3 Del. Ch. 407 | New York Court of Chancery | 1869
In this State, a widow is not dowable out of an equitable estate of a husband except in intestate lands. Our intestate law allows to the widow, dower, or, more properly speaking, her “ thirds,” out of any estate in lands, legal or equitable, which descend to the heir at law, the policy of this statute being to. place the widow on an equal footing with the heir. But for all other cases, the right of dower is defined by the Statute of 1816 — Rev. Code, Chap. 87, sec. 1 — which gives dower only when the husband shall die “ seized of an estate of inheritance in any lands or tenements within this State,” &c. The term seized, here used, has always been construed, in its common law sense, as applicable to legal estates only, and the Statute has been received as a declaration only of the common law rule
But it is equally well settled in this State that a widow is dowable out of an equity of redemption, except as against the mortgagee and his assigns, and that, whether the mortgage have been ^iven prior to the marriage, or after the marriage, the wife joining in it. In the American Courts, mortgages, until foreclosure, though in form con-conveyances, are treated as securities for the payment of money, the mortgagee taking but a chattel interest, and the mortgagor remaining seized, legally, as well as equitably, with respect to all the world except the
The English Courts,however, did not admit the equitable doctrine so far as to allow dower out of an equity of redemption. The inconsistency and injustice of denying dower out of the estate of a mortgagor and out of equitable estates generally, the same estates being held subject to curtesy and to other incidents of a legal estate, has beenfelt and acknowledged by English judges. But the decision in Dixon vs. Saville, 1 Bro. C. C. 326, in 1785, denying dower in an equity of redemption had become the accepted rule, and was so generally acted upon by purchasers that it was felt to be necessary for the security of titles to adhere to it, until the English Statute of 1833, which gave dower in equitable estates. — Lord Redesdale in D’Arcy vs. Blake, 2 S. and L., 388. The American Courts being free to carry the equitable view of mortgaged estates to its logical results, have, uniformly, allowed dower in equities of redemption, 4 Kent Com., 45. The leading cases are, Snow vs. Stevens, 15 Mass., 277 ; Hitchcock vs. Harrington, 6 Johns., 290; Collins vs. Torrey, 7 Johns., 277; Coles vs. Coles, 15 Johns., 319. It is not true, as was suggested in the argument, that this class of decisions is founded upon statutes of the several States. There are found, it is true, in the Revised Statutes of New York and of Massachusetts, clauses declaring the widow entitled to dower in
Dower has been uniformly allowed in our Orphans’ Courts out of the lands of mortgagors ; and under sales of lands by executors and administrators for the payment of debts of decedents where there has been outstanding mortgages, the practice, without exception, has been to secure to the widow, interest on one-third of the surplus proceeds of sale, after discharging the mortgage debts. Such being our law allowing dower out of the equity of redemption before foreclosure, it results that a court of equity will, after foreclosure and sale, secure to the widow a corresponding interest in the surplus proceeds of sale. That is but an application of a general principle of equity, that rights attaching to land shall be preserved as against the fund resulting from any judicial conversion of the land into money ; — so that dower being allowed at law out of the equity of redemption in the land, courts of equity, following the law, allow an equivalent for the dower out of the product'of the equity of redemption, which product is represented by the surplus proceeds after satisfying the mortgage. Titus vs. Neilson, 5 Johns., Ch. R., 453, is to this point. That was a bill for foreclosure filed in the husband’s lifetime, to which the husband and wife were made defendants, together with a second mortgagee under a mortgage of the husband’s equity. The wife had not joined in the second mortgage. After a decree for a foreclosure and sale of the premises, but before sale made, the husband died, whereupon the
But conceding to the widow equitable dower in the surplus, another question raised by the bill respects the extent of her right. The proceeds of sale were $10,500. The amount due on the mortgage $8,785.09, leaving a surplus of $1,714.99, less than one-third of the whole. The widow claims that this whole surplus be invested for her benefit, on the ground that, except as against the mortgagee, she is entitled, before sale, to dower in the whole estate, and, consequently, that after a sale, her dower attaches to one-third of the whole proceeds, except so far as the mortgage debt may exceed the two-thirds ; that as against the representatives and creditors of the mortgagor, who are the present defendants, her rights are as if the mortgage had never existed ; that a stranger to the mortgage cannot set it up.
This argument wholly overlooks the effect of a foreclosure and sale. The rule' that a stranger to an outstanding mortgage cannot set it up against the widow, applies only to a mortgage not as yet foreclosed. Before foreclosure, the widow’s relinquishment of dower, by her joining in the mortgage,remains contingent upon its being foreclosed. As yet, the mortgage money may be paid by the husband, or out of his personal estate after his decease ; or, the widow has, herself, the right, in equity, to redeem the mortgage ; and thus the equity of redemption to which her dower attaches, may become again the absolute estate. But by foreclosure and sale, the equity
In this case, the surplus is $1,714.91. A decree will be made that one-third of it, to wit: the sum of $571.64 be so invested that the income thereof may be paid semiannually to the widow, and the principal remain subject
In Hawley vs. Bradford, 9 Paige, Ch. R., 200. The widow of a mortgagor under circumstances similar to those of the present case, claimed interest on one-third of the whole proceeds of the mortgaged premises on the ground that she was equitably entitled, as a surety, to a preference over other incumbrances than the mortgagee. But the Court ■ held that the principle of suretyship did not apply.