Gammon v. Freeman , 31 Me. 243 ( 1850 )

Shepley, C. J.

The demandant claims dower in a farm formerly owned by John Reed. Her late husband, Enoch Gammon, was indebted to Underwood and Greenough for lands, which he had agreed to purchase of them. He appears to have made a bargain to sell three thousand acres of those lands to Reed, to be paid for by a conveyance of his farm. To enable Gammon to obtain a conveyance from Underwood and Greenough to Reed, it was agreed, that his farm should be conveyed to Gammon and be by him conveyed in mortgage to Underwood and Greenough. These conveyances were accordingly made and delivered at the same time, but the mortgage was ante-dated.

To make them parts of one and the same transaction it is not necessary, that the deeds should bear the same date. Harrison v. The Trustees of Philips’ Academy, 12 Mass. 456. Nor is it necessary, that the same persons should be grantors and grantees. It will be sufficient that the deeds are delivered at the same time to accomplish the agreed purpose. Clark v. Munroe, 14 Mass. 351; Gilliam v. Moore, 4 Leigh. 30.

The result of the authorities appears to be, that when the title to an estate is conveyed to a person as a mere instrument to make a conveyance of it to another without taking any beneficial interest in it, and he does accordingly transfer it at the time, when he receives it, he does not become so seized that his widow will be entitled to dower. That when he acquires a title beneficial to himself, although he may continue to be the owner for a time ever so short, he will be so seized, that his widow will be entitled to dower. The interest, which he may retain as mortgager, if the estate be forfeited and held by virtue of the mortgage, will not be such a beneficial interest, that his widow will be entitled to dower.

The counsel for the demandant alleges, that the mortgage was not made in this case to secure payment for the farm conveyed, but to pay a debt previously due to the mortgagees for other lands. It is true, that it was made to secure the payment due for other lands, but the other lands were used to make payment for the farm. The mortgage was therefore made to effect indirectly a payment for the farm. It became, in the hands of the mortagees, a substitute for the lands, which they conveyed to Reed as the consideration of his conveyance of the farm to Gammon, who does not appear to-have had more than an instantaneous seizin, as the mere instrument of conveyance to others without any beneficial interest in it.

It is-insisted, that the tenant is estopped to deny the seizin of the husband, as he holds the estate by a title derived from him. While he may not be permitted to deny, that the husband was seized, he may be permitted to show the character of that seizin, and that it was not such, that his widow would be entitled to dower. Moore v. Esty, 5 N. H. 479.

According to the agreement of the parties, a nonsuit is to be entered.

Horn — Howakd, J, having been of counsel, took no part in this decision.