McCauley v. Grimes , 2 G. & J. 318 ( 1830 )

Abciieb, J.

delivered the opinion of the Court.

The record presents in effect the same principle for adjudication, which has heretofore come before the Courts in several States of the Union. In Holbrook vs. Finney, 4 Massa. Rep. 566, it was decided that a conveyance in fee, and a conveyance by the grantee to the grantor by way of mortgage being considered as parts of the same transaction, did not give to the grantee such a seisin as entitled his wife to have dower in the granted premises. And in Clarke vs. Munroe, 14 Mass. 352, where the mortgage was made to a third person, at the same time with the deed to the mortgagor, the same determination was had; in each of those cases the deeds were executed in pursuance of a previous agreement between the parties. In South Carolina, the same doctrine had prevailed before, as will be seen by a reference to Bogie vs. Rutledge, 1 Bay, 312; this decision has been recognised, and approved in that State in a very recent decision, 'grustees of Frazier vs. Centre and Hall, 1 M'Cord, 279; these determinations have been followed in New York. In Stow vs. Tifft, 15 Johns. 458, the case in 4 Mass. 566, was cited and approved, and a judgment given in conformity with it; in the latter ease, however, no agreement was proved, further than could be inferred from the execution of the conveyance and mortgage, and the internal evidence they furnished. In Pennsylvania, too, the same doctrine prevails — in Reed vs. Morrison, 12 Sergeant and Rawle, 70, it was adjudged that as against the mortgagee for the purchase money, the widow had mo such seisin as would entitle her to dower. So far as we have examined the American cases, the decisions appear to be uniform against the widow’s right to dower, unless subject to the payment of the purchase money secured by mortgage — and Chancellor Kent, in his recent treatise on the law of real property, approves these determinations. 4 Kent's Com. 38, 39. The cases in Massachusetts and New York, proceed on the doctrine of instantaneous seisin. The deed and mortgage were looked upon as constituting but one contract, bearing the same date, and delivered at the same time; and that as no interval of time intervened, between the taking and rendering back the fee, the case might be assimilated to the conusee of a fine, whose wife would not be entitled to dower, because by the same fine the estate is rendered back to the conusor; it was there considered as merely in transitu, and not resting for an instant; the grant and render being one entire act. But perhaps there is no general rule in strictness, that in cases of instantaneous seisin the widow shall or shall not be entitled to dower ; this must depend as well upon the character of the seisin, as its duration; when a man has the seisin of an estate, though for an instant, beneficially for his own use, his widow shall be endowed; where the husband is the mere instrument for passing the estate, although there may be an instantaneous seisin, the widow shall not be endowed, t Thomas Coke, 665, 666, note G. Preston Est. 546. 2 Bac. Abr. 371; here the husband was*the -mere instrument to carry into effect the purposes of the grantor — he takes the fee,that he may instantaneously pass it out of hiiuto certain mortgagees who are the objects of the grantor’s 'bounty, and whom he designates as the persons to receive the purchase money; and it is not a portion of the lands by metes and bounds, or any undivided part of it, that he is thus the instrument for passing away, but it is the fee in the whole land; and it is done ex unoflatu, But it is supposed that he was beneficially seised for Ms own use; the situation in which the grantee stood could not, wo apprehend, bring him within the operation of this general rule; he was seized beneficially for the use of his brothers and sisters, and whether his interest was ultimately to be beneficial, was entirely contingent, and dependent upon the capacities of the estate to meet the claims of his brothers and sisters. This we apprehend is not the kind of beneficial interest, the seisin of which, to his own use, would entitle the wife to dower — he was not in fact within the words or spirit of the rule, for he was not seized beneficially for his own use, but for the combined, use of Mmsdf and others, and his interest, real or contingent, was not susceptible of any particular ascertainment, but was necessarily undefined, and was to be postponed until the gratifications of all the uses to which the lands were made subservient.

It is remarked by Kent, 4 Com. 38, 39, “That a transitory seisin for an instant, when the same act that gives the estate to the husband conveys it out of him, as in the case of the conusee of a fine, is not sufficient to give the wife dower; the same doctrine applies when the Irasband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person to secure the purchase money, in whole, or in part; dower cannot be claimed as against rights under that mortgage — the husband is not deemed sufficiently or beneficially seized by such an instantaneous passage of the fee, in and out of him, to entitle his wife to dower as against the mortgagee, and (he further remarks) this conclusion is agreeable to the manifest justice of the case.”

There is no case in the English books which militates against these doctrines, unless it should be the case of Nash vs. Preston, Cro. Ch. 191; but if the interpretation given to it by the Courts in Massachusetts and New York, that the re-demise was not made at the time of the deed of bargain and sale, be found to be correct, it will not interfere with the American cases. The justices to whom in that case the question of dower was referred, say it “ was intended they should have it re-demised immediately.” It is fair to infer from this declaration, that the re-demise was not executed at the same time with the deed of bargain and sale, and if it was not, it does not at all conflict with the American cases.

JUDGMENT REVERSED.