44 Iowa 651 | Iowa | 1876
In Holbrook v. Finney, 4 Mass., 565, the same question arose as in the case at bar. The defendant conveyed the premises in question to his three sons, who mortgaged the same back to secure the purchase money. Their wives did not join. The mortgage was foreclosed. Afterwards one of the sons died. His widow brought suit to recover dower in the undivided third part of the premises, which had been owned by her husband. But her right of dower was denied. Parsons, Ch. J., said: “ The mortgage back to the father from the terms of it is of even date with the conveyance from him. They are therefore to be considered as parts of the same contract, and as taking effect at the same instant. The conveyance from the father took effect when he delivered his deed. The conveyance back took effect when the mortgage deed was delivered; but both, being of even date, were delivered at the same time.
The mortgagors were, therefore, seized but for an instant, taking an absolute estate in fee, and instantly rendering back a conditional estate in fee. These two instruments, therefore,
The same doctrine was held in Mills v. Van Voorhees, 20 N. Y., 412; Hinds v. Ballou, 44 N. H., 619; Eslara v. Lepetre, 21 Ala., 504; Thompson v. Lyman, 28 Wis., 266; Bell v. The Mayor of N. Y., 10 Paige, Ch., 49.
Courts, indeed, have gone so far as to hold that where a purchaser takes a deed of land and at the same time executes a mortgage to a third person, to secure money used in payment for the land, the mortgage and deed may be regarded as constituting one transaction, and the mortgage will be paramount to the dower right of the wife of the purchaser, although she does not sign the mortgage. Clark v. Monroe, 14 Mass., 351; Hazelton v. Lasure, 9 Allen, 24; King v. Stetson, 11 Allen, 407.
The appellant relies upon Tevis v. Steele, 4 T. B. Monroe, 339, but the mortgage in that case was not given to secure the purchase money.
We are of the opinion that, as no time, in contemplation of law, intervened between the execution of the deed from plaintiff and the mortgage to him, Mrs. Wienkoop’s inchoate right of dower attached subject to the mortgage.
Affirmed.