quently not dowable in her husband's equity of redemption;(1) and this anomalous distinction is still preserved in the English law, from the necessity of giving security to title by permanent rules. This policy outweighs the consideration that would naturally be due to consistency of principle. Sir Joseph Jekyll, in Banks v. Sutton,a held that the widow might be endowed of an equity of redemption, though the mortgage in fee was executed before the marriage, upon her paying the third of the mortgage money, or keeping down a third of the interest. But the reasoning of that learned judge did not prevail to establish his doctrine, and the *44 distinction which he suggested between the case of a trust created by the husband himself, and a trust estate which descended upon, or was limited to him, has been condemned by his successors as loose and unsound. The same rule prevails as to an equity of redemption in an estate mortgaged in fee by the husband before marriage, and not redeemed at his death.d

a 2 P. Wms. 700.

The rule in chancery had been vacillating previous to that decision, though the weight of authority and the language of the courts were decidedly against the right to dower. Colt v. Colt, Reports in Chancery, vol. i. 134; Radnor v. Rotherham, Prec. in Ch. 65; Bottomly v. Fairfax, ibid. 326. Ambrose v. Ambrose, 1 P. Wms. 321, were all opposed to Fletcher v. Robinson, cited in Prec. in Ch. 250, and 2 P. Wms. 710.

Chaplin v. Chaplin, 3 P. Wms. 229. Godwin v. Winsmore, 2 Atk. 525. Sir Thomas Clarke, in Burgess v. Wheate, 1 Blacks. Rep. 138. Dixon v. Saville, 1 Bro. 326. D'Arcy v. Blake, 2 Sch. & Lef. 387.

• In Maryland, and in the Maryland part of the District of Columbia, the rule of the common law prevails, and a widow is not dowable in her husband's equity of redemption. Stelle v. Carroll, 12 Peters, 201. But in England, by the statute of 3 and 4 Wm. IV. c. 105, dower now attaches upon equitable estates of inheritance in possession, other than estates in joint tenancy, and upon lands in which the husband, though he had no seisin, was entitled to a right of entry at his death. On the other hand, the wife is not entitled to dower in lands sold by the husband in his lifetime, or devised by will, or declared by will to be exempt from her dower; and all partial estates and interests created by the husband by any disposition or will, and all debts and incumbrances to which his lands are liable, are declared to be effectual against the claim of dower. A devise of any estate in the land to the widow, bars her dower, unless a contrary intention be declared; but not

(1) In New Jersey, when the mortgagee, after forfeiture, acquires the equity of redemption, he holds the estate under the mortgage, and is not subject to dower. Thompson v. Boyd, 1 Zabriskie's N. J. R. 67.

In the United States, the equity of the wife's claim has met with a more gracious reception; and in Massachusetts, Connecticut, New-York, New-Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Tennessee, Alabama, Mississippi, Indiana, and probably in most or all of the other states, the wife is held dowable of an equity of redemption existing at the death of her husband. Though the wife joins with her husband in the mortgage, and though the husband should afterwards release the equity, the wife will be entitled, at his death, to her dower in the lands, subject to the mortgage; and if they are sold under the mortgage, then to her claim as

for dower in the surplus proceeds, if any there should *45 be. If, *however, the mortgage was executed on a

purchase before the marriage, and the husband releases. the equity after the marriage, his wife's right of dower is en

a bequest of personal estate, unless an intention to that effect be declared. These provisions leave the wife's dower completely in the husband's power, and break in upon the common law right of dower as extensively as any of the alterations in the laws of the American states.

■ Bird v. Gardner, 10 Mass. Rep. 364. Snow v. Stephens, 15 ibid. 278. 3 Pick. Rep. 476. Walker v. Griswold, 6 ibid. 416. Fish v. Fish, 1 Conn. Rep. 559. Hitchcock v. Harrington, 6 Johns. Rep. 290. Collins v. Torry, 7 ibid. 278. Coles v. Coles, 15 ibid. 319. Titus v. Neilson, 5 Johns. Ch. Rep. 452. New-York Revised Statutes, vol. i. 740. sec. 4. Montgomery v. Bruere, 2 Southard, 865. Reed v. Morrison, 12 Serg. & Rawle, 18. Heth v. Cocks, 1 Randolph, 344. 1 Virginia Revised Code, 1819. Mass. Revised Statutes of 1835. Revised Statutes of North Carolina, c. 121, 1828. Taylor v. M'Crackin, 2 Blackf. Ind. Rep. 261. M'Mahan v. Kimball, 3 ibid. 1. Rutherford v. Munce, Walker's Miss. Rep. 371. By the New-York Revised Statutes, vol. ii. 112. sec. 71, 72; ibid. 374. sec. 63, 64, the wife has her dower in the inheritable interest of the husband in lands whereof he died seised of the equitable, but not of the legal title. The same in Illinois. Revised Laws of Illinois, edit. 1833, p. 627. The same in Kentucky. 6 Dana, 204. 1 B. Monroe, 91. And in Tennessee. Statute Laws of Tennessee, 1836, p. 265, and act of 1823, ch. 37.

b Tabele v. Tabele, 1 Johns. Ch. Rep. 45. Swaine v. Perine, 5 ibid 428. Titus v. Neilson, 5 ibid. 452. Peabody v. Patten, 2 Pick. Rep. 517. Gibson v. Crehore, 5 ibid. 146. Eaton v. Simonds, 14 ibid. 98. Keckley v. Keckley, 2 Hill's S. C. Ch. Rep. 252. 256. In New-York, if the lands of a testator or intestate be sold for the payment of debts, by order of the surrogate, and the widow will not accept of payment of a sum in gross, in lieu of her dower upon the lands sold, the surrogate is directed to set apart one third of the purchase money, to be invested by him in permanent securities, on annual interest, and the interest to be paid to her during life. The same payment or investment is to be made, with the widow's consent, in the case of the sale of infants' estates. New-York Revised Statutes, vol. ii. 106, sec. 36, 37. 45. Ibid. 196. sec. 181.

tirely gone; for it never attached, as the mortgage was executed immediately on receiving the purchaser's deed. In the cases of Harrison v. Eldridge and Barker v. Parker, the wife's interest in the equity of redemption, in a mortgage executed by her and her husband, was held not to be sold by a sale of her husband's equity, under an execution at law against him only; and the purchaser at the sheriff's sale took the land subject to the widow's dower. These cases present a strong instance of the security afforded to the wife's dower in the equitable estate of her husband. But if the mortgagee in such a case enters under a foreclosure, or after forfeiture of the estate, and by virtue of his rights as mortgagee, the wife's dower must yield to his superior title; for, as against the title under the mortgage, the widow has no right of dower, and the equity of redemption is entirely subordinate to that title. The wife's dower in an equity of redemption only applies in case of redemption of the incumbrance by the husband or his representatives, and not when the equity of redemption is released to the mortgagee, or conveyed.c

The reason of the American rule giving dower in equities of redemption is, that the mortgagor, so long as the mortgagee does not exert his right of entry or foreclosure, is regarded as being legally as well as equitably seised in respect to all the world but the mortgagee and his assigns. Even in the view of the English courts of equity, the owner of the *equity of redemption is the owner of the land, and the *46 mortgage is regarded as personal assets. The rule, in several of the states, is carried to the extent of giving to the wife her dower in all trust estates. That is said to be the law of New-Jersey, Pennsylvania, Maryland, Virginia, Kentucky, Mississippi, Ohio, Illinois and Alabama ;e but the rule

⚫ Jackson v. Dewitt, 6 Cowen, 316.

b2 Halsted, 392. 17 Mass. Rep. 564.

c

Popkin v. Bumsted, 8 Mass. Rep. 491. Bird v. Gardner, 10 ibid. 364. Hildreth v. Jones, 13 ibid. 525. Gibson v. Crehore, 3 Pick. 475. 480, 481. Jackson v. Dewitt, 6 Cowen, 316. Van Dyne v. Thayer, 19 Wendell, 162.

d Brown v. Gibbs, Prec. in Ch. 97. Carbone v. Scarfe, 1 Atk. 605.

• Shoemaker v. Walker, 2 Serg. & Rawle, 554. Reed v. Morrison, 12 ibid. 18. Statutes of Virginia, 1785 and 1792. Miller v. Beverly, 1 Hen. & Munf. 368. Claiborne v. Henderson, 3 ibid. 322. Griffith's Reg. American Jurist, No. 4. 398. Lawson v. Morton, 6 Dana's Ken. Rep. 471. Elmer's Dig. 147. note, where the

in those states must be understood to be limited to the case of trusts in which the husband took a beneficial interest. It could not be applied to trust estates in which the husband was seised in fee of the dry technical title, by way of trust or power, for the sole interest of others. a In all the other states, except those which have been mentioned, and except Louisiana, where the rights of married women are regulated by the civil law, and except, also, Georgia, where tenancy in dower is said to be abolished, the strict English rule on the subject of trust estates is presumed to prevail.b

Though the wife be dowable only of an equity of redemption, when the mortgage was given prior to her marriage, or when she joined with her husband in the mortgage, she is, after her husband's death, if she claims her dower, bound to contribute ratably towards the redemption of the mortgage. If the heir redeems, she contributes by paying, during life, to the heir, one third of the interest on the amount of the mortgage debt paid by him, or else a gross sum, amounting to the value of such an annuity. In England, the widow entitled to dower in an equity of redemption in a mortgage for years, has also, upon the same principles applicable to *47 that analogous case, the right to redeem, *by paying her

New-Jersey case of Dennis v. Kiernan, in Chancery, 1829, is cited. The Statutes of Ohio, 1824, gives dower not only in all lands whereof the husband was seised as an estate of inheritance during the coverture, but in all his right, title or interest at the time of his death, in lands and tenements held by bond, article, lease or other evidence of claim. Chase's Statutes of Ohio, vol. ii. 1314. If the husband purchases land, takes possession, makes improvements, and pays part of the purchase money without deed, the widow is entitled to dower. Smiley v. Wright, 2 Ohio Rep. 507.

In North Carolina, on the other hand, it is said to have been more than once decided, that the widow was not entitled to dower in her husband's equity. Henderson, J., in 1 Badger & Devereux's Equity Cases, 196.

See Rowton v. Rowton, 1 Hen. & Munf. 92. In Alabama, the widow is entitled to dower in lands held for the use, or in trust for the benefit of her husband, provided she would be entitled if the estate was a legal one. Laws of Alabama, 247. sec. 9. So, in Mississippi. R. C. of Mississippi, 1824.

In the case of Robinson v. Codman, 1 Sumner, 129, Judge Story held, at the Circuit Court in Maine, that an estate held by the husband in trust, was not liable to the dower of his wife. See, also, Cooper v. Whitney, 3 Hill, 101. S. P. Swaine v. Perine, 5 Johns. Ch. Rep. 482. Gibson v. Crehore, 5 Pick. Rep. 146. Bell v. Mayor of New-York, 10 Paige, 49. infra, 75.

House v. House, id. 159, vide

proportion of the mortgage debt, and to hold over until she is reimbursed, a

As to the interest of a widow of a mortgagee, the case, and the principles applying to it, are different. A mortgage before foreclosure is regarded by the courts in this country, for most purposes, as a chattel interest;b and it is doubted whether the wife of the mortgagee, who dies before foreclosure or entry on the part of her husband, though after the technical forfeiture of the mortgage at law by non-payment at the day, be now, even at law, entitled to dower in the mortgaged estate. The better opinion I apprehend to be, that she would not be entitled as against the mortgagor. The New-York Revised Statutes have settled this question in New-York, by declaring that a widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he acquired an absolute estate therein during the marriage.d

*II. In what way dower will be defeated.

*48

Dower will be defeated upon the restoration of the seisin under the prior title in the case of defeasible estates, as in the case of re-entry for a condition broken, which abolishes the intermediate seisin. A recovery by actual title against the

By the absolute estate, in the revised code, more was intended than the estate which is technically absolute at law on default of payment at the day. I presume the word absolute is here to be taken in the strongest sense. In Runyan v. Mersereaux, 11 Johns. Rep. 534, it was held, that the freehold was in the mortgagor before foreclosure or entry. If the mortgagee enters without foreclosure, the freehold may then be shifted in contemplation of law; but still the mortgagee has not an absolute estate, so long as the equity of redemption hangs over that estate and qualifies it. According to the English law, the wife of the mortgagee would be entitled to her dower, in such a case, from the heir of the mortgagee, who died in possession, though the estate in dower would be defeasible, like her husband's estate, by redemption, on the part of the mortgagor. The words of the new revised statutes were probably intended to stand for an estate with the equity of redemption finally foreclosed and absolutely barred. Upon that construction the restriction has been carried beyond the English rule, and, I apprehend, beyond the necessity or reason of the case.

• Perkins, sec. 311, 312. 317.