Bank of Commerce v. Owens

Robinson, J., delivered the opinion of the Court. Two questions arise upon this appeal: First, is the appellee entitled to dower, and secondly, if so, is she dowable in the whole proceeds arising from the sale of the mortgaged premises, or in the surplus only, after the payment of the mortgage debts ? On the part of the appellant it is insisted, that by the execution of the mortgages she parted with her inchoate right of dower in the legal estate, and that by the subsequent assignment of the husband under the deed of trust, her dower was barred in the equitable estate. In other words, it is held that the wife is not entitled to dower in an equitable estate under the provisions of sec. 5 of Art. 45 of the Code, unless it is held by the husband at the time of his death. We do not understand, however, the cases of Hopkins et al. vs. Frey, 2 Gill, 363, and Miller vs. Stump, 3 Gill, 310, to go to this extent. In the former, it was decided that the widow was not entitled, because the husband parted with the equitable estate prior to the passage of the Act of 1818, ch. 193, under which she claimed. And in Miller vs. Stump, although it was held that she could not recover it as against the purchaser, yet the Court said, “ It may be asked whether she cannot claim in lieu of the one-third of the land, a portion of the surplus.. In some cases it may be argued, that the widow is entitled to a portion of the surplus. It is not necessary, however, upon this appeal, to inquire if such be the law'of this case. If, indeed, she be entitled to receive anything, she is not to receive it of the purchaser.” Here is a very strong intimation that the widow may be entitled to dower in the surplus. Certainly it cannot be said that the Court decided' that she was neither en — 325 — titled to dower in the land, nor in the surplus. • The latter was left as an open question. But in this case, it must be remembered, the husband was seized of a legal title, upon which the wife’s inchoate right of dower attached by the common law. And can it be said, that pledging this right to secure her husband’s indebtedness, she thereby puts it in his power, or that of his creditor to defeat it altogether ? To this view we cannot yield our assent. The husband may assign the equity of redemption, but no act of his could deprive the widow of the right to redeem, to which she is entitled undér the common law. Moreover in this case, it cannot be held that the husband parted with the equitable estate within the supposed meaning of the Court in Miller vs. Stump. There was no sale here by him for a money consideration, but the assignment was made to trustees, in order that they might sell and apply the proceeds towards the extinguishment of the very mortgages, in favor of which the wife had pledged her dower right. It was, in fact, but a conversion of the equity of redemption into money, for the benefit of creditors. Now would it not be a construction equally strange and unjust, to say, that the widow is not entitled to dower in the legal estate, because she parted with it by joining her husband in the execution of the mortgages ? nor can she claim it in the equitable estate., because that was conveyed by the husband to trustees to sell, and apply the proceeds to the extinguishment of the mortgages ? So that between the two, the dower is altogether defeated. It will be observed that we have treated the mortgagee as holding the legal title; for such we understand to be his estate by the common law. In the case of the George’s Creek Coal & Iron Co.’s Lessee vs. Detmold, 1 Md., 225, where there was a mortgage — 326 — with a covenant, that the mortgagor should remain in possession and receive the rents and profits until forfeiture, it was held that such a covenant operated as a re-demise, and that until the breach, the mortgagee could not maintain ejectment against the mortgagor, because to sustain such an action, he must not only have the legal title, but the right of possession. There is nothing in the decision of 'this case, that conflicts with the relations of the mortgagor and mortgagee, as they existed at common law.’ It is our opinion, therefore, in this case, that the assignment by the husband under the deed of trust, does not defeat the appellee’s right of dower. If this be so, then in what is she to he endowed ? — the whole proceeds of sale, or the surplus only ? We-have not been able to find any decision in England upon this question, and, in fact, it was not until the Statute of 3 and 4 "William IV, ch. 105, that the wife was entitled to dower in an equitable estate. In this country, however, where the dower right in the equity of redemption is established by judicial decision, or conferred by statutory provision, we find a number of cases directly bearing upon the point. Without extending this opinion, by an examination of all the authorities, we think it may be said that they fully ■ establish this general principle, that where the wife unites with the husband in- a mortgage of real estate belonging to him, and the property is sold under a decree of foreclosure, she is entitled to dower in the surplus only, after the payment of the mortgage. . In support of this, we refer to Smith vs. Jackson, 2 Edws. Ch., 28; Titus vs. Neilson, 5 Johns. Ch., 452; Tabele vs. Tabele, 1 Johns. Ch., 45; Jennison vs. Hapgood, 14 Pick., 345; Hartshorne vs. Hartshorne, 1 Green Ch., 349; Hinchman vs. Stiles, 1 Stock. Ch., 349; Harrow vs. Johnson, 3 Met., 578; — 327 — Hawley vs. Bradford, 9 Paige, 201; Vartie vs. Underwood, 18 Barb., 561; and Mantz vs. Buchanan, 1 Md. Ch. Dec., 206. "We think also the rule is well settled, that where the purchaser of the equity of redemption redeems the property, the widow is only entitled to dower by contributing her proportion of the mortgage debt. In 1 Scribner on Dower, 508, it is thus stated : “ The rule exacting contribution from the widow, where a person deriving title through the husband has redeemed the lands from a mortgage binding upon her interest, as a condition upon which she will be let into dower, is fully established in numerous decisions in this country.” In Swaine vs. Perine, 5 Johns. Ch., 482, the Chancellor said: “ The plaintiff was a party to the mortgage to Dunn, and her claim to dower was only in the equity of redemption, or the interest which her husband had remaining in the land after satisfaction of the mortgage. The redemption was for her benefit, so far as respected her dower. To allow her dower in the land without contribution, would be to give her the same right that she would have been entitled to, if there had been no mortgage, or as if she had not duly joined in it.” In this case the husband conveyed to the trustees the equity of redemption, and under the terms of the deed they could sell nothing more. The purchaser took it, subject to the liens and incumbrances then existing — the mortgagees’ — the lien of the appellee, a judgment creditor, and the claim of the widow to dower, whatever it might-be. If the purchaser redeemed the mortgages, or if they are redeemed by the trustees out of the proceeds of sale, is it not too clear for argument, that the widow could only be let into dower as against him, by contributing her proportion of the mortgage debt ? If waiving her dower in the land, she consents to look to the proceeds of sale, how does it change the aspect of the case ? The equity of redemption being the only interest which the trustees — 328 — could sell, that interest is represented by the surplus after the payment of the mortgages. In that only can she be entitled to dower as against the creditors of. the husband. But it was urged that the wife having pledged her separate estate for the debts of her husband, she is entitled to the ordinary rights and privileges of a surety. This, we admit, is the ■ established law of this State. Johns vs. Reardon and wife, 11 Md., 465. But is the inchoate right of dower recognized in law as “ the separate estate of the wife?”. It certainly does not come by settlement, or gift, or devise, or in course of distribution. It is recognized as a right of an appreciable interest, and it is not liable for the debts of the husband; yet it is an interest purely contingent; the enjoyment of which depends on her surviving the husband. In Hawley vs. Bradford, 9 Paige, 201, this precise point arose in a case where the. wife had united with her husband in a mortgage. The Chancellor said: “I ani not aware of any decision, however, in which the principle of suretyship has been applied to a ease like the present. And the two cases which came before my learned predecessor, Chancellor Kent, were disposed of upon the supposition, that the wife, who had joined the husband in a moi’tgage of his estate, was not entitled to have such mortgage satisfied out of the husband’s interest exclusively, so as to give her the full benefit of her dower in the whole premises, and not in the equity of redemption. The master was therefore right in supposing that Mrs. Bradford was not entitled to be endowed of the whole proceeds of the mortgaged premises, but only of the surplus which remained after paying the mortgage debt and the costs of foreclosure.” In Hinchman vs. Stiles, 1 Stockt. Ch., 454, the Chancellor said: “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 — 329 — more than her dower in the equity of redemption. This sum represents that equity of redemption. She is entitled to interest on the third of it, and no more.” (Decided 2d July, 1869.) And in Vartie vs. Underwood, 18 Barb., 561, where the wife had mortgaged her separate estate, and also united with her husband in a mortgage of property belonging to him, it was held that she was entitled to be substituted to the rights of a surety, only as to the separate property, and as to the proceeds arising from the sale of the husband’s property, she was entitled to dower in the surplus only, after the extinguishment of the mortgage. We are of opinion, therefore, in this ease, that the appellee cannot be substituted to the rights of a surety, and as against the creditors of the husband, she is entitled to dower only in the surplus after the mortgages are paid. • We are aware that the dower right is highly favored in law, and we have been anxious to affirm this decree, but a careful examination of the authorities obliges us to say that, in our opinion, it is erroneous and must be reversed. jDecree reversed, and cause remanded.