This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In order that the widow have dower, the husband's ownership or "seisin" need not have continued for any particular time, it being sufficient that it was but momentary, the title passing out of him immediately after its acquisition.58
It is in connection with the question of the duration of the seisin that consideration is usually given to a class of cases in which land is acquired and disposed of by separate instruments, which, however, constitute together but one transaction, and in such cases the title of the husband, frequently termed "transitory seisin," is not considered to be of such a character as to support dower, as against the rights of those in favor of whom a disposition is thus simultaneously made by the husband.59 In such cases, the husband is considered not to acquire a beneficial interest as against the person in favor of whom rights are created, but to be in effect a mere "conduit of title."60
57. Post Sec. 221.
58. McCauley v. Grimes, 2 Gill & J. (Md.) 318, 20 Am. Dec. 434; Stanwood v. Dunning, 14 Me. 290; Holbrook v. Finney, 4 Mass. 566, 3 Am. Dec. 243; Griggs v. Smith. 12 N. J. Law, 22; Sutherland v. Sutherland, 69 111. 481; Douglass v. Dickson, 11 Rich. (S. C.) 417. In Broughton v. Randall, Cro. Eliz. 502, a case often referred to by the text writers, where a father and son, who were joint tenants, were hanged at the same time, and the son appeared to struggle longer than the father, it was held that he was seised, after his father's death, for such a period as to entitle his widow to dower.
59. 2 Blackst. Comm. 132; 1 Scribner, Dower, 271; 4 Kent. Comm. 38; Amcotts v. Catherich, Cro. Jac. 615; Hugunin v. Cochrane, 51 111. 302, 2 Am. Rep. 303; Johnson v. Plume, 77 Ind. 166; Stanwood v. Dunning, 14 Me. 290; Holbrook v. Finney, 4 Mass. 566, 3 Am. Dec. 243; Fontaine v. Boatmen's Sav. Inst., 57 Mo. 552; Moore v. Esty, 5 N. H. 479; Adams v. Hill, 29 N. H. 202.
60. See McCauley v. Grimes, 2 Gill & J. (Md.) 318, 20 Am. Dec.
The most common instance of the application, or asserted application, of this principle, is seen in the cases in which a purchaser of property, on receiving a deed thereof, gives to his vendor a "purchase money mortgage," as it is called, to secure the payment of the whole or a part of the purchase price. In such case, the deed and mortgage are considered parts of one transaction, and the purchaser does not have such a title as will give a right of dower to his wife as against the mortgagee, though as against all others she is entitled to dower.61 In some states there is a statutory provision confirmatory of this rule in favor of the holder of a purchase-money mortgage.62 A like principle has been applied when the purchaser of the property, instead of giving a purchase-money mortgage to the vendor, gives a mortgage, in pursuance of a prior agree434; Holbrook v. Finney, 4 Mass. 566, S Am. Dec. 243; Douglass v. Dickson, 11 Rich. Law (S. C.) 417; 2 Blackst. Comm. 132, Coleridge's notes.
61. 4 Kent. Comm. 39; 1 Scrib-ner, Dower, 273; Mayburry v. Brien, 15 Pet. (U. S.) 21, 39, 10 L Ed. 646; Eslava v. Lepetre. 21 Ala. 504, 56 Am. Dec. 266: Smith v. Stanley, 37 Me. 11, 58 Am. Dec. 771; Glenn v. Clark, 53 Md. 580; Stowe v. Tifft, 15 Johns. (N. Y.) 458; Sheldon v. Hoffna-gle, 51 Hun. (N. Y.) 878; Nichols v. French. 83 Ohio St. 162, 93 N. E. 897; Hurst v. Dulaney, 87 Va. 444, 12 S. E. 800.
In order to constitute the conveyance by the vendor and the mortgage by the vendee, or any other two instruments, parts of the same transaction, within the rule, they must, it has been said, be delivered at approximately the same time. Rawlings v. Lowndes, 34 Md. 639; Fontaine v. Boatmen's Sav. Inst., 57 Mo. 552; Seek-right v. Moore, 4 Leigh (Va.) 30, 24 Am. Dec. 704; But in Wheat-ley's Heirs v. Calhoun, 12 Leigh (Va.) 269, 37 Am. Dec. 654, it was considered sufficient that the making of the mortgage was arranged for at the time of the execution of the conveyance. And occasionally the vendor's priority has been regarded as existing, although the mortgage was delivered at a considerable interval after the delivery of the conveyance, on the theory that there was a vendor's lien in his favor which was merely continued by the mortgage. Boos v. Ewing, 17 Ohio 500; Boorum v. Tucker, 51 N. J. Eq. 135.
62. 1 Stimson, Am. St. Law. Sec. 3213(B); 1 Sharswood & B. Lead. Cas. Real Prop. 327.
Sec. 2ll ] incut, and as a part of the same transaction, to a third person, who furnishes the purchase money, and the right of dower is subordinated to the mortgage so given.63 sence of a purchase-money mortgage.67
Estates Arising From Marriage.
While the doctrine of transitory seisin may serve to explain the priority of the purchase money mortgage in those states in which a mortgage involves a transfer of the legal title to the land, it does not appear to be applicable in any jurisdiction in which the lien theory of a mortgage is adopted,64 since there the seisin must he regarded as passing in the ordinary case, to the purchaser, and as continuing in him, in spite of the creation of a mortgage to secure the purchase money. In such a jurisdiction the priority accorded the mortgage would appear to he based on an equity in favor of the vendor to have the land regarded primarily as a fund from which to pay the purchase price,65 and such a view finds confirmation in decisions giving a like priority, as against the dower claim, to the vendor's lien for the price,66 which is recognized in many states in the ah63. Thomas v. Hanson, 44 Iowa, 651; Smith v. Stanley, 37 Me. 11, 58 Am. Dec. 771; Glenn v. Clark, 53 Md. 580; King v. Stetson, 11 Allen (Mass.) 407; Adams v. Hill, 29 N. H. 202; Kittle v. Van Dyck, 1 Sandf. Ch. (N. Y.) 76; Cunningham v. Knight, 1 Barb. (N. Y.) 399; Bunting v. Jones, 78 N. C. 242; Roush v. Miller, 39 W. Va. 638, 20 S. E. 663; Jones v. Parker, 51 Wis. 218, 8 N. W. 124. Compare Smith v. McCarty, 119 Mass. 519; McClure v. Harris, 12 B. Mon. (Ky.) 261.
Likewise when, as the consideration for the purchase, it was agreed that the purchaser should raise money to pay a debt or debts of the vendor, and a mortgage was accordingly given for this purpose as of the same date as the conveyance, such mortgage was regarded as taking precedence of the dower right of the purchaser's wife. Butler v. Thornburgh, 141 Ind. 152, 40 N. E. 514; Groce v. Ponder, 63 S. C. 162, 41 S. E. 83; Coffman v. Coffman, 79 Va. 504.
64. Post. Sec. 600.
65. Pomeroy, Eq. Jur. Sec. 725.
66. 1 Scribner, Dower, 555; Brooks v. Woods, 40 Ala. 538; Thorn v. Ingram, 25 Ark. 52; Hu-gunin v. Cochrane, 51 111. 302, 2 Am. Rep. 303; Price v. Hobbs, 47 Md. 359; Cocke v. Bailey, 42 Miss. 81; Boorum v. Tucker, 51 N. J. Eq. 135, 26 Atl. 456; Unger v. Leiter, 32 Ohio St. 210. See Bothe v. Gleason, 126 Ark, 313, 190 S. W. 562.