Hopkins v. Frey , 2 Gill 359 ( 1844 )

Magrtjder, J.,

delivered the opinion of this court.

The defendant in error, is the widow of John Frey, who died in the year 1832, and she filed this bill, in order to obtain a decree, directing dower to be assigned to her, in several tracts of land, and also, an account of the rents and profits of the same. The Chancellor having decreed, that she is entitled to dower, and to rents and profits, from the death of her husband, an appeal has been prayed, by some of the defendants, and it being here insisted, that in regard to the lands claimed by them, the widow has no title to dower. This is a question to be disposed of, before the claim to rents and profits can arise.

About the material facts, there is no controversy, and for the purpose of showing upon what grounds the claim to dower is maintained and resisted, the following statement is deemed to be sufficient.

In 1802, Frey, the husband, obtained title to the land, now in controversy in this court, and of which his widow seeks to be endowed, and executed a mortgage to secure the payment of the purchase money. In the succeeding year, (1803,) he married the defendant in error. In 1818, arbitrators, chosen ay the mortgagor and mortgagee, awarded, that the payment of the sum mentioned in the award, should entitle Frey to a good and sufficient release of the mortgaged premises. Afterwards, the mortgagees filed in Chancery their bill, in order to obtain a sale of the mortgaged premises, and Frey, relying upon the award, the bill was dismissed in 1823, and that decree was affirmed by the Court of Appeals in 1825.

In 1816, (before the award,) Frey mortgaged the equity of redemption to others, who afterwards filed a bill, and obtained a decree to sell the mortgaged premises, which were sold 15th July 1823, and from the purchasers at that sale, the plaintiffs in error, derive their title. Frey was, at the time of the sale, and for some years afterwards, alive.'

If the equity of redemption had not been mortgaged by Frey, the widow’s claim to dower could not be questioned. The award, in 1816, had ascertained, that at that time, a small balance was due, (when the debt was reduced to so small a sum, no where appears,) and the payment by him, of that sum, was necessary to entitle him to a re-conveyance of the mortgaged premises. But, before the dale of the award, Frey, as has been already stated, mortgaged the equity of redemption, and the widow now claims dower in the mortgaged premises, from those to whom the equity of redemption was sold, in the life time of Frey. Can such a claim be maintained in Chancery?

Dower, (Justice Story remarks,) is a mere legal right, and a court of equity, in assuming concurrent jurisdiction with courts of law, upon the subject professedly, acts upon the legal right, (for dower does not attach upon any equitable estate.) In some of our sister States, the wife is allowed dower in an equity of redemption. In England, the law is different. “A widow, (says Cruise, 2 vol. 9 sect. p. 151, Am. ed.,) is not allowed dower out of an equity of redemption of a mortgage in fee, upon the principle, that an equity of redemption is analagous to a trust estate.” See also, Dixon vs. Saville, and others, 1st Brown’s Ch. C., 326. Our State adheres to the English law, upon the subject of dower, except when, and so far as it may be changed by our legislature. In the case of Ford, and others, against Pliilpot, and others, decided in 1821, (see 5 Harr. Sf John. 312,) the court, in pronouncing its opinion, said, “no right of dower can arise, (and for this exception, no substantial reason can be given, and now no longer exists,) on the mortgagors’ interest.” The words, “and no longer exists,” evidently allude to the act of 1818, ch. 193, sec. 10, and the next enquiry is, does this law authorize the claim of dower in a case like this ?

It is a sufficient answer to this claim, when it is attempted to establish it by this act of Assembly, to say the law was passed after the execution of the mortgage. There is nothing in the words of the law, nor in any supposed design of those who enacted it, which would justify us in concluding, that an equitable estate, which had belonged to the husband, but had been mortgaged before the passage of the law, and sold in his life time, is an estate of which the husband’s widow could be endowed. Surely this would not be a sound construction of a law, which expressly refuses dower in an equitable interest, “if the same be devised by a will, made before the passage of this act,” and which, too, is careful to provide, that to entitle her to dower in any equitable interest, it must be “held by equitable title in the husband.”

The words, it is believed, are sufficiently explicit, to prevent the law from operating to the prejudice of the rights of any, but creditors, heirs, and the devisees in a will, made, after its passage.

Decree to be reversed, bill dismissed, (as far as it seeks relief against the plaintiff in error,) and with costs in this court, and the Court of Chancery.

decree reversed and bill dismissed.