19 App. D.C. 141 | D.C. Cir. | 1901
delivered the opinion of the Court:
As we have already stated, Mrs. Loughran survived her husband; and the first question is, What was the nature of the estate and extent of interest that she took in the property conveyed by the deed of Thomas I. Parker to Joseph P. Loughran and wife, of September 22, 1882 ? The limitation in the granting clause of- the deed is declared to be simply “ unto the said parties of the second part, their heirs and assigns forever;” while the limitation in the habendum clause’is, “ unto the said parties of the second part, their heirs and assigns, or the survivor of them, his heirs and assigns, to and for their sole use and benefit and behoof forever.” There is, however,, no repugnancy or material difference in the effect of these limitations. Por it is very clear, the effect of the language employed in either limitation was to invest the grantees, husband and wife, each with the entirety of the estate. They did not take as joint tenants, for though there was a right of survivorship, neither husband or wife could' convey so as to defeat the right in the other. Each took an entirety in the estate conveyed, with the right of survivorship, and of this right neither could be divested without the joint act of both. In such case, therefore, the survivor does not take as a new acquisition, but under the original limitation, his or her estate being simply freed from participation by the death of the other tenant; so that if, for instance, the wife survives and then dies, her heirs would take to the exclusion of the heirs of the husband. Watkins on Convey. 170; 1 Prest. on Est. 132; 1 Washb. R. Pro. 314, 315 (3d ed.); 4 Kent Com. 362, 363; Thornton v. Thornton, 3 Rand. 179;
The next question is, What was the effect and operation of the provisions of the deed of trust or mortgage made by Loughran and wife, on the 31st day of October, 1882, to Sparks and Hanson, trustees, on the estate by entireties created by the previous' deed from Parker to Loughran and wife? WLether the entire estate vested in the wife under that prior deed was divested, and all right of redemption of the estate became thereby vested exclusively in the husband, and his heirs or assigns, to the- exclusion of the right of the surviving wife? In other words, Was the mortgage or deed of trust of the 31st of October, 1882, intended, by any sufficient superadded provision to the security for the note, to make a separate and independent settlement upon the husband of the equity of redemption of the estate mortgaged, to the exclusion of all right of the wife therein? We think this question must be answered in the negative. The primary, indeed the only apparent, object of the deed of trust was the security of the payment of the promissory note. There is no recital of an intention of any other object in making the deed of trust. The reservation to the husband of the right to occupy the property and to receive the rents and profits therefrom until default made in the payment of the note, is certainly not sufficient to change the whole nature of the estate, and to exclude the right of the wife therein, especially when we consider the relation of the husband to the property and his interest therein witlji that of the wife. The equity of redemption reserved, it is true, is to the husband and his heirs, but that is not by any means controlling, in the absence of some plain manifestation of
The authorities are abundant to show, and to clearly establish the principle, that in the case of a mortgage of a wife’s estate, the rule is that where the husband is seized of the legal estate jure uxoris, and the husband and wife join in mortgage or deed of trust of the estate, wherein the equity of redemption is reserved to the husband and his heirs, the husband has the equity of redemption as he before had the legal estate, that is, jure uxoris. And so where the estate he before had jure uxoris was equitable, the equity of redemption remains equitable, but still jure uxoris; and equity throws this protection around the wife that the deed of mortgage, or whatever other form of security may be adopted, shall operate no further than the particular purpose for which it was made, unless there be some recital of intention that the husband shall take the benefit, or it is evident that the transaction was more than a mere mortgage transaction, or where the form of the equity of redemption has nothing to do with the limitation of the estate; as where the limitation of the estate is entirely distinct from the equity of redemption.- These principles have been settled by the highest authority. Ruscombe v. Hare, 6 Dow. 20, an opinion by lord Eldon; Jackson v. Innes, 1 Bligh, 128—9, an opinion by Lord Bedesdale, concurred in by Lord Eldon; 2 Spen. Eq. Juris. 644.
Although an express recital, declaring the intention, may place beyond question the intention of the parties to transfer the equity of redemption to the husband exclusively, yet a recital to that effect is not essentially necessary, for the frame of the deed may so clearly show an intention to act upon the equity of redemption, that a court of equity would be bound to give ¡affect to it. Lord Eldon, however, was at one time of opinion, following as he considered the rule as laid down by Lord Chancellor Thurlow, that nothing short of a recital of the intention would enable a court of equity to support a new destination of the equity of redemption. He yielded that opinion, however, and concurred in the opinion of Lord Bedesdale in
In this case, the mortgage debt is recited as being- that of the husband, and in the absence of evidence to the contrary, the loan will be presumed to have been obtained for his benefit. His estate would therefore be required to pay the mortgage debt at the instance of the heirs of the surviving wife, as well as at the instance of the wife herself after the death of the husband. She clearly had a right to redeem after default by the husband.
The principle applicable to this case was clearly stated by the vice-chancellor in the case of Anson v. Lee, 4 Sim. 364. In that case, in reviewing' the authorities upon the subject, the vice-chancellor said: “ Cases like Innes v. Jackson, and the other cases alluded to, in Dow’s report, are not, I think, similar to the present. Because, in cases of that description, the question always has been, how far the mere limitation of the equity of redemption,- which is something ultra, the only purpose that is apparent on the face of the deed, namely, the creation of an incumbránce on the wife’s estate, shall deprive her of her beneficiál inheritance beyond the letting in of the charge. It certainly is the clear law that, if there is, on the face of the deed, an intention that the wife shall join, either for the purpose of conveying the estate or destroying her dower, or some particular charge that she might have, for the benefit of the incumbrancer who took from the husband, then the mere limitation of the equity of redemption to the husband, shall have the effect of defeating the wife’s interest for the benefit only of the husband’s incumbrance, and shall not give a new benefit to the husband
On the face of the deed1 of trust in this case there is nothing whatever to show a motive or consideration for divesting the wife of all beneficial interest in the equity of redemption, and conferring the right thereto exclusively in the husband. It is hardly conceivable, moreover, that the brother of Mrs.
Order affirmed and cause remanded.
See See. 1031, Code, D. C., in effect January 1, 1902, as amended by act of June 30, 1902.— Reporter.
