Smith v. McCarty , 119 Mass. 519 ( 1876 )

Morton, J.

It appears by the bill of exceptions that the land in which the demandant claims dower was conveyed to her husband by George Warren on November 30,1858, and that on the same day her husband mortgaged it to Elizabeth Dawson, to secure the payment of his note of one hundred dollars procured by him of her for the purpose of paying for this land. But this does not necessarily show that he had only an instantaneous seisin. It must be shown that, the deed to him and the mortgage by him were parts of one and the same transaction. Webster v. Campbell, 1 Allen, 313. Hazleton v. Lesure, 9 Allen, 24. King v. Stetson, 11 Allen, 407.

The presiding judge, who tried this case without a jury, may have found upon the evidence before him that the deed and mortgage were not parts of one act or transaction, and therefore that the seisin of the demandant’s husband was not instantaneous, in which case the demandant, as she did not sign the mortgage, is entitled to dower in the whole estate. Without considering the other point taken by the demandant, that the mortgage was paid and discharged, these exceptions cannot be sustained because the bill does not show any error of the court below in matter of law. Exceptions overruled