Snyder v. Snyder, 6 Mich. 470

Snyder v. Snyder

6 Mich. 470 | Mich. | 1859

Campbell J.:

This case comes up on reservation from Calhoun Circuit.

The plaintiff, who is widow of Samuel Snyder, brought ejectment for her dower in certain premises occupied by the defendant. The property was sold during the life-time of Samuel Snyder, upon an execution against him. Prior to the execution proceedings, Samuel Snyder had executed a mortgage upon the premises, in which the plaintiff joined by way of releasing her dowel. The execution title having become absolute, was purchased by the holder of the mortgage, who subsequently conveyed the .whole property by warranty deed to the defendant in this action.

The plaintiff claims that she is entitled to dower in the premises, without any deduction on account of the mortgage, on the ground that it has been extinguished by the union of titles.

The authorities are quite uniform that the holder of a mortgage interest shall lose no substantial rights by becoming owner of the equity of redemption. It would be a rule in conflict with every principle of justice, to hold that by the union of two separate' interests, each of which repre*473sented a full and valuable consideration, either should be destroyed, unless some duty lay on the holder inconsistent with the assertion of any such rights. In this case the wife was fairly entitled to dower in the fee of the land, because she never released her dower in it; but she certainly could have no claim to dower as against the mortgage, unless that had been paid or discharged by some one whose act would in law inure to her benefit.

Our statute (2 Gomp. L. p. 851) provides that when the heir, or any other person claiming under the husband, shall pay and satisfy a mortgage in which the wife has joined with her husband, the amount of the mortgage shall be deducted from the whole value of the land, and the widow’s dower shall be set off in the residue. In setting-off dower under such a state of facts, the commissioners, having ascertained the whole value of the property, deduct from that value the amount of the incumbrance, and set off such a portion of land to the widow’s use as they consider worth one-third of the residue. The amount of the incumbrance being ascertained, there is no practical difficulty in performing their duty. n

Mr. Alvah Snyder, holding the execution title and the mortgage, and having- conveyed the land as an entirety, it is fair to presume that he intended to regard the mortgage as extinguished, as an independent security. But this extinguishment being made by himself, and he being, in virtue of his execution title, an assignee of the husband, this can not enlarge the widow’s rights. She can only claim' dower in the residue. And inasmuch as the statute provides for making the deduction in setting off dower, that is the proper occasion for making it.

The only remaining- inquiry is whether this can be done in the action of ejectment. Our statute does not require dower to be set off before ejectment. It authorizes an action to be brought by any one entitled to dower, and, in case of recovery, provides that it shall be set off *474by commissioners, in the same manner as in probate proceedings.— 2 Comp. X. p. 1240, §4612.

As tbe widow’s dower is to be reduced by any sucb incumbrances as have been referred to, it would seem thaj they should be proven in order that a proper foundation may be laid for instructions to the commissioners. In this case the amount of the mortgage is agreed upon, and there is therefore no difficulty in giving the proper instructions.

We are of opinion that the facts before us are such that the whole rights of the parties may be disposed of in tbe action of ejectment, and that the conveyance to Alvah Snyder was, under the circumstances, such a merger as authorized him to stand in the position of an assignee of Samuel Snyder satisfying it.*

The other Justices concurred.

See Brown v. Lapham, 3 Cush, 557.