If Henry had executed the mortgage to Crandell, and he at the same time assigned it to Maria V. D., and received the $2,000 from her, or from Henry, he having borrowed it of her, no question would have been made. Wherein does the transaction before me differ from that mode, in any matter of substance?
If in fact the money were paid by Maria to Henry, and by Henry to Crandell, it would make no difference in the result. It was all done in pursuance of the previous agreement. The loan and purchase were parts of the same transaction. Without the one, the other would not have been made, and they were consummated together.
The cases already cited show the uniform application of the principle of American law, which excludes dower, as against a mortgage given for the purchase money, to the vendor. The two following go the whole length of the case under consideration.
In Clark v. Munroe, 14 Mass. 351, one Andrews conveyed the premises to W. Clark, who at the same time mortgaged them to one Winthrop. The consideration of the deed from Andrews to W. Clark was the property of Winthrop, and the mortgage was given to him in pursuance of a previous agreement between the parties. The court held that the wife of W. Clark was not entitled to dower, and that the case was no different from what it would have been had the mortgage been made to Andrews instead of Winthrop.
In M'Cauley v. Grimes, 2 Gill & Johns. 318, Charles M'Cauley held a large tract of land derived from his father, considerably beyond his just share of his father's estate. In arranging and dividing the estate, it was agreed by all the parties, that Charles should convey the land to his brother Hugh, and Hugh, in consideration thereof, should pay to his brothers and sisters certain stipulated sums, and to secure the payment should execute a mortgage of the land to them, when he received it from Charles. Those sums, it was agreed, should be received as their respective portions of their father's estate. Charles accordingly executed the deed to Hugh, and at the same time Hugh executed the mortgage and his bonds to the other brothers and sisters. The Court of Appeals, in an opinion reviewing the American cases, decided that Hugh's widow was not entitled to dower against the mortgage.
I am entirely satisfied that by the law as established in this State, a widow is not entitled to dower in land conveyed to her husband during coverture, which he mortgaged to secure the purchase money, whether the mortgage were given to the grantor of the land or to a third person; and that in such case she is only dowable of the equity of redemption. Here the mortgage in question was given for the purchase money, at the same time that the land was conveyed to the husband, in pursuance of a previous arrangement. The widow, Magdalen Van Dyck, therefore takes her dower in the farm subject to the mortgage. See Card v. Bird, 10 Paige, 426, decided November 21, 1843. It follows that she was an interested witness, and her testimony, as it is now presented in the cause, would be excluded, if the cause were to be determined upon the merits.1
(c.) Death of husband.2
2 For "a resume of legislation and judicial decisions in this state and in England upon the subject of property rights, as affected by civil death, see Avery v. Everett, no N. Y. 317. In some States divorce make dower consummate. For this and some other peculiarities, see Stimson's Am. Stat. Law, §§ 6251 A., 3204. - Ed.
(3.) In What Estates and Lands a Widow May Have Dower. (a.) In general - in estates of inheritance.1
33 Connecticut, 314. - 1866. [Reported herein at p. 8.]2
1 OHIO State, 350. - 1853 .
[Reported herein at p. 14.]
(b.) As to estates of inheritance in expectancy.
23 New York, 331. - 1861.
[Reported herein at p. 658.]
9 (c.) In the case of determinable estates.
Pennsylvania State, 190. - 1848.
Devise by Sarah Evans to her two sons, George and Oliver, "and to their heirs and assigns, share and share alike; but should either of my sons die without leaving lawful issue, living at the time of his death, then the estate of such son, so dying without issue, shall vest in the surviving brother and his heirs forever.'' Oliver died without issue and the widow brings suit for dower in the lands owned by him in his lifetime. She succeeded in the court below.
GIbson, C. J. - Notwithstanding what the conveyancers and text-writers have said about the difficulty presented to us, not one of them has hinted at the true solution of it, except Mr. Preston. All agree that where the husband's fee is determined by recovery, condition, or collateral limitation, the wife's dower determines with it.
1 See N. Y. R. P. L. §§ 170-175. For "widows quarantine,'' see § 184 N. Y. R. P. L. Dower has been modified or abolished in many States. In some dower can be had only in lands of which the husband died seised. - Ed.
2 See however ch. 121, §§ 1 and 2 Mass. Pub. Stat. 1882-1887, transcribed infra, p. , under "Leaseholds." - Ed.
But why a collateral limitation, rather than by any other limitation of the estate, which extinguishes the husband's fee, of which the dower is but an appendage? I have a deferential respect for the opinions of Mr. Butler, who was, perhaps, the best conveyancer of his day; but I cannot apprehend the reason of his distinction in the note to Co. Litt. 241 a, between a fee limited to continue to a particular period at its creation, which curtesy or dower may survive, and devise of a fee simple, or a fee tail absolute or conditional, which, by subsequent words, is made determinable upon some particular event, at the happening of which, curtesy or dower will also cease. In Doe v. Hutton, Lord Alvanly spoke doubtingly of it, and, without absolutely dissenting from it, refused to give it his approbation. The system of estates at the common law is a complicated and an artificial one; but still it is a system complete in all its parts, and consistent with technical reason. But how to reconcile to any system of reason, technical or natural, the existence of a derivative estate, after the extinction of that from which it was derived, was for him to show; and he has not done it. He drew his instances from statutory estates, whose limitations have been moulded more benignly; and though he affirms that a wife might have been endowed of an extinct conditional fee before the statute de dam's, he gives no precedent for it. The case of a tenant in tail, says Mr. Preston in his abstracts of Title, vol. 3, 372, " is an exception arising from an equitable construction of the statute de donis; and the cases of dower of estates determinable by executory devise and springing use, owe their existence to the circumstance that these limitations are not governed by common-law principles." The mounting of a fee on a fee by executory devise, is proof of that. This very satisfactory solution of the doubt was glanced at, but not developed, in Buck-worth v. Thirkell. Before the statute of wills, there was no executory devise; and before the statute of uses, there was no springing use. Like estates tail, which were created by the statute de donis, and of which there is constantly dower, though tenant in tail claims per ferman doni, it was the benign temper of the judges who moulded the limitations of the estates introduced by them, whether original or derivative, so as to relax the severer principles of the common law; and among other things, to preserve curtesy and dower from being barred by determinations of the original estate, which could not be prevented. Sammes and Payne's Case, 1 Leo, 167, is an example of this temper, in the case of a springing use. A mother covenanted to stand seised to the use of her elder daughter, on condition that she would pay £100 to her other daughter, within a year after she should attain the age of eighteen; and if the elder should fail in payment, or die without issue before the day of payment, then to the use of the other daughter in tail. The mother died; the elder took husband, had issue, and died without issue before the day of payment; and it was adjudged that the husband should be tenant by the curtesy. Flavell v. Ventrice, 1 Roll. Abr. 676, was also the case of a springing use; in which, however, the court was divided. That two of the judges had not embraced the new faith at that day, is not surprising; but that Lord Eldon should have inclined to think as he did, in Maundrell v. Maundrell, 10 Ves. 263, that a husband might bar his wife's dower by executing a power of appointment, is more remarkable. He was still groping after a fancied distinction between a collateral limitation and a limitation of the estate which, if it exists, has nothing to do with an estate conveyed to uses. It may be safely said, that Buckworth v. Thirkell, Goodenough v. Goodenough, and Moody v. King, had a solid foundation in the interpretation of the statutes which sustained the estate from which the curtesy or dower was derived. Lord Alvanly is reported to have said, in Doe v. Hutton, 3 B. & P. 653, that Buckworth v. Thirkell made a good deal of noise in the profession at the time it was decided - a remark which was properly disposed of by Chief Justice Best, in Moody v. King. "Whatever conveyancers might have thought of the case," said he, "when it was first decided, they have since considered it as having settled the law; and it would be productive of much confusion if we were to unsettle it again." Including the decision then made, we have three cases in point, without an antagonistic case in all the books; and if to overturn them for the sake of a technical principle would have bred much confusion then, it would breed more confusion now. The English courts have gone upon a liberal principle, and we are bound to follow them.