105 Mass. 119 | Mass. | 1870
The demandant released her right of dower in the mortgage to Day. Her husband never redeemed the land from that mortgage ; and he was at no time thereafter seised of any interest in the land, except the equity of redemption. Her right of dower is therefore subject to that mortgage, unless it has been satisfied in his behalf or out of assets belonging to him. Newton v. Cook, 4 Gray, 46.
It is manifest that the assignee did not pay the mortgage debt in behalf of Sargeant, inasmuch as he took a formal assignment of the mortgage interest to himself, and, in his subsequent conveyances of the land, expressly declared that he conveyed not only his title as assignee, but also his interest under the assignment of the mortgage.
It does not appear that Sargeant had any. interest in the assets of his estate which were applied to the payment of the mortgage debt. In the absence of any statement or evidence that the estate ultimately proved more than sufficient to pay all debts, so that the money applied to the payment of the mortgage would otherwise have resulted as a surplus to Sargeant, we must presume that the estate was in fact insufficient for that purpose.
It is objected that the assignee had no authority or right thus to purchase the mortgage. We think otherwise. But as the demandant has no right to require the mortgage to be satisfied out of the estate and discharged for her benefit, she cannot avail herself of an objection of this nature.
The mortgage then remained an outstanding title in the hands of Chapin, against which the widow of Sargeant could not have dower. Gen. Sts. c. 90, § 2. McCabe v. Swap, 14 Allen, 188. The tenant claims under the mortgagee; and she is equally precluded from demanding dower against him.
It is argued for the demandant that a mortgage title, before foreclosure, cannot be divided; and therefore that, as the whole mortgage was not assigned to the tenant, his deed of a part only of the land could not pass to him any interest in the mortgage title. But it is enough that the tenant holds “ under the mortgagee.” Except for the intervening right of dower, the mortgage would have become merged in the equity held by Chapin. For the purposes of conveyance it was so merged; and the tenant took, by his deeds, not one interest in the mortgage and a separate interest in the equity, but one entire estate in fee. The rights of such purchasers are protected by the statute against the claim of dower by the widow of the mortgagor, who joined in the
Judgment must be for the tenant.