Boorum v. Tucker.

Owing to a dispute as to the terms of the mortgage, it was not executed or delivered until several months after the delivery of the conveyance. It was, nevertheless, held to be paramount to the right of dower of the wife of the vendee.

I am of the opinion, therefore, on this ground alone, that the wife of Mr. Giles has no inchoate right of dower in the premises. I think, also, that if I had come to a contrary conclusion as to the effect of the mortgage, her inchoate right of dower was barred by her joining with her husband in a conveyance to the defendant, Tucker.

The authorities are not in accord on this subject. There is a line of cases in Massachusetts and in the Western States which hold that the joining by a wife with her husband in the conveyance of the premises to a party under whom the present holder of the title does not claim, shall not bar her dower. They are principally cases where the conveyance in which the wife joined had been set aside and held void as against creditors. Under such circumstances, in many jurisdictions, it has been held that those creditors could not set up the bar of that conveyance against the widow's dower. There is reason and logic at the base of this ruling, for the creditor should not be permitted to both approbate and reprobate, and hold the conveyance valid to bar the wife's dower and void as against his judgment.

the

Such of this line of cases as are not of this class go upon ground that the extinguishment of the wife's inchoate right is due to the effect of estoppel arising out of her executing the deed, and that the person claiming the benefit of it must be in privity with the grantee of the deed in which she has joined.

But, whatever may be said in support of the rule adopted in other jurisdictions, such is not the law in this state. The contrary was distinctly held in the case of Den v. Johnson, 3 Harr. 87. It is true that the question there arose, not in an action. directly brought by the widow for her dower, but upon a question of her competency as a witness. The action was ejectment by a person claiming title under a judgment against the grantor, brought against the fraudulent grantee; the wife of the debtor, Winings, was called as a witness, and it was held that she was

Boorum v. Tucker.

competent, by Chief-Justice Hornblower and Justices Dayton, Nevius and White.

Justice Dayton (at p. 90) uses this language:

"It was said on the argument that she was swearing in behalf of her own dower. But how? the verdict could not affect that question directly or indirectly. The object of her evidence was to show that the deed to Johnson was without consideration and therefore void as against creditors-not as against the grantors; as to them it was perfectly valid in any event, and her dower was unquestionably gone," citing authorities.

And Chief-Justice Hornblower (at p. 97) says:

"If she proved the deed fraudulent as to creditors, she did not thereby restore her husband's title to the land nor her own right of dower. As against her husband and herself, the deed would remain; both at law and in equity, a perpetual bar."

The decision in the case of Den, Smallwood, pros., v. Bilderback, 1 Harr. 497, tends in the same direction.

To the same effect is what was said by Chancellor Zabriskie, in Frey v. Boylan, 8 C. E. Gr. 90. That was a bill for the specific performance of a parol contract by the defendant, Boylan, to convey certain lands to the complainant. Boylan's answer was that there was no contract, but if there ever was one, it had been fully performed by the complainant's accepting the title to the premises made to him directly by a sheriff upon sale upon execution issued upon a judgment against Boylan's grantor, one Walsh. To that the complainant replied that Walsh's wife had an inchoate right of dower, which was not cut off by the judgment, and the real object of the suit was to obtain a deed from Boylan and his wife, which would vest in the complainant all the title that Walsh and his wife conveyed to Boylan, and thus cut off the possible inchoate right of dower of Mrs. Walsh. Chancellor Zabriskie held, indeed, that there was no contract on Boylan's part beyond what he had already performed, but he said, further (at p. 91): "Mrs. Walsh, by joining in the deed to Boylan, extinguished and barred her right to dower. She can never claim it, nor can any one in her name, or as her assignee; the first section of the Dower act and the fourth section of the

Boorum v. Tucker.

act respecting conveyances must be regarded as settling this question. No one can claim, as assignee, a right that is barred or extinguished."

The section of the Dower act referred to is the familiar one which, in defining the rights of widows, declares that the widow, alien or not, of any person dying intestate or otherwise, shall be endowed for the period of her natural life of the one full and equal third part of all the lands, tenements and other real estate whereof her husband, or any other to his use, was seized of an estate of inheritance at any time during the coverture, to which she shall not have extinguished or released her right of dower by deed executed and acknowledged in the manner prescribed by law for that purpose.

Now, that seems to amount to a statutory canon which limits the widow's right of dower to lands in which she has not executed such a conveyance as is there described. The wife of Morton Giles, in this case, has executed such a deed of conveyance, and whatever may have been decided in other jurisdictions upon other statutory declarations of the widow's right of dower, I am unable to perceive how, in this state, she can be permitted to claim her dower under circumstances like those before the court.

It is said that the purchasers here will get only the title which was made by the mortgage; but I do not understand such to be the force and effect of a title under foreclosure proceedings. On the contrary, my understanding is, that whatever title any of the defendants holding subject to the mortgage had, passes to the purchaser, and it was so declared by Chancellor Runyon, in Chilver v. Weston, 12 C. E. Gr. 435 (at p. 439), where he says: "By his purchase at the sheriff's sale he acquired not only the title which he held as mortgagee, but the title which E. B. W. had as mortgagee, both of these mortgages being prior to that of the complainant in this suit. He acquired, also, the title of Jones as mortgagee, and that of Howe as owner of the property." And again, in Atwater v. West, 1 Stew. Eq. 361 (at p. 363); and by Vice-Chancellor Van Fleet, in Mount v. Manhattan Co., 16 Stew. Eq. 25 (at p. 31). He there says: "I re

Boorum v. Tucker.

gard it as certain that the title that they [purchasers at a foreclosure sale] thus acquired to the mortgaged premises invests them, so long as it stands, with all the rights and equities which inhered in the parties, whether complainant or defendant, at the time of the institution of the suit," and the head-note is to the same effect, and the decree in that case was affirmed upon that opinion by the court of errors and appeals in 17 Stew. Eq. 297. And such I believe to be the clear weight of authority in other jurisdictions as well as our own.

In Hoagland v. Watt, 2 Sandf. Ch. 148 (V. C. Sandford), the case was that the wife had not joined with her husband, Watt, in the mortgage sought to be foreclosed, but had subsequently joined with him in a deed of conveyance to one Dana, who had in turn reconveyed to Watt, the mortgagor. It was held that Mrs. Watt had no interest beyond an inchoate right of dower in the equity of redemption.

The doctrine of this case was approved and followed by the commission of appeals, in Elmendorf v. Lockwood, 57 N. Y. 322. To the same effect is Manhattan Co. v. Evertson, 6 Paige 457.

The question was thoroughly considered in Carter v. Walker, 2 Ohio St. 339 (1853). There, the husband had given a mortgage, his wife not joining, and had afterwards conveyed to a third party by a deed in which his wife joined. The mortgage had been foreclosed against the grantee of this conveyance, the mortgagor and his wife not being made parties, and title made to the present defendant under those proceedings. The mortgagee died, and his widow (the present plaintiff) sued for dower, and it was held she could not recover. The judge who pronounced judgment said (p. 343): "These proceedings were commenced for the purpose of foreclosing the equity of redemption, and appropriating the land to the payment of the mortgage debt. Gassaway [the grantee of the mortgagor and wife] held a complete title to the land, freed from every encumbrance or contingency except only the encumbrance of the mortgage; but all his right and title he held subject to the mortgage. Walker [plaintiff in foreclosure] had a right to have Gassaway's entire interest in the property sold, and the proceeds applied to the

Boorum v. Tucker.

payment of the mortgage debt. Gassaway, as the court decreed, was entitled to the surplus after the payment of the mortgage; he, then, was interested in having the property sell for the highest price. This could only be obtained by having sold, and vesting in the purchaser, his whole right and title, without encumbrance or reservation. If the property had been sold with the encumbrance of dower resting on it, it would have brought much less than if sold free from that encumbrance. Gassaway would have suffered the entire loss of such diminution, although, when he purchased the property, he had paid for and received a release of dower. The court could not have sold, nor did they attempt to sell, less than Gassaway's entire right and title in the property, with all its incidents. What interest, then, was sold and passed to the purchaser? The entire interest of both Walker and Gassaway -of mortgagor and mortgagee-a complete title, freed from any claim of dower."

The case is precisely in point, and the reasoning satisfactory and apparently conclusive.

The only case looking in the contrary direction to which my attention has been called, is Littlefield v. Crocker, 30 Me. 192. There, a husband executed a mortgage in which his wife did not join, and afterwards conveyed, subject to the mortgage, to a third party by deed, in which his wife joined in such manner as to bar dower. Afterwards, the mortgagee instituted proceedings which, as I interpret the report, resulted in a strict foreclosure and not a sale. It does not appear that the grantee or the mortgagor was made a party. The mortgagee then assigned the mortgage to the defendant, and, the mortgagor having died, his widow brought an action for dower and recovered upon the express ground that the defendant's title rested only upon the mortgage deed, and could derive no benefit from the conveyance because not a privy to it.

It is to be observed that the opinion was oral and brief, and to me the reasoning is not satisfactory.

The question was raised and discussed, and, in effect, decided by Chancellor Williamson, in Hinchman v. Stiles, 1 Stock. 361. There, a man, before his marriage, executed a mortgage upon