Hinchman v. Stiles

The Chancellor. The lot embraced in the first and third mortgages brought sufficient to pay off those encumbrances, leaving a surplus of five hundred and fifteen dollars and seventy-four cents. The second mortgage did not embrace this lot, and of course that mortgagee can have no claim upon this surplus. The question as to its disposition is between the widow of the mortgagor and the judgment creditors. This surplus represents the value of the equity of redemption. When this case was before the court, at the last term, it was decided that the widow was entitled to her dower in the equity of redemption, and that the court would protect her interest. It is now insisted that the widow is entitled to the whole of the five hundred and fifteen dollars and seventy-four cents. This cannot be so. She is entitled to nothing more than her dower in the equity of redemption. The sum represents that equity of redemption. She is entitled to the interest on one-third of it, and no more. Suppose the sheriff had sold two-thirds of the lot, and paid off the encumbrance * it is very clear that the widow would not have been entitled to the whole of the remaining one-third of the land as her dower. She would have been entitled to her dower — that is, her thirds — in the land that remained unsold. The widow’s costs .in this suit must be paid out o'f the surplus. Of the residue, two-thirds must be paid to the judgment creditors, according to their respective priority. One-third must be invested, under the direction of the court. The widow will be entitled to the interest during her lifetime, and at her death the judgment creditors will be entitled to the principal. As to the proceeds of lot number two, two-thirds must be appropriated to pay the second mortgagee her costs, and the [456] amount due on her mortgage. One-third must be invested under the direction of the court. The widow will be entitled to the interest during her life. At her death the principal will go, first to make up any deficiency the second mortgagee may be entitled to, and the residue will belong to the judgment creditors. Cited in Pierson v. Hitchner, 10 C. E. Gr. 134.