216 Mass. 174 | Mass. | 1913
This is a suit to enjoin the foreclosure of a mortgage given in 1898 by the defendant Ezekiel Fitcher, in which his wife, the plaintiff, joined releasing her rights,
It is plain that a wife may maintain a bill to redeem from a mortgage real estate in which she has an inchoate right of dower. She has a right to pay the debt and free the estate from the mortgage lien. Davis v. Wetherell, 13 Allen, 60. Lamb v. Montague, 112 Mass. 352. The reason upon which these decisions rest still obtains notwithstanding the provisions of St. 1900, c. 450, § 5, now R. L. c. 132, § 1, to the effect that the dower of a widow shall be deemed to be waived unless she files an election to claim it in the registry of probate within a limited time. See Downey v. King, 201 Mass. 59. An inchoate right of dower is a kind of property with incidents sui generis. It is (as was said by Chief Justice Parker in Bullard v. Briggs, 7 Pick. 533 at 538) “a valuable interest, which is frequently the subject of contract and bargain. ... It is more than a possibility, and may well be denominated a contingent interest.” It has also been referred to as "a vested right of value, dependent on the contingency of survivor-ship,” Mason v. Mason, 140 Mass. 63, though the strict accuracy of calling it "vested” has been doubted in Flynn v. Flynn, 171 Mass. 312. But whatever its precise technical description may be, it is an incumbrance upon land, Shearer v. Ranger, 22 Pick. 447, its release is a good consideration for a promise, Holmes v.
Although no action at law can be maintained between husband and wife, their conflicting rights touching property may be adjusted in equity. Lombard v. Morse, 155 Mass. 136,140. Frankel v. Frankel, 173 Mass. 214. Patterson v. Patterson, 197 Mass. 112, 117. Woodard v. Woodard, ante, 1. Therefore in equity the plaintiff may secure enforcement of her rights by subrogation if she pays the indebtedness of her husband to the defendant Mills as the holder of the note and mortgage. Mills cannot be compelled to assign his mortgage. Kerse v. Miller, 169 Mass. 44, 48. He is only obliged to accept payment in full and surrender his security. The plaintiff being entitled to redeem, if she pays, she is entitled to the securities held by the defendant Mills. He holds the note which is the primary obligation of the defendant Fitcher and the mortgage. In equity both of these may be kept alive and enforced for the benefit of the plaintiff. Even at law they would be kept alive in her hands and after his decease she could enforce them against his estate, and during his life she may transfer a good title to third persons who may enforce them against him directly. Crosby v. Clem, 209 Mass. 193. Equity gives the right of present enforcement if this is necessary in order to protect the rights of
A decree may be entered directing the defendant Fitcher to pay to the defendant Mills the amount due upon the note, with interest and costs of foreclosure, and the defendant Mills to deliver to him the note and mortgage upon such payment, and that thereupon the mortgage be declared discharged.
Decree reversed, new decree to be entered in accordance with this opinion.
A final decree was made by Sanderson, J., ordering that the plaintiff be permitted within thirty days to pay the defendant Mills the $1,300 due on the mortgage with interest at the rate of five per cent per annum from May 9, 1912, and that the defendants pay to the plaintiff the costs of the suit. The plaintiff appealed.