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 .
By the making of a mortgage, as will be hereafter explained, in England and a number of states in this country, the legal title is transferred, and thereafter an equitable title only, usually known as the "equity of redemption," remains in the mortgagor. In this equity of redemption, as in other equitable interests, the English courts refused to recognize any right of dower.25 But a different view has generally been taken by the courts of this country, it being held that, though land of the husband is subject to a mortgage which takes precedence of dower, the wife is entitled to dower therein as against all persons except the owner of the mortgage.26 In a other states, however, a contrary view has been adopted, on the theory that the wife's joinder in the mortgage for the purpose of releasing her inchoate dower right cannot properly he regarded as a mortgage by her of her separate property.35
111. 656, 13 N. E. 245; Johnston v. Jickling, 141 Iowa, 444, 119 S. W. 746; Bartlett v. Gouge, 5 B. Mon. (Ky.) 152; Miller v. Miller, 148 Mo. 113, 49 S. W. 852; Hopkinson v. Dumas, 42 N. H. 296; Ocean Beach Ass'n v. Brinley, 34 N. J. Eq. 438; Waller v. Waller's Adm'r, 33 Gratt. (Va.) 83.
23. Robison v. Codman, 1 Sumn. 121, Fed. Cas. No. 11,970; Cockril: v. Armstrong, 31 Ark. 580; Coster v. Clarke, 3 Edw. Ch. (N. Y.) 428; Brown v. Cave, 23 S. C. 251.
24. 4 Kent. Comm. 43; Foster v. Dwinel, 49 Me. 44; Crittendon v. Johnson, 11 Ark. 94; Reed v. Shepley, 6 Vt. 602.
25. Park, Dower, 137; Stelle v. Carroll, 12 Pet. (U. S.) 201. 9 L. Ed 1056; Mayburry v. Brien, 15 Pet. (U. S.) 21, 38, 10 L. Ed. 646.
26. 4 Kent, Comm. 44; Cox v. Garst, 105 111. 342; Manning v. Laboree, 33 Me. 343; McCabe v. Bellows, 7 Gray (Mass.) 148, 66 Am. Dec. 467; Burrall v. Clark, 61 Mich.' 608, 28 N. W. 739; Jones v. Bragg, 33 Mo. 337, 84 Am. Dec. 49; Wade v. Miller, 32 N. J. L. 296; Hitchcock v. Harrington. 6 Johns. (N. Y.) 290, 5 Am. Dec. 229; Van Duyne v. Thayre, 11 Wend. (N. Y.) 234, 19 Wend. 162, Daniel v. Leitch, 13 Gratt. (Va.)
If, when land is subject to a mortgage which lakes precedence of dower, the mortgage debt is paid by the husband before his death, or by his personal representative after his death, the mortgage is extinguished and the widow is entitled to dower as if the mortgage had never existed.28 In some jurisdictions the widow has the right to demand that the mortgage debt, if it can be regarded as the husband's own debt, be paid from out of the personal assets belonging to the husband's estate, in exoneration of the land and of the dower right therein,29 a doctrine which in other states has been repudiated:30
If the mortgage debt is paid by a purchaser from the husband as a part of the contract of purchase, it is as if it were paid by the husband, and the mortgage
Estate, 6 Mackey, D. C. 536; Harris v. Powers, 129 Ga. 74, 58 S. E. 1038. If the mortgage is made by the husband, and the wife does not join therein, as shown hereafter, her dower right takes pre cedence even of the mortgage. See post Sec. 222.
27. 1 Stimson's Am. St. Law, Sec.Sec. 3214, 3216 (A); Sharswood & B. Lead, Cas. Real Prop. 315; 1 Scribner, Dower, 472 et seq.
28. 1 Scribner, Dower, 550; Selb v. Montague, 102 111. 446; Wedge v. Moore, 6 Cush. (Mass.) 8; Atkinson v. Stewart, 46 Mo. 510: Norris v. Morrison, 45 N. H. 490; Ketchum v. St.Law. 28 Ohio St. 503; Peckham v. Hadwen, 8 R. I. 160.
And the mortgage debt is apparently to be regarded as paid by the husband within the rule when he conveys the land in satisfaction thereof to the mortgagee. Gainey v. Anderson, 87 S. C. 47,
31 L. R. A. (N. S.) 323, 68 S. E. 888
As to the protection of a purchaser at the executor's sale of the mortgage property, when the debt is paid from the proceeds of sale, see 17 Harv. Law Rev. at p. 267.
29. Boynton v. Sawyer, 35 Ala. 497; Shobe v. Brinson, 148 Ind. 2S5. 47 N. E. 625; Hays v. Cretin, L02 Md. 695, 4 L. R. A. (N. S.) 1039, 62 Atl. 1028; Campbell v. Campbell, 30 N. J. Eq. 415; Gore v. Townsend, 105 N. C. 228, 8 L. R, A. 443; 11 S. E. 160; Henagan v. Harllee, 10 Rich. Eq. (S. C.) 285; Kling v. Ballentine, 40 Ohio St. 391.
30. Pryor v. Davis. 109 Ala. 117, 19 So. 440; Hewitt v. Cox, 55 Ark. 225, 15 S. W. 1026, 17 S. W. 873; Gibson v. Crehore, 5 Pick. (.Mass.) 146; Hastings v. Stevens, 29 N. H. 564; Daniel v. Leitch, 13 Gratt. (Va.) 195.
R. P.-48 is extinguished as against the widow's dower claim, but it is otherwise if the purchaser voluntarily pays it, and the widow must, in such case, contribute her proportional part of the amount paid,31 and she must likewise so contribute, in most jurisdictions at least, when the mortgage. debt is paid by the heir.32
In two states the view has been adopted that a wife who, for the pupose of releasing dower,33 joins in a mortgage made by her husband to secure his debt, is in the position of a wife mortgaging her separate property for that purpose, and as consequently a surety for his debt, so that, in case the debt is paid, after the husband's death at least, by means of a sale of the mortgaged land and out of the proceeds thereof, she is entitled to claim from the surplus proceeds the full value of her dower, as if she had not joined in the mortgage.34 In
31. Selb v. Montague, 102 111. 446; Hatch v. Palmer, 58 Me. 271; McCabe v. Swap, 14 Allen (Mass.) 188, Strong v. Converse, 8 Allen (Mass.) 557, 85 Am. Dec. 732; Everson v. McMullen, 113 N. Y. 293, 4 L. R. A. 118, 10 Am. St. Rep. 445, 21 N. E. 52; Pollard v. Noyes, 60 N. H. 184; Carter v. Goodin, 3 Ohio St. 75; Danforth v. Smith, 23 Vt. 247; Hoy v. Varner, 100 Va. 600, 42 S. E. 690.
32. McMahon v. Russell, 17 Fla. 698; Selb v. Montague, 102 111., 446; Snyder v. Richey, 150 Iowa, 737, 130 N. W. 922; Richardson v. Skolfield, 45 Me. 386; Swain v. Perine, 5 Johns Ch. 482, 9 Am. Dec. 318; Hoy v. Varner, 100 Va. 600, 42 S. E. 690. In some states there are statutory provisions to this effect. See 1 Stimson's Am. St. Law Sec. 3216(P).
33. Post Sec. 224.
34. Gwathmey v. Pearce, 74 N. C. 398; Gore v. Townsend, 105 N. C. 228, 8 L. R. A. 443, 11 S. E. 160; Kling v. Ballentine, 40 Ohio, St. 391; Mandel v. McClave, 46 Ohio St. 407. Such a doctrine is obviously inapplicable when the priority of the mortgage is not by reason of the wife's joinder therein, as when it is a purchase money mortgage in which she fails to join. See In re Hays, 181 Fed. 674; Editorial note in 11 Col. Law Rev. Stat. p. 66. In Indiana the right of the widow to have the full value of her dower paid without any diminution by reason of the mortgage is based on the theory of the priority of dower over creditor's claims. See Sparrow v. Kelso, 92 Ind. 514; Shobe v. Brinson, 148 Ind. 285, 47 N. E. 625.
Sec. 217 ] garded as having commenced at the time of the husband's death, and consequently the heir has, as to the land assigned for dower, merely a reversion expectant upon the termination of the dower estate, and no estate of freehold in possession, from which dower can be assigned to his widow, in case he dies during the life of his ancestor's widow.41
Estates Arising From Marriage.
If no other person undertakes to pay the mortgage debt, to redeem from the mortgage, as it is expressed, the widow may do so, in order to protect her dower right.36