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Rands and wife v. Kendall.

any lands and tenements held by bond, article, lease or other evidence of claim." There is no mistaking of the provisions of this law. Its terms are clear, precise and explicit. That a widow may have dower, her husband must have had, at some time during the coverture, a legal title to the premises in which dower is demanded, or he must have had an equitable interest, at the time of his death. If, at any time during coverture of Adbeel Coleman with the complainant, Rachel Rand, he had a legal title to the land now in controversy, or if he had an equitable interest in the same land at the time of his death, the complainants are entitled to a decree.

Then what are the facts? On the 24th of April, 1818, and before his marriage to the complainant, Rachel, Adbeel Coleman mortgaged this land to James Ferguson, to secure the payment of $2,910, with a proviso or condition in the deed, that if this $2,910 should be paid on or before the 24th of April, 1825, with lawful interest, to be paid annually, from 24th April, 1819, then the deed to be void. The mortgage was not to secure the payment of the principal sum alone, but, also, to secure the annual payment of interest. On the 24th of April, 1820, the first installment of interest. fell due, but was not paid, and the condition was broken. What is the consequence?

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Complainants' counsel contend, that as it was a simple security for the payment of a debt, the mortgage is a mere incident to the debt, and that although the condition is broken, yet that the legal title to the land remains, as before, in the mortgagor. The modern decisions and the decisions of this Court, to a certain extent, favor this opinion. It has been repeatedly held that an execution might be levied upon the land, the mortgagor being in possession; that the mortgagor was to be considered as having the legal title. But it has never been so held but with this restriction: that as between the parties to a mortgage, the deed, after condition broken, becomes obsolete. As to all the world but the parties, the legal title is considered as in the mortgagor; but, as between the parties and those claiming under them, the legal title is vested in the mortgagee. I

Rands and wife v. Kendall.

think I am not mistaken in saying, that such has been the uniform language of the Court; and, therefore, it is, that after condition broken, the mortgagee may recover the possession of the land in an action of ejectment. Without the legal title, he could not so recover. Such being the law, it follows, that the condition being broken by the nonpayment of the interest which fell due on the 24th April, 1824, the legal title then became, as between Ferguson and Coleman, vested in Ferguson, and was never afterwards vested in Coleman. It was after this period that his marriage with Rachel Rand took place, and during the coverture he had not an estate of inheritance in the land in which dower is demanded.

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But during the coverture he had an equity-the equity of redemption. Did this equity continue in him at the time of his death? Wright, in 1821, acquired an interest by the assignment of the note, and mortgage, and on the 2d of November, 1824, Coleman conveyed to him his interest in the land. That interest was nothing but an equity of redemption. In fact, it is apparent that the object was to convey or release this equity of redemption. But the language of the deed is broad and comprehensive enough to convey whatever interest he might have had in the property. His wife joined with him in this conveyance, undoubtedly supposing she had a right of dower, and intending to release that right. But now, supposing that there is some formal defect in the acknowledgment, she seeks to avoid the deed. She may, perhaps, avoid the deed, but if she does, it can do her no good. She had not such an interest in the land, as that it was necessary for her to join in the deed. Whether she could ever have an interest, depended upon the contingency that her husband should die possessed of an equity. Having but an equity, he could transfer it by his own deed, and, thereby, defeat his wife of dower. He did not wish to do this, however, without her consent, and, therefore, she joined him in the conveyance.

The complainant may, by possibility, be in a worse situation than she would have been had the equity of redemption not

In Bank. Dec. Term,

1846.

Dec. Term,

1846.

Rands and wife v. Kendall.

IN BANK. been conveyed; but it is by no means certain. In such case, it is true, she would have been nominally entitled to dower, not because her busband was seized of a legal estate during the coverture, but because he died possessed of an equity. But her dower would have been subject to the lien of the mortgage, inasmuch as that was a subsisting lien at the time of the marriage. If, upon sale under a decree of a court of chancery, the mortgaged premises had been sold for the satisfaction of the debt secured, and any surplus remained after the satisfaction of the debt, of this surplus she might have claimed a share in virtue of her right of dower. Beyond this, she could claim nothing.

But it is claimed that the debt was paid and the mortgage satisfied by the execution of the deed, which operates as a relinquishment of the equity of redemption, and that the widow is to have dower as of legal estate. Now, what was the real nature of the transaction? The land had been mortgaged in 1818, to secure the payment of a debt. In 1824, the mortgagor became satisfied that it was of less value than the amount of the debt. An arrangement was made between the mortgagor and the assignee of the mortgage and debt, by which the mortgagor was to transfer his remaining interest in the land to the assignee, which was to be received in full satisfaction of the entire debt. This arrangement was carried into effect, and now this Court is called upon, not as a court of law, but as a court of equity, to say that the effect of this agreement was such as to restore the mortgagor to his legal estate, or, at least, so far to restore him as that his widow shall have dower. This may be equitable, but I do not understand how. On the contrary, it is clear to my mind that such decision would be manifestly inequitable and unjust.

The

And who is it that makes this claim upon the Court? Not the "lone widow," the "poor, unprotected female." "widow" made no complaint while a "widow ;" the "female" made no complaint while "unprotected." It is not the "widow," but it is Charles Rand, the husband of that widow, who

Rands and wife v. Kendall.

Dec. Term,

1846.

is calling for the equitable interference of this Court. And in IN Bank. order to obtain that interference, his wife is compelled to do an act which she did not do during her widowhood, that is, to deny her solemn deed, on the ground that a magistrate made a mistake in reducing the acknowledgment to writing.

Inasmuch as Adbeel Coleman had no legal estate in the land in which dower is demanded, during his coverture with the complainant, Rachel Rand, and inasmuch as he had no equitable interest in the same at the time of his death, she is not entitled to dower, and the bill must be dismissed at complainants' costs.

READ, J., dissenting. I am of opinion that Adbeel Coleman was seized of an estate of inheritance during the coverture, within the meaning of the dower act applicable to this case."

Up to the present term, although there have been conflicting dicta, the decisions of this Court have uniformly treated the mortgagee as a mere lien holder at law, as well as in equity. Accordingly the estate of the mortgagor has been sold upon a common law execution as legal estate, in fee simple, and mortgagees have not reconveyed on receiving payment of their debts.

The great question is, whether a mortgagee, after condition broken, holds the legal estate in fee. If he be not the owner of the legal estate of inheritance, it is clear the mortgagor is such owner. This Court has expressly decided that a mortgagee may, after condition broken, assign whatever interest he holds in the mortgaged lands by a mere assignment of the debt, and also that payment of the debt extinguishes such interest. That the mortgagee holds a legal interest and has good right to the possession of the mortgaged property, whether real or personal, is not doubted, wherefore he may maintain an action to recover the possession. This right is perfectly consistent with the character of his lien-whereas the doctrine that the mortgagee of land, after condition broken, is the legal freeholder, and yet that he may transfer his interest without deed, is manifestly inconsistent.

IN BANK. Dec. Term,

1846.

Rands and wife v. Kendall.

It is said that, at all events, as between the parties, the mortgagee is the freeholder. But that opinion is irreconcilable with the decision that payment of the debt destroys all the interest of the mortgagee as to all the world, including the parties. The reason given is, that the mortgagee is at law as well as in equity a mere creditor, who has a specific lien on the property for the payment of his debts. Perkins v. Dibble, 10 Ohio Rep. 439; Moore v. Burnet, 11 Ohio Rep. 341; Cameron v. Hill, 5 Hill's Rep. 276; Edwards v. The Farmer's Fire Co. 21 Wend. Rep. 483, 486–7; S. C. on error, 26 Wend. Rep. 541. As between the parties to the mortgage, an assignment of the mortgage debt confers the mortgage title upon the assignee, and he must be regarded by the debtor as the mortgagee, both at law and in equity.

In Collins v. Torry, 7 J. Rep. 282, the Court said: "We 'cannot now, with any justice or consistency, say that the in'terest of the mortgagor is the real estate at law, and yet that it is not such estate when the mortgagor's widow comes to ask her dower of the heir or grantee of her husband." Judge Southard, in Montgomery v. Bruere, 1 Southard, 276, seems most thoroughly to have understood and most felicitously to have explained the American doctrine of mortgages. I shall therefore quote liberally from his opinion.

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"The great object of inquiry on this subject is, where was 'the legal seizin of the land at the marriage? in the mortgagor ' or mortgagee? It is the legal seizin which is the object of 'search, because that is subject to dower. However strong

may be the light in which the estate of the mortgagor is 'viewed in the courts of equity, that light, although it may 'direct to the reason and justice of the claim, will not govern 'the decision of this Court. We give dower in lands, in which 'we find the legal seizin. But when that seizin is found, it 'must be subject to all legal consequences and incumbrances. We are not to maintain it for one purpose and deny it for another to toss it backward and forward as may suit the 'convenience of the tenant, at one time giving him all the ben

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