Merselis v. Van Riper

Pitney, V. C. The question of fact as to the value and situation of the premises was reported on the master’s personal knowledge. Ko evidence was given on the subject of their being so situate that dower could or could not be assigned, except that of Mrs. Van Riper, and her evidence was to the effect that it was practicable to assign dower to her, and this evidence appears to have been undisputed. Her age, also, was given. The master, however, it is to be observed, does not find that it was impracticable to assign dower by metes and bounds, but, in effect, that such assignment would greatly injure the value of the remainder of the premises. The right of the widow to have her estate in dower protected in the mode proposed by her seems to be indisputable. 2 Jones Mort. § 1067 ; Opdyke v. Bartles, 3 Stock. 133. The widow is in possession of a defined portion of the premises, as dowress,' under her right of quarantine. Her possession is a freehold estate. It may continue for her life, and can be reduced in extent only by an actual assignment of dower. She is entitled to have this estate protected by redeeming this.mortgage. As between her and the complainant, she is bound to pay the whole; as between her and the owner of the fee, the amount she should pay is to be apportioned upon the basis of the present value of her life estate. And if the owner of the fee in this case had paid off this mortgage, she would be obliged to pay an amount to be ascertained in the same manner as her share in the proceeds of the sale of the whole premises would be ascertained. This mode of dealing with the widow’s right of dower in such case was adopted by Chancellor Kent in Swaine v. Perine, 5 Johns. Ch. 482 (at p. 493), and in this state by Chancellor Green in Chiswell v. Morris, 1 McCart. 101. 2 Scrib. Dow. (2d ed.) 696 ; Bell v. Mayor, 10 Paige 49 ; Foster v. Hilliard, 1 Story 77. I am unable to see any reason why the widow should not be entitled to redeem this mortgage for the protection of her life estate in the premises while she is in possession of a specific [622] portion under quarantine, and before dower is assigned her, precisely as would a grantee by the husband of a portion of the mortgaged premises, subject to a just proportion of the mortgage debt. In such case, the practice is well settled in New Jersey to sell the property in parcels if the complainant is not prejudiced thereby; and the right of a party owning a portion of the mortgaged premises to stop a sale by paying a proper share of the amount due is well settled. Stillman v. Stillman, 6 C. E. Gr. 126; Hoy v. Bramhall, 4 C. E. Gr. 563; Mickle v. Rambo, Sax. 501; 2 Jones Mort. §§ 1063, 1067; Pearce v. Morris, L. R. 5 Ch. App. 226 (1870), where the subject is fully discussed; Howard v. Harris, 1 Vern. 33; Palmes v. Danby, Pr. Ch. 137, where it was held that a dowress redeeming had a right to hold the mortgage against the heir; and see 1 Pow. Mort. *311 et seq. and notes; Saville v. Saville, 2 Atk. 459 (at p. 463); Howard v. Attorney-General, 2 Mod. 174; Coote Mort. *517, *526. By. strict right, the complainant must not be hindered or delayed in his foreclosure .by any questions arising between the defendants out of dealings with the premises subsequent to the mortgage. But this is a right on the part of the complainant that is seldom used in this state to prevent the defendants from appearing before the master and having him arrange the sale in parcels, provided such a sale does not affect the value of the premises in such manner as to prevent their bringing enough to pay the whole amount due, the time occupied in settling the rights of the defendants inter sese not usually causing such a delay as to seriously interfere with the complainant’s rights. Strict practice required that the conflicting rights of the several defendants, which arise subsequent to the giving of the mortgage, should be administered and settled upon cross-bills; but it has not been the practice in this state to drive parties to that expense, but a well-settled practice has arisen of settling such rights before the master. At first I was inclined to think that there should have been a cross-bill in this case, but the complainant herself is one of the trustees under the will of the mortgagor and husband of the widow, and as such is the legal [623] owner of' the premises, subject to the dower right of the widow, and there is not the least room to suspect that the rights of the cestioi que trust are being prejudiced for want of her having a day in court. The result is that the exceptions must be sustained, the proportion of the debt to be borne by the dowress and devisee respectively must be ascertained according to the life tables, and the premises sold subject to the dower to pay the amount fixed as belonging to the devisee to pay, and the widow’s right to be sold to pay the other, the costs to be borne in the same proportion. It will probably not be necessary to make a reference in order to make this ascertainment. The details of the decree will be settled upon notice.