Peckham v. Hadwen

Bkayton, J. It is conceded that the first instruction asked is one proper to be given. Dower cannot be assigned out of that portion of an estate assigned to another woman in dower, and can only be assigned out of the remaining two-thirds. 1 Cruise, tit. Dower, p. 164. It is quite clear that the second instruction asked is one which cannot properly be given. By the statement of facts, it appears that the three parcels of land out of which dower is now claimed, together with a fourth parcel in which dower is not now demanded, were, during the lifetime of the husband of the plaintiff, conveyed by him oil mortgage to secure a debt of his, and that the plaintiff joined her husband in this deed, and thereby released her right of dower upon the same condition, viz., the payment of the debt, the conveyance to become absolute if the debt were not paid, and to become void if paid. The fourth estate was,. after the death of the husband, sold for the payment of all his debts, by his administrator, under a license granted him for that purpose. In the discharge of his duty, to pay all the debts of the deceased, the administrator caused this debt, among others, to be paid out of the proceeds of the sale, under a condition of sale that the purchaser should so apply them. These were so applied, and the mortgage debt paid, and the mortgage thereupon discharged by the mortgagee. Had this suit been against the original mortgagee, or any person holding under him by assignment, the widow would be estopped, by her release, from claiming dower in more than the equity of redemption. While the mortgage subsisted and until *165 performance of the condition, it was a bar to more. But tbe mortgage has ceased to exist. It bas become void by its own terms, as if it bad never been, and with it tbe release, which bas become void by tbe performance of tbe same condition. There is nothing, therefore, now subsisting, to bar tbe widow of her dower. This precise point was decided in tbe case of Mathewson v. Smith, 1 R. I. 22, and tbe wife held entitled to her dower. No authorities were cited in that case, but tbe reasoning of tbe court is abundantly supported by adjudged cases in point. One of these is tbe case of Hitchcock v. Harrington, 6 John. 290, where tbe mortgage was made by tbe husband to secure tbe purchase money of tbe estate mortgaged. Tbe mortgage was paid off by tbe purchaser of tbe estate. Kent, delivering judgment, says tbe mortgage is paid. Tbe purchaser bolds under tbe title of tbe husband, and not under tbe mortgagee. He is in place of tbe heir, and be cannot set up a satisfied mortgage. Tbe mortgage is for tbe benefit of tbe mortgagee only, and, until foreclosed, cannot be set up by anybody but by him, or bis assigns. See, also, Collins v. Irney, 7 John. 278 ; Barker v. Parker and others, 17 Mass. 563, and tbe case cited by plaintiff. It may be asked, what right bas tbe heir to any of tbe estate of bis ancestor without discharging bis debt, and what pretence bas be to complain of inequity, that tbe widow, who is a mere surety for tbe debt of her husband, bas been indemnified and saved harmless out of bis estate, and bis obligation to her bas been thus discharged ? She bad a right to be thus relieved, while any estate of her husband remained sufficient for that purpose, though nothing remained to tbe heir. Tbe propriety of tbe third instruction asked is not apparent, considering tbe express language of tbe statute upon tbe subject. Section 3, of chapter 202, Revised Statutes, page 503, provides that “where dower is legally demandable in more than one parcel of land belonging to tbe same person, such assignment need -not be of a part of each lot or parcel, but may be together in one lot as tbe interest and convenience of tbe widow and tbe heir or person having tbe next immediate estate of freehold shall require.” *166 Without any evidence that the interest or convenience of the parties requires what is here asked, we must leave it to the commissioners who are to view the estate, and will be able to judge what that interest or convenience may render necessary, and who can best do entire justice to the parties in this respect, to assess the dower in the mode they may judge best for the parties.