Rands and wife v. Kendall. IN BANK. mere assignment of the debt. The Court, in order to defeat Dec. Term, this dower, must go the impossible length of holding to the 1846. very different rule, viz: that the mortgagor is not seized, as against such assignee; also, because, I suppose, he is, after condition broken, the freeholder of the mortgaged premises. The proposition of the Court must be materially modified, because it is now discovered that the mortgagor is not seized as to all the world except the mortgagee; for, under that rule, the widow could claim dower against the grantee of the husband, and such grantee could not deny the seizin of the husband, and insist that it was in a third person-the mortgagee. But it is in vain to look for consistency in the doctrine now advanced by a marjoity of the Court, or to endeavor to reconcile it with former decisions in this State or elsewhere. As to the expression commonly met with, that the mortgagor is the legal owner against all the world except the mortgagee, the meaning of that is, that although the mortgagee has the legal right to the possession, the mortgagor is, nevertheless, the owner, and no other person can set up the mortgage against him in a court of law. His action of ejectment cannot be defeated by proof that the possessory right is in the mortgagee, because that possessory right is qualified and of a peculiar character, unlike the absolute right to the possession for a term certain, which, if vested in a third person, would prevent the owner of the reversion from maintaining an action of ejectment against a trespasser. As against all the world, then, but the mortgagee, the mortgagor has a complete legal litle, but as against him, his title is not complete, because the mortgagee has the possessory right for the single purpose of making his debt. With these views of the nature of Coleman's estate in these premises, I need not inquire into the application of the clause of the dower act giving the widow dower out of the third part of the interest of the husband, at the time of his decease, in land "held by bond, article, lease or other evidence of claim." If the absolute owner of land is seized, then Coleman was Rands and wife v. Kendall. seized of the land, during the coverture, upon the well settled IN BANK. and sound American construction of a mortgage. There is still another discrepancy in the opinion of the majority of the Court. It is assumed, that the mortgagee is not the freeholder until the condition has been broken, so that he may maintain an action of ejectment. Apply this doctrine to the present case, and the complainants are entitled to recover; for, after the marriage, an extension of credit was given on the mortgage debt. I presume that no action of ejectment could have been maintained, after this transaction, until a failure to pay interest, previous defaults, if any, having been maintained. The only proof of a previous default, is a recital in Coleman's conveyance to Wright. Whether that is sufficient, or what is the legal presumption under the circumstances, I need not consider. Indeed, there is no end of anomalies under this decisison; for, if the legal estate of inheritance ever become vested in the mortgagee at all, it must have become vested immediately upon the delivery of the mortgage, subject only to be divested on performance of the condition. This is the old common law doctrine of mortgages; but if we are to restore that doctrine, the mortgagor's widow is never entitled to dower, no matter whether the marriage takes place before condition broken or after. "The fee simple conditional" is always a bar from the delivery of the mortgage. I do not understand that the Court are called upon by complainant's solicitors to say that the effect of the arrangement between Coleman and Wright "was such as to restore the mortgagor to his legal estate." They insist that Coleman, the mortgagor, was the freeholder at law and in equity, during the coverture, up to the time of the conveyance to Wright. They contend further, that the price of that conveyance was the mortgage money itself, thereby paid off, so that the claim of dower is not subject to any debt; but if it be so subject, they require the defendant, as owner of the inheritance, to bear his proportion according to the settled rules of equity. The bill is filed, as required by the statute, 1 Dec. Term, 1846. Dec. Term, 1846. Rands and wife v. Kendall. IN BANK. against the next estate of inheritance. The defendant is such owner by virtue of the conveyance from Coleman, and by no other means, for he does not claim under any legal conveyance by deed from Ferguson, the mortgagee. If there be any lien by judgment or mortgage, it may, under the statute, be set up in the suit for dower against the owner of the inheritance, and be made a charge upon the dower claim. It might be set up independent of any statute; but the express provision to that effect, in our statute, is useful here, as it assumes that the defendant may be the owner of the inheritance, notwithstanding the existence of a mortgage on his estate, and actually provides for the apportionment of the mortgage debts, upon claim of dower; Swan's Stat. 298, sec. 10. It has been said, that the female complainant has been "compelled," by her husband, to deny her "solemn deed." I am at a loss to conjecture upon what ground this remark has been made. There is no evidence, in my opinion, affording the least countenance to it. The deed from Coleman to Wright does not appear to have been understandingly executed by Mrs. Coleman, (now Mrs. Rand,) and we have no right to say that it was so executed and was her "solemn deed." I am clearly and decidedly of opinion that Adbeel Coleman was seized of an estate of inheritance during the coverture, and that his widow is entitled to dower. Robb v. Lessee of Irwin. JAMES ROBB VS. LESSEE OF WILLIAM AND JAMES F. Under the act of 1824, defining the duties of executors and administrators, an order for the sale of real estate is not void where a guardian ad litem was appointed for the infant defendants, who appeared and answered for them, although there is no proof that the infants were served with process. THIS case is brought before this Court by WRIT of Error to the Court of Common Pleas of HAMILTON County. The action was an action of ejectment, for certain premises described in the declaration. Robb, the tenant in possession, appeared in Court, entered into the common consent rule, and filed the plea of not guilty. At the November term, the case was submitted to the Court for determination, and upon hearing, the Court found the issue joined in favor of the then plaintiff, and entered a judgment accordingly. The then defendant, now plaintiff in error, thereupon tendered a bill of exceptions, which was signed and sealed by the Judges of the Court, and is made part of the record, which is as follows: "Be it remembered that, on the trial of this cause, the following facts were agreed upon, or proved, to-wit: "That William Irwin, the ancestor of the lessors of the plaintiff, died in Cincinnati, in the year 1824, seized of the several tracts of land, lying in sections 21 and 22, township 3, fractional range 2, designated, on the Lafayette Bank's plan of subdivision of the Clifton Farm, as lots 3, 4, 5, 6, and 7; except so much thereof, as lies in section 22, but without the lines of the tract known as the Irwin Mill tract; to which part of said lots the lessors of the plaintiff claim no title. "That said land descended to the heirs of said Irwin, namely, Archibald Irwin and Louisa Wiseman, formerly Louisa Irwin, IN BANK, Dec. Term, 1846. Robb v. Lessee of Irwin. Dec. Term, 1846. IN BANK. adults, and William Irwin, James F. Irwin, and William Irwin Sloo, minors. That William I. Sloo died intestate, and without issue, prior to the commencement of the suit, and that his interest and estate in said land, if any, descended to his coheirs, all of whom resided in Cincinnati. "That the said land was encumbered with divers mortgages, judgments, and debts, as was the whole estate of said William Irwin, deceased; and that letters of administration upon said estate were granted to Lewis Whiteman, husband of said Louisa Wiseman, and Thomas D. Carneal; and said administrators were duly qualified according to law. "That William Irwin, one of the lessors of the plaintiff, was born on the 30th of January, 1806, and James Irwin, the other lessor, was born in April, 1808; and that Samuel Findlay, appointed guardian ad litem, as appears by the record hereinafter set out, was first cousin to said lessors of the plaintiff, and intimate in their family. "That one hundred and twenty acres of land in section 21, and eighty acres of land in section 22, embracing the whole of the land in controversy, were conveyed to Nicholas Longworth, by said Lewis Wiseman and Thomas D. Carneal, administrators as aforesaid, by several deeds, one dated 12th Nov. 1830, the other dated 23d April, 1834; which deeds were duly executed and acknowledged, and were valid and sufficient, provided the said administrators had authority to sell and convey said lands. "That the title of said Longworth to the land in controversy, being part of said tracts conveyed to him by said administrators, had come to and was vested in said defendant, James Robb, who was in possession thereof, through divers intermediate conveyances. "To establish the authority of said administrators to sell and convey said lands, the defendant offered to give in evidence a record of the Court of Common Pleas, Hamilton county, Ohio. And it was admitted that the statement or certificate of the clerk attached to said record, was true and sufficient; but the |