Smith v. Stanley , 37 Me. 11 ( 1854 )

Hathaway, J.

— If a grantee of land, at the time when he receives his deed, execute a mortgage of the same premises to his grantor, to secure the payment of the purchase money, he has but an instantaneous seizin, by virtue of which his wife does not acquire a right of dower; nor are her rights as to dower in such case any different, if the mortgage be made to a third person, who paid the consideration in pursuance of a previous arrangement between the parties. Clark v. Monroe, 14 Maine, 351; Stow v. Tift, 15 Johns. 458.

Nothing but payment in fact or the release of the mortgagee will discharge a mortgage. Crosby v. Chase, 17 Maine, 369.

When Stanley joined Jotham Smith, in the deed to William, of one half of the premises mortgaged to him, and released all his interest therein, the mortgage of that half was thereby discharged, and Jotham’s seizin thereof had effect by relation, from the time of the execution of the original deed from Eastman, and the demandant became dowable of that half of the land; but Stanley released only one half of the land mortgaged; he received no payment in fact of the debt secured by the mortgage of the other half, except by the land; and the result is that the demand-ant is entitled to judgment for her dower in one undivided half of the premises and no more.

Defaulted as agreed by the parlies.

Judgment for dower in one moiety.

Shepley, C. J., and Howard, Rice and Cutting, J. J., concurred.