6 Johns. 290 | N.Y. Sup. Ct. | 1810
delivered the opinion of the court. The first question arising upon this case is, whether the husband was so seised of the premises, during the coverture, as to entitle his wife to dower.
The objection of the want of seisin in the husband, cannot be received from the defendants, as they hold under the husband, by virtue of conveyances from his son and heir at law. The husband died in possession, without any previous entry or foreclosure by the mortgagee, and-it ought not to be permitted to the-heir, or person claiming under him, and enjoying the estate,to deny the seisin of the ancestor. In Taylor’s case, 34 Eliz. (cited in Sir W. Jones, 317.) it was held, that if a tenant at will or for years made a feoffment in fee and died, and his wife brought dower against the feoffee, he could not plead that the husband was not seised. But if the defendants are allowed to make this objection, I think it
If the present tenant was the mortgagee, or a person deriving title under the mortgage, the case would ■present a very distinct subject' for consideration ; and the question would then arise, whether the husband acquired a seisin by his deed of the 3d of Matj, 1774, Competent to entitle his wife to dower, notwithstanding a mortgage to secure the purchase-money was presently, upon delivery of the deed, re-executed by him. But as that question does not necessarily present itself, the court forbear to discuss and decide it, I*
2. The remaining question is, whether any, and what damages the demandant is entitled to recover. The statute of Merton, which v/e have adopted, (Laws, vol. 1. sess. 10. c. 4. s. 2. p. 51.) gives the widow damages from the death of her husband, provided the husband died seised. The husband, in this case, died in possession, after the mortgage debt had become due, but without foreclosure, or entry by the mortgagee. According to the settled doctrine in our courts, and to which I have already alluded, (1 Caines’s Cas. in Error, 47. and 4 Johns. Rep. 41.) he is to be considered as dying seised of the inheritance, in respect to the dower of his wife, and within the purview of the statute. It is only as against the mortgagee, that the mortgagor is regarded as quasi a tenant at will. He is considered as the owner of the inheritance, in respect to the rest of the world, and to every beneficial purpose that concerns himself; nor does the sale of the estate to the present defendants make any alteration in the rule of damages. It was held in Brown and Wife v. Smith, (cited in Buller’s N. P. 117.) that if the heir sell to I. S. and the widow recover against him, he must pay the whole mesne profits, from the death of the husband, though he has not himself been half the time in possession. The widow is entitled to these damages under the statute, and she can recover only against
The statute of limitations, which was mentioned in the argument, as another ground of defence, cannot apply here, if it be applicable at all to this action. It was not pleaded. The pleas which were put in, were all-to precise, specific facts; and under neither of them could or ought such a matter to be given in evidence.
Upon the whole, the-demandant is entitled to judgment for her dower, in the whole lot in question, together with her damages, from the death of her husband. ,
Judgment for the demandant.,