Hitchcock v. Harrington

Kent, Ch. J. delivered the opinion of the court. The first question arising upon this case is, whether the husband was so seised of the premises, during the coverture, as to entitle his wife to dower. The objection of the want of seisin in the husband, cannot be received from the defendants, as they hold under the husband, by virtue of conveyances from his son and heir at law. The husband died in possession, without any previous entry or foreclosure by the mortgagee, and-it ought not to be permitted to the-heir, or person claiming under him, and enjoying the estate,to deny the seisin of the ancestor. In Taylor’s case, 34 Eliz. (cited in Sir W. Jones, 317.) it was held, that if a tenant at will or for years made a feoffment in fee and died, and his wife brought dower against the feoffee, he could not plead that the husband was not seised. But if the defendants are allowed to make this objection, I think it [294] cannot avail them here, as the mortgage no longer exists* was paid off and discharged, without having been foreclosed. The mortgage estate is extinct; and the defondants hold under the title and seisin of the husband, existing prior to the mortgage. By discharging the mortgage, the title is to be deduced from the original pur» chase of the husband, and he is to be considered as hay» ing been seised ab initio. The defendants do not pretend to hold under the mortgage. The mortgagee exercised no other act pf ownership than making a lease for years. The title of the defendants is wholly from the heir; and when the heir sold, the amount of the mortgage was no doubt deducted from the purchase-money ; and the redemption of the mortgage was for the benefit of the title derived from the heir. The question is here the same as if the heir of the husband wa.s the defendant; and I cannot perceive any principle that would allow him to set up a satisfied mortgage in bar of dower. It is now the settled law in this court, and the same principle has been recognised in the court for the correction of errors, that the mortgagor is to be deemed seised, notwithstanding the mortgage, as to all persons except the mortgagee! and bis representatives. When his interest is not in question, the mortgagor, before foreclosure, or entry under the mortgage, is now considered, at law, as the owner of the landj and it does not lie with the heir or his assignee, to deny the Seisin, and defeat the wife of her dower. If the present tenant was the mortgagee, or a person deriving title under the mortgage, the case would ■present a very distinct subject' for consideration ; and the question would then arise, whether the husband acquired a seisin by his deed of the 3d of Matj, 1774, Competent to entitle his wife to dower, notwithstanding a mortgage to secure the purchase-money was presently, upon delivery of the deed, re-executed by him. But as that question does not necessarily present itself, the court forbear to discuss and decide it, I* [295] is sufficient, in this case, to say, that as the tenant claims 7 ,, 7 J . . , title under the seisin of the husband, and no right arising under the mortgage, and existing in the tenant, is set up, the tenant cannot be permitted to avail himself of a satisfied mortgage, in bar of the demandant’s right of dower. The same principle ought, perhaps, equally to estop him from setting up an existing mortgage, because we now regard the mortgage estate only for the benefit of the mortgagee and his assigns. As to the rest of the world, so long as it is not put in force, it is only a pledge or lien on the land, with which they have no concern any further than not to disturb it. The objection then to the demandant’s right to recover totally fails. 2. The remaining question is, whether any, and what damages the demandant is entitled to recover. The statute of Merton, which v/e have adopted, (Laws, vol. 1. sess. 10. c. 4. s. 2. p. 51.) gives the widow damages from the death of her husband, provided the husband died seised. The husband, in this case, died in possession, after the mortgage debt had become due, but without foreclosure, or entry by the mortgagee. According to the settled doctrine in our courts, and to which I have already alluded, (1 Caines’s Cas. in Error, 47. and 4 Johns. Rep. 41.) he is to be considered as dying seised of the inheritance, in respect to the dower of his wife, and within the purview of the statute. It is only as against the mortgagee, that the mortgagor is regarded as quasi a tenant at will. He is considered as the owner of the inheritance, in respect to the rest of the world, and to every beneficial purpose that concerns himself; nor does the sale of the estate to the present defendants make any alteration in the rule of damages. It was held in Brown and Wife v. Smith, (cited in Buller’s N. P. 117.) that if the heir sell to I. S. and the widow recover against him, he must pay the whole mesne profits, from the death of the husband, though he has not himself been half the time in possession. The widow is entitled to these damages under the statute, and she can recover only against [296] the tenant. Nor does her omission to show a demand of ker ¿ower prejudice her claim to damages in this case ; for it was decided in the K. B. in Dobson v. Dobson, (Cases temp. Hardw. 17.) that though no demand of dower in pais be shown ; yet the tenant, if he would excuse himself from damages, must plead tout temps prist; and unless he so plead, he shall not take advantage of the laches of the widow in not demanding her dower. The same rule has been repeatedly recognised. (Co, Litt. 32. b. 33. a. Buller’s N. P. 117.) The statute of limitations, which was mentioned in the argument, as another ground of defence, cannot apply here, if it be applicable at all to this action. It was not pleaded. The pleas which were put in, were all-to precise, specific facts; and under neither of them could or ought such a matter to be given in evidence. Upon the whole, the-demandant is entitled to judgment for her dower, in the whole lot in question, together with her damages, from the death of her husband. , Judgment for the demandant.,