101 Mass. 428 | Mass. | 1869
The wife’s inchoate right of dower in the-equity of
redemption in lands of which her husband becomes seised, subject to a mortgage valid against him, or in which she has released her right to dower, is recognized as a valuable interest in her. It is regarded as something more than a mere possibility, although it becomes consummate only when she survives her husband. Her husband cannot deprive her of it, but it is liable to be defeated by a foreclosure of the mortgage in his lifetime, or by her own voluntary act. Gen. Sts. c. 90, § 2; c. 107, § 38; and c. 140, § 44.
It has been held that this right is entitled to protection, in favor of the wife, against extinguishment by foreclosure, especially when the husband has parted with his whole estate in the land and can no longer be regarded as representing the interests of his wife. And a bill to redeem, brought by her, was maintained in Davis v. Wetherell, 13 Allen, 60. She has been allowed to maintain a suit in equity to set aside a deed purporting to release this right, which had been executed in blank and afterwards filled up. Burns v. Lynde, 6 Allen, 305.
In the case at bar, the husband became seised, during coverture, of an equity to redeem land from a mortgage given by one Nichols to the defendant bank, containing a power of sale, which, when executed, was therein declared to be a perpetual bar, both in law and equity, against the grantor, his heirs and assigns, and all persons claiming under him or them, from all rights and interest in the premises, and which authorized the bank to retain out of the money arising from the sale all sums thereby secured, paying the surplus, if any, to the grantor or his assigns. This mortgage was regularly foreclosed by a sale under the power during the lifetime of the husband. And the wife now asks that she may be allowed to share in the surplus proceeds, and that the same be apportioned by a decree of this court between her husband’s assignees in bankruptcy and herself.
We are of opinion that there is no case shown for the interference of a court of equity, exercising only ordinary, powers
It is urged against this, that, the mortgage debt having been paid, the mortgagee now holds a fund, consisting of the surplus in his hands, which is substituted for the equity of redemption in which the wife has equitable rights. But neither the doctrine which requires the assignees of the husband in bankruptcy to make a settlement upon her out of her choses in action assigned to them, nor the principle of equitable conversion by which effect is given to the contracts of parties, and money is treated as land or land as money, in furtherance of their intentions, seems to us to support this claim.
The death of the husband since the filing of the original bill, which by supplemental bill has been brought to our knowledge since the first argument, cannot affect the result to which we come. The rights of all parties were fixed, at the time of filing the original bill. Bill dismissed, with costs.