McCabe v. Swap , 96 Mass. 188 ( 1867 )

Wells, J.

The tenant resists the claim of dower by setting-up a mortgage, in which the demandant released dower, and which was assigned to Bellows a few days after his deed to the tenant.

Assuming that the tenant, under her deed of quitclaim and release from Bellows, is entitled to avail herself of all his rights, although after acquired, the questions arise, 1st, Whether the writ of dower is barred by this mortgage title; if not, then 2dly, Whether the demandant is to have dower in the equity only, or in the whole estate.

The decisions since the adoption, in the Revised Statutes, oí the provisions contained in the General Statutes, c. 90, § 2, establish these propositions:

First. When a purchaser pays off a mortgage, to which the right of dower would be subject, merely to clear the estate of the incumbrance, and not by virtue of any obligation to pay the mortgage debt, and takes an assignment, or a conveyance of Ms interests from the mortgagee, he may stand on the mortgage title, if he please, and then no dower can be assigned without payment of the whole mortgage debt by the demandant. Strong v. Converse, 8 Allen, 557. McCabe v. Bellows, 7 Gray, 148.

Second. If, in such case, the mortgage be discharged, then he will be held to have redeemed, and the widow will take her dower in the equity, or by contribution, as she may elect, under Gen. Sts. c. 90, § 2. Newton v. Cook, 4 Gray, 46.

Third. But if the mortgage debt be paid by the debtor, or from his property, or in Ms behalf, then the payment will be treated as a satisfaction and discharge of the mortgage, and the widow will be remitted to her full right of dower. Wedge v. Moore, 6 Cush. 8.

Fourth. The payment will be held to be made in behalf of the debtor, when there is an obligation imposed by the grantor upon the purchaser to assume and pay the debt as his own; or when the grantor furnishes the means for the payment; as where, by the terms of the conveyance, the entire estate is sold, and the seller leaves a sufficient part of the purchase money in the hands of the grantee for the purpose. Brown v. Lapham, 3 Cush. 551. In such cases, if the purchaser take an assignment of the mortgage to himself, he will not be allowed to set it up,, but the legal title thus acqmred will be held to merge in the' equity. Bolton v. Ballard, 13 Mass. 227. Snow v. Stevens, 15 Mass. 278.

It is said that “ mergers are odious in equity.” Gibson v. Crehore, 3 Pick. 475-482. It is undoubtedly so whenever injustice will be worked thereby. But when a party, for the purpose of defeating a meritorious right in another, sets up, as a subsisting title, a mortgage which it was Ms duty to pay, equity is equally ready to manifest its aversion to such an attempt; and we think that both law and equity coincide in declarmg against it. This we understand to be the real doctrine of the proposition in Gibson v. Crehore, which has since been repeatedly quoted and approved, viz., that an assignment “shall or shall not operate as an extinguishment of the mortgage, according as the interest of the party taking this assignment may be, and according to the real intent of the parties.” It “does not so much depend upon the form of words used, as upon the relations subsisting between the parties.” Brown v. Lapham, 3 Cush. 554. Accordingly an assignment in form is held to be an extinguishment, when the justice of the case requires it. Wade v. Howard, 6 Pick. 492.

In this case, the deed from McCabe to Bellows expressly stipulates that Bellows “assumes and agrees to pay” the mortgage “as a part of the consideration of this deed; and said Bellows agrees to pay the amount now due on said mortgage, and save said McCabe harmless by reason of the same.” The acceptance of this deed made the amount due on the mortgage the debt of Bellows, which McCabe and his representatives could have compelled him to pay. Pike v. Brown, 7 Cush. 133. Braman v. Dowse, 12 Cush. 227. Bellows, by paying the mortgage debt according to his obligation, could have no interest nor intent, which the law would favor or recognize, to set it up against his grantor or any one standing upon his right.

The testimony of Hildreth, admitted de bene, shows an agreement between himself and Bellows, by which he was to advance the money to enable Bellows to procure an assignment of the mortgage to Hildreth, “to cut off this claim of dower.” So far as this testimony was offered to prove an intent to preserve the mortgage title outstanding against the demandant, it is incompetent, because, as already shown, the law will not permit Bellows to carry such an intent into effect. It cannot be allowed to contradict the writing, which shows an assignment to Bellows. And although it might establish a trust in Bellows, if he could hold the assignment as a valid title, it cannot do so against the countervailing equities which require that it should be extinguished.

The testimony of Bellows is in some respects contradictory to that of Hildreth, in relation to the transaction of the purchase of the mortgage from Seavy; it is contradictory to his deed from McCabe in respect to the mortgage debt forming part of the consideration given for the land; and contradictory, one part with another, in itself; so that it is difficult to say what it does tend to prove. But it does not seem to raise any questions other than those already disposed of. It does tend to show, however, apparently, that in his purchase from McCabe, the incumbrance of the right of dower was allowed for in the consideration ; so that it strengthens the equity of the conclusion to which we arrive, which is, that the demandant is entitled to recover her full dower in the premises. The case must accordingly be sent to an assessor to ascertain and report the amount to which she is entitled as damages for the detention thereof.

As a result of this conclusion the suit in equity, argued with this, Me dale v. Bellows, must be dismissed, as the plaintiff has her remedy at law.