in the given case, was instantaneous. Surely,' then, the analogous case of dower cannot stand on a better footing than a judgment unsatisfied. As a declaratory act, this statute is entitled to high respect; and it fortifies and supports the position, that the demandant’s husband acquired, by the deed to him, a seisin, which he parted with eo instanti he acquired it, .and that his wife is not endowable of the premises. The court are very well satisfied, that the law is so, for it would be extremely inequitable, in most cases, to claim dower on - such purchases. • We are, therefore, of opinion, that there must be judgment for the defendant.