Pickett v. Buckner, Newman & Co.

Simrall, J.: The important question is presented, for the first time in this court, whether a mortgage in fee, made by the husband during coverture, bars his widow of dower. Dower, at common law, is a right institutional in character, arising in law, and not out of the pact or consent of the parties. Marriage and seizin are the facts from which it springs, and at once fastens upon the land by a right paramount to that of any person claiming upon the husband by a subsequent act. 2 Coke Litt. 32. It results, therefore, — 240 — that neither the alienation of the husband, nor any act suffered or done by him, such as bankruptcy, confers a title upon the alienee, or the assignee, which will defeat dower, if the right of the dowress becomes consummate by survivorship. All incumbrances and derivative interests created by the husband subsequent to the occurrence of the facts upon which the inchoate right of the wife arises, are subordinate to her claim, and will be postponed and displaced, in so far as they conflict with her right, when it becomes complete and consummate. The right of the dowress is dependant upon, and grows out of the title of the husband. It is a derivative; and offshoot from it. If, therefore, the husband loses the land by title paramount, the inchoate interest of the wife falls with it. It is' the same thing in law, as if the husband never had seizin. If the dower has been assigned, it necessarily terminates upon an eviction under a title superior to that of the husband. It follows also, from the nature of this inceptive right, that it takes hold of the land subject to all the incumbrances and charges placed upon it by the husband prior to the marriage and seizin. Nor does it matter how these charges were created; they may be the result of contract, as a mortgage, or an incident of the law, as a statute staple or judgment lien. Much as the marital rights of the wife, chief of which is dower, are favored, they are not so highly esteemed as to curtail or impair any estate or charge upon the land, older than the marriage and seizin, and which upon foreclosure or enforcement would divest the freehold title of the husband. Chancellor Kent (4 Comm. 50), says the wife’s estate is part of the husband’s, derived from him, and must be subject to all the incumbrances existing against it at the time of the marriage, or its inception.’ ’ This right is liable to be destroyed by any claim or incumbrance existing before its inception, and which would defeat the husband’s — 241 — seizin. Scott v. How, 3 Barb. 319; Trustees v. Pratt, 10 Md. 11. Such were the rules of the common law. Prior to the adoption of the Revised Code of 1857, dower here was very much the same as at the common law. The Code made some important changes. Prior to that time, the wife was dowable of all the lands of which the husband was seized of an estate of inheritance, at any time during the coverture, and of which she has not made relinquishment. The specific change made by the Code is, that she is dowable of all the lands of which the husband “died seized and possessed,” and those conveyed during the coverture mala fide, and not upon a valuable consideration. Bringing the principles of the old law into juxtaposition to these changes, we can the more distinctly mark and observe their scope and extent. As we have seen, when once the inchoate contingent right of the wife vested in possibility, the husband had no power, by any thing that he could do or suffer, to defeat it. The right of taking hold of the land, as part of the husband’s title, instantly, upon, a beneficial seizin in him, it followed that any mortgage or other conveyance made by him, after the seizin, was inoperative to affect her right. It would vest absolutely upon the contingency of her surviving the husband. Under the statute, the inceptive interest of the wife is contingent and defeasable upon another event than survivor-ship of her husband. If the husband, in good faith, and for a valuable consideration, conveys the land, then her inchoate right ceases to exist, and is defeated. If he make a voluntary conveyance or a devise, her right in possibility goes along with the land to the donee or devisee. In either of these cases, survivorship is the only contingency to consummate her title. The wife has no claim upon any land conveyed by her husband, in good faith, and for a valuable consideration, during the coverture. Upon all other lands of which he had beneficial seizin during coverture, or of which he died seized and possessed, she may be endowed. — 242 — Is a mortgage in fee simple a conveyance for a valuable consideration, within the intendment of the statute ? Much of the doubt and difficulty which environs the subject arises from not analyzing the instrument, and closely observing its two fold character, looking at it both in its legal and equitable aspects. A mortgage in fee serves a complex purpose; it is a security for a debt, and at the same time a conveyance of the estate. In strictness it creates a conditional estate, oían estate upon defeasance. It transfers the estate to the mortgagee upon the condition, that, if the debt is paid on the day named, it shall be void. If default is made, the estate which before was conditional, has become absolute. The mortgagee has a right of entry, and the land has gone from the mortgagor forever. Payment after the day did not restore the title to the mortgagor. Litt. 338. Breach of the condition made the title absolute in the mortgagee. Hill v. Robertson, 24 Miss. 375. Compliance with the defeasance by performance or offer to perform, defeats the title of mortgagee. But if the estate becomes absolute by forfeiture of the condition, the wife of the mortgagee is entitled to dower, and the estate is subject to any incumbrance, the husband may impose upon it. Litt., § 332; 2 Black Com. 158; Powell on Mort. 9, 10; Parsons v. Wells et al., 17 Mass. 421. This doctrine is vindicated by. the principles, which regulate estates upon condition. The ■seizin of the mortgagor was gone the moment the estate became absolute, and the mortgagee could enter, or could recover the possession upon the strength of his title. This seizin must be beneficial, though but for an instant of time. Therefore, if the husband is the mere conduit to pass the title, as where the same act which gives the estate, transfers it to another, there is not such seizin as will support the claim of dower. As also where the vendee, when he accepts a deed, mortgages the land back to the vendor for a part or the whole of the purchase-money, the right to dower is subordinate to the vendor’s security, for these are treated — 243 — as one transaction, as much as if both were incorporated into the same instrument. 4 Kent, 38; Park on Dower, 43; Co. Litt. 31. The doctrine of the English courts was well settled before the passage of the statute 3 & 4 Wm. IV, chap. 105; that the widow was not dowable of equitable estates, hence she had no right of dower in the equity of redemption. Important modifications were made by the courts of equity, as its principles became more expanded, and its jurisdiction fully established. The court of law treated the title as absolute in the mortgagee after forfeiture, and could afford no remedy. Courts of equity, however, on the basis of relieving from forfeiture, where substantial justice could be done, interfered, after breach of condition, and allowed the mortgagee within a reasonable time to redeem. The legal title was still recognized to be in the mortgagee. This favor of redemption is granted on the terms of doing complete right, and discharging conscientious obligations. If a person mortgages land to A. and afterward to B., who at that time has no notice of the mortgage to A., B. may purchase in a precedent mortgage, although nothing be due upon it, and thereby prevent A. from redeeming unless upon the terms of satisfying the mortgage to B. ; for B. by purchasing in the precedent mortgage obtains the legal estate ; and equity will not disturb the legal title and equity on one side, and equity only on the other. Powell on Mort. 479; 2 Vern. 157. So if the mortgagor borrow more money on bond, binding the heir, courts of equity will not permit the heir to redeem, without paying the bond as well as the mortgage debt, because the legal estate being in the mortgagee after forfeiture, equity will not interfere with or defeat it, unless the heir shall satisfy all equitable demands. 3 Bac. Abr. 652. On strict principle, the only remedy of the mortgagor, even after payment of the debt, when the mortgagee has entered for condition broken, is by bill in equity. Parsons v. Willis, 17 Mass. 419. So strict was the adherence of the common law to the — 244 — principles distinguishing the several sorts of estates, that when the title had become absolute in the mortgagee, no subsequent acceptance of the mortgage money nor reconveyance of the land, would destroy the legal rights of his widow to dower. Park on Dow. 100; Co. Litt. 221. In Dexter v. Harris, 2 Mason, Judge Story says, “a mortgage in fee conveys a conditional estate.” In the United States v. Fisher, 2 Cranch, 358, the point was, whether a transfer of property by the debtor defeated the priority of the United States over other creditors, the court holding that a fair transfer would not be overreached by the statute, declared a conveyance by mortgage to be good, for “a mortgage is a conveyance of property and passes it conditionally to the mortgagee.” In Conrad v. Ins. Co. 1 Pet. 441, remarking upon the character of the instrument, the court say, “ a mortgage in discussions in a court of equity is sometimes called a lien for a debt, and so it is and something more ; it is the transfer of the property.” Describing the estate of the mortgagee in Watson v. Dickens, 12 Smedes & Marsh., it is said: “ After condition is broken, certainly the absolute ownership is vested in the mortagee.” Again, in Head v. Dowell, 40 Miss. 796, it is declared “that a mortgage or deed in trust conveys the full legal title, and nothing remains behind but the equity of redemption.” On a sale by the sheriff of equitable estates, as such the equity of redemption, the purchaser must go into a court of chancery to get the legal title, 5 Smedes & Marsh. 506 ; 7 ib. 730. So completely is the mortagee invested with the legal title, that after payment, if satisfaction is not indorsed on the record of the mortgagee, there must be a reconveyance, or some other formal mode to re-invest the mortgagor with the title, or he must resort to chancery, as he has but- an equity. Wolf v. Dowell, 13 Smedes & Marsh.; Smith v. Otby, 26 Miss. 298. We are unable to discover the reason why the husband may, for a valuable consideration, convey absolutely, so as — 245 — to deprive tlie widow of dower, and yet a less conveyance by way of mortgage not be within the act. Both are within its letter. If the hnsband should convey absolutely to his creditor, in satisfaction of his debt, it would hardly be pretended that the claim to dower would not be terminated. If he conveys conditionally, as security for the debt, the husband may redeem in his life-time; if he fails, she may redeem and call upon the heir for contribution; or upon foreclosure, she may be endowed out of the surplus. In employing the term in the dower act (art. 162, Code 467), “conveyance,” “conveyed,” we suppose that the legislature meant the sense in which the word is ordinarily used in our jurisprudence. It is a technical or gwsz-technical word of precise and definite import. As defined by Bouvier, 1 Law Die. 346 “Conveyance is the transfer of the title to land, by one person to another.” “The instrument itself is called a conveyance.” It is a general term indicating the several modes of passing title. Such was the import given to it in Sessions et ux. v. Bacon, 23 Miss. 273. The wife had power with the concurrence of her husband to “convey” her separate property. The objection was that this did not authorize her to mortgage it. But, argued the court, as the major includes the minor; if she may convey absolutely, it is clear that she could exercise the less power of making a “conditional conveyance.” The English rule, that the widow of the mortgagee is dowable, never obtained a solid footing in the American common law. The English courts uniformly held that dower did not obtain in equitable estates, and so the law continued until the statute of 34 William IY, when the right was extended so as to embrace them also. The doctrine is, perhaps, now universal in all the states, that courts of equity regard the mortgagor by virtue of his equitable title as substantial owner, his estate being burdened with the trust imposed -by the defeasance clause. He is seized of an equitable estate of inheritance, of which — 246 — the widow was dowable. Her right is confined to this equitable estate whatever its extent and value. Whitehead v. Middleton, 2 How. 696, very forcibly and clearly states the principle. The widow of the mortgagor is entitled to dower, as against all other persons except the mortgagee, and the husband’s seizen is good as against all other persons and sufficient to uphold her right. Art. 12, Rev. Code 308, is nothing more than a legislative declaration of a rule which had been already incorporated into the jurisprudence of this state, and the American states generally, that the mortgagor shall be deemed to be the legal owner of the mortgaged property, except as to the mortgagee or his assigns after condition broken, at least so far as dower questions and interests are involved. The language of the chief justice in the case already quoted from 2 How. 697, is: “As regards all other persons, the law seems to be now well settled, that the mortgagor is deemed to be seized, notwithstanding the mortgage, and before foreclosure or entry is deemed the owner, of the land. The inevitable result is, that the widow must be entitled to dower, although the husband had but one equity of redemption.” We are conducted to these conclusions, that a mortgage in fee, executed by the husband during the ■ coverture, in good faith to secure a debt, is a “ conveyance for a valuable consideration within the statute,” and imposes an incumbrance upon the estate, to which the dower of the widow is subordinate. . That until foreclosure, after the death of the husband, she may have her dower assigned, but it will be subject to the mortgage. The widow may redeem the land by payment of the mortgage debt, have her dower assigned and compel the heir to make contribution. Upon foreclosure, after the death of the husband, the surplus being the value and representation of the equity of redemption, she may be endowed of that. — 247 — In this case of Mrs. Pickett, the widow of the mortgagor was made a defendant; in her answer treated by the parties and the court as a plea. She claims dower in the mortgaged premises and also a homestead exemption. The plea was overruled, and from that order an appeal was taken.. If by that decision the chancery court meant or intended to hold that the widow had no dower interest in the mortgaged premises, it was erroneous. She is entitled to dower, upon foreclosure, in the surplus, after satisfying the mortgage debt. As we have said, her title is subordinate to the mortgagee. We reverse the decree of the chancellor, and remand the cause, with directions to extend and apply the dower of Mrs. Pickens, to whatever surplus, if any there may be, upon foreclosure and sale of the lands.