At common law a widow was not entitled to dower in any equitable interest of her husband (I), but this rule was changed in England by the Dower Act, 1833, adopted in Upper Canada in 1834 by the statute 4 W. 4, c. 1, ss. 13, 14 and 15. The present provision in Ontario is contained in the Dower Act, R.S.O. 1914, c. 70, s. 4, as follows:

4. Where a husband dies beneficially entitled to any land for an interest which does not entitle his widow to dower at common law, and such interest, whether wholly equitable or partly legal and partly equitable, is, or is equal to an estate of inheritance in possession, (other than an estate in joint tenancy), his widow shall be entitled to dower out of such land.

(k) Leitch v. McLellan, 1883, 2 O.R. 587. (l) See Sec. 171, supra.

Where a woman is entitled to dower at common law she is so entitled whether her husband aliens the land before his death or not, but under s. 4 of the Dower Act the widow is not entitled to dower in equitable estates unless her husband dies beneficially entitled thereto. Thus a person equitably entitled to lands, who had not paid his purchase money or obtained a conveyance, created a mortgage thereon containing a power of sale in default of payment. The power of sale was exercised after the death of the mortgagor. Afterwards the widow of the mortgagor claimed dower, but it was held that dower attaches only to such equitable estates as the husband dies seised of; and that the sale when made had relation to the time of creating the power, thereby overreaching the title to dower (m).

The same principle was applicable in a case where the husband was at one time seised and subsequently made a mortgage in which the wife joined to bar her dower. The wife was in such case entitled to dower only if the husband died beneficially entitled to the equity of redemption, and the husband might defeat the claim to dower by conveying away the equity or mortgaging it in his lifetime without his wife's concurrence (n).

Sec. 173. Dower in equity of redemption since 11th March, 1879. Since the 11th of March, 1879, in order to determine whether dower attaches at all, it is necessary to distinguish between the case of a husband acquiring land already subject to mortgage and the case of his acquiring the legal estate and subsequently making a mortgage of it. If he acquires merely the equity of redemption, or if at the time of his marriage he has merely the equity of redemption, the case is governed by s. 4 of the Dower Act (o), the widow has no claim to dower unless the husband dies beneficially entitled, and the husband is able to defeat her claim by conveying away his interest in his lifetime (p).

(m) Smith v. Smith, 1852, 3 Gr. 451.

(n) Moffatt v. Thompson, 1851, 3 Gr. 1ll; Re Robertson, Robertson v. Robertson, 1878, 25 Gr. 276, at p. 280, and, on appeal, 25 Gr. 486, at pp. 488, 500; Fleury v. Pringle, 1878, 26 Gr. 67, at p. 68; Anderson v. Elgie, 1903, 6 O.L.R. 147. The contrary had been held in Forrest v. Laycock, 1871, 18 Gr. 611. As to the quantum of dower,, see Sec. 174, infra.

A purchaser of land subject to mortgage paid off the mortgage and procured a discharge in favour of the mortgagor, and on the same day obtained a conveyance from him, giving back a mortgage, with bar of dower, for the balance of the purchase money. The instruments were registered in the order mentioned. It was held that the wife of the purchaser was not entitled to dower out of a surplus arising on a sale under a subsequent incumbrance, her husband never having been momentarily seised of the legal estate in the land (q).

In another case the plaintiff had joined in a mortgage with her husband to bar dower, and her husband had afterwards assigned his equity of redemption to an- assignee for the benefit of creditors, and the mortgagees were taking proceedings to sell. The plaintiff claimed a declaration that she was entitled to an inchoate right of dower and to have a portion of any surplus on such sale set apart to answer her dower, when it should arise on the death of her husband. The declaration was refused, it being held that what was asked was a declaration as to a claim which might be made by another or others under circumstances which might or might not happen (r).

On the other hand, in the case where a husband has at one time the legal estate and it is converted into an equitable interest by a mortgage made by him in which his wife joins to bar her dower, a new provision was enacted in Ontario by the statute 42 V. c. 22, s. 1, applicable to mortgages made since the 11th day of March, 1879 (s). This provision is now contained in the Dower Act, R.S.O. 1914, c. 70, s. 10, sub-s. 1, as follows:

(o) See Sec. 172, supra.

(p) Gardner v. Brown, 1890, 19 O.R. 202; Fitzgerald v. Fitzgerald, 1903, 5 O.L.R. 279; Brown v. Brown, 1904, 8 O.L.R. 332.

(q) Re Luckhardt, 1898, 29 O.R. 111. (r) Bunnell v. Gordon, 1890, 20 O.R. 281.

10.- (1) No bar of dower contained in any mortgage or other instrument intended to have the effect of a mortgage or other security upon land shall operate to bar such dower to any greater extent than shall be necessary to give full effect to the rights of the mortgagee or grantee under such instrument (t).

Prior to this enactment, if a married woman joined with her husband in a mortgage to bar her dower, she was not entitled to dower in the equitable estate which remained in her husband after the mortgage, unless he died beneficially entitled thereto; and the husband might defeat the claim to dower by a transfer in his lifetime of his equitable estate (u).

The effect of the enactment of 1879 is that a married woman is entitled to dower out of an equity of redemption in land, whether or not her husband dies seised of it, where such an equity has arisen by his having executed a mortgage of the legal estate in which she has joined to bar her dower.

"Before the passing of the Act 42 Vict. c. 22 a married woman was entitled to dower out of an equitable estate, only when the husband died seised of it. Since the passing of that act, she is entitled to dower out of an equitable estate regardless of the husband's dying seised of it, when the equitable estate comes into existence by the husband, being owner of the land, executing a mortgage upon it, in which the wife joins to bar dower. The husband then has the equity of redemption, an equitable estate in the land of which, before the execution of such mortgage, he was the owner. This is the equitable estate out of which dower seems to be given by that statute" (v).

(s) Martindale v. Clarkson, 1880, 6 O.A.R. 1. As to the other provisions of the statute of 1879, see Sec. 174.

(t) As to the question whether the wife is entitled to redeem and whether she is a proper or necessary party to an action for foreclosure or sale, see chapter 24, Action for Foreclosure or Sale, Sec. 234.

(u) See Sec. 172, supra.

After some conflict of opinion it was decided that where a wife has joined in a mortgage to bar her dower her husband cannot defeat her right to dower in the equity of redemption by conveying away the equity without her concurrence (w).

"Section 5 [now s. 10] appears to settle conclusively in favour of the wife the question as to the right of the husband to convey away, without his wife's concurrence but free from her dower, the equitable estate remaining in him after a mortgage in which she had joined; because,to hold otherwise would be to hold that the bar of dower in the mortgage operated not only to give full effect to the right of the mortgagee under the mortgage, but also enabled the husband to deal with the equity left in him to the prejudice of his wife's dower in it; and this would be contrary to the express provision in the section. An equity of redemption created in this way, that is, by a mortgage of the husband's legal estate, the wife joining to bar the dower is, therefore, under section 5 [now s. 10] an exception to the general rule contained in section 1 [now s. 4] of the same Act which gives a wife dower only in those equitable estates of which her husband dies seised" (x).

Where a widow has not joined in the first mortgage to bar her dower, but joins in the second mortgage for that purpose, and the second mortgagee obtains priority over the first by prior registration, the widow is entitled to the surplus arising from a sale under the second mortgage in priority to the first mortgagee (y).

It is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 47, as follows:

47. Where registered land is transferred subject to a charge, or where the registered owner of land which is subject to a charge subsequently marries, the wife of the transferee or owner shall have the same rights in respect of dower as she would have had if the legal estate had been transferred by an ordinary mortgage and no others.

(v) Re Luckhardt, 1898, 29 O.R. Ill, Ferguson J., at p. 117.

(w) Re Croskery, 1888, 16 O.R. 207; Pratt v. Bunnell, 1891, 21 O.R. 1; Gemmill v. Nelligan, 1895, 26 O.R. 307; Standard Realty Co. v. Nicholson, 1911, 24 O.L.R. 46, at pp. 51. 52. As to the quantum of dower, see Sec. 174.

(x) Pratt v. Bunnell, 1891, 21 O.R. 1, Street J., at p. 6. (y) Gray v. Coughlin, 1891, 18 Can. S.C.R. 553, reversing Mac-lennan v. Gray, 1889, 16 O.A.R. 224.