Carll v. Butman

| Me. | Jun 15, 1830

Weston J.

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 the owner of the equity of redemption in the land demanded^ itis insisted that the release to him by the mortgagee operated not as an assignment, but as an extinguishment, of the mortgage. And the cases of Bolton v. Ballard and of Snow v. Stearns are cited in support of this position. But the former of these cases was decided upon the ground that the mortgage was paid with the husband’s money, a part of the consideration of the purchase' from him being by express agreement reserved and applied to this purpose. And in the latter case, the sum due on the mortgage was paid, not by the tenant, but by the administrator of the grantor of the husband. Here the sum paid to the mortgagee, was the tenant’s own money. It was not paid with a view to- extinguish the mortgage, or to pay the' debt due thereon,= but to' purchase the land, after the right to re-' deem was understood to be foreclosed. To regard this purchase as an extinguishment of the mortgage, would be to give a construction to the deed, which neither party could have intended.

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 she has a remedy by a bill in equity, if the right to redeem the land in question has not been foreclosed. An entry to foreclose, by our statute, must be by process of law, or by consent in writing of the mortgagor, or those claiming under him, or by the mortgagee’s taking peaceable possession in the presence of two witnesses. It is not pretended that either of the two latter modes was adopted. There was a process and judgment of law, in favor of the mortgagee, to foreclose the mortgage, but it was not against the husband of the demandant, who was then the tenant in possession of the land in question, it having been severed from the other land mortgaged, by tire deed of the mortgagor. The husband’s rights were therefore unaffected by the process and judgment against the tenant in possession of the residue of the land. According to a former practice, he might have been joined as a tenant in that suit. 4 Dane's Abr. 192. But in conformity with later decisions, in order to fore-t ".wo his right to redeem, there should have been a separate process ic J judgment against him. Varnum c. Abbot & al. 12 Mass. 474; 1 Greenl. 50.

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.