7 Me. 102 | Me. | 1830
delivered the opinion of the Court.
In Bird v. Gardiner, cited by the counsel for the tenant, Sewall J. states that it is well settled that a wife is not dowable of an equity of redemption ; but he there means, as is very manifest, as against the mortgagee or his assigns, whose title commenced before the sei-sin of the husband. That a widow may be endowed, notwithstanding an outstanding mortgage, under which the tenant does not claim, although such mortgage, so long as it remained unextinguished, would defeat her claim in favor of those holding under it, has been repeatedly recognized in Massachusetts; and in this State in Smith v. Eustis & al. (ante p. 41. The mortgage in evidence in the present case was made before the seisin of the husband, and his title was derived from the mortgagor. If therefore the tenant holds under the mortgagee, he has a good defence against the demandant’s claim of dower. Prior to this action, the mortgagee for a valuable consideration released to the tenant; but as the latter had previously taken a conveyance from the husband of his interest, and thus become
In Gibson v. Crehore, 3 Pick. 475, it is laid down by Parker C. J. that- “ where the purchaser of a right to redeem takes an assignment, this shall dr shall not operaté as' an extinguishment of the mortgage, according as the interest of the party taking this assign-' fnent may be, and according to the real intent of the parties.” And the learned Chief Justice supports his opinion, by adverting to several authorities. This principle is repeated by Wilde J. in a case between the same parties, 5 Pick. 146. And. nothing is more equitable. The widow is deprived of nothing, to which she is justly entitled. The purchaser of the equity takes an assignment of the mortgage for himself and not for her. He pays the consideration; and as she loses nothing by this transaction, she has no equitable claim to be benefitted by it.
In conformity then with the authorities, with the plain intentions of the parties, and with the justice of the case, the deed from the' mortgagee must be regarded as a conveyance of the land to the tenant, and an assigment of the mortgage from which his title originated, if a right to'redeem still subsisted, in respect to any part of the; land. The tenant thus holding under the' mortgagee, the demand-' ání’s action' cannot be sustained at law.
But if she would have ber dower, she must pay her just proportion of the sum due on the mortgage. Swaine v. Perine, 5 Johns. Chan. 482 ; Gibson v. Crehore, 5 Pick. 146. As the value of the whole tract mortgaged, is to the whole sum due on the mortgage, so would the value of the acre, of which the husband was seised, be to the amount which that acre should contribute. And of this last sum thus ascertained, the widow would be holden to pay the proportion, which the present value of an annuity for her life, equal to one third of the rents and psftiits, might bear to the value of the whole acre in which she has a claim to be endowed. The rights of the widow may be adjusted by the parties upoñ these principles ; or she may enforce them by a hill in equity. But the nonsuit, directed by the judge in this action, must stand; and the tenant be allowed his costs.