Norris v. Morrison , 45 N.H. 490 ( 1864 )

Sargent, J.

The doctrine in this State in relation to dower, is well settled:

1. That a widow is entitled to dower in an equity of redemption in real estate of her late husband, against all persons except the mortgagee or those claiming under him.

2. She cannot be endowed as against the mortgagee, except by payment of the whole mortgage debt.

3. But, as against any one having an interest in the redemption, and who has actually redeemed the mortgage, she can be endowed upon payment of contribution.

4. If the administrator redeems the mortgage from assets of the estate, then the widow takes dower without contribution. Cass v. Martin, 6 N. H. 25; Robinson v. Bates, 3 Met. 40, and cases cited: Robinson v. Leavitt, 7 N. H. 102; Rossiter v. Cossitt, 15 N. H. 38; Hastings v. Stevens, 29 N. H. 564; Woods v. Wallace, 30 N. H. 384.

Similar principles are to be applied in the assignment of homestead; Norris v. Moulton, 34 N. H. 392, 399, where it is said: "The estafe is under the incumbrance of a mortgage given at the'time of the purchase to secure the payment of a part of the purchase money. By the provisions of sec. 5 of the homestead act, such lien remains unimpaired by reason of any right under the act. But, although the mortgage lien continues paramount to any homestead right, this constitutes no ground of objection to making assignment of the homestead. The right attaches in favor of the widow as against all persons except such as hold under the mortgage; the estate in this particular is to be treated as though it were free from the incumbrance.

The rights of the mortgagee will, of course, remain unaffected by the assignment. Its operation will be merely to give her the right to hold the homestead assigned to her until proceedings to enforce the paramount right under the mortgage. If the mortgage debt is discharged by the administrator, she then holds her homestead of the value of $500 free from the incumbrance, the appraisal being made as though the estate were unincumbered. If the debt is not paid by the administrator, she will have the right to redeem and hold the entire estate under the mortgage as assignee, until such amount be paid to her as, upon principles of law, others interested in the redemption of the mortgage may be bound to pay; whether that should be the entire mortgage debt or a proportionate part of the debt, it is unnecessary now to determine.”

But we see no reason why it may not properly be held to stand in this last respect the same as dower; that any party having an interest in the redemption may redeem the mortgage by paying the mortgagee the whole mortgage debt, and then others having also an interest in the redemption may hold that interest discharged of the mortgage by paying contribution.

In this case, the administrator did not redeem the mortgage with assets of the estate, and therefore the widow does not hold her homestead or dower free from contribution. The question 'is, whether she shall hold these rights now by making contribution, or whether she must pay up the whole of the mortgage debt.

As the case stood when the homestead was assigned to her, she could redeem by paying the whole mortgage debt, and stand as assignee of the mortgage until others interested should pay their legal proportion. Since then the equity of redemption has been sold, and the purchaser of the equity, if he had been some third person and not the mortgaged, would thereby have acquired an interest in the redemption, and he could have redeemed from the mortgage debt by paying the whole amount due to the mortgagee, and he would have stood as assignee of the mortgage until this plaintiff had paid him contribution; or, after the equity was sold, this plaintiff might have paid off the mortgage and stood as assignee of the same till the purchaser of the equity had paid her contribution.

We do not see that the defendant stands any differently in this case, upon the evidence, on account of having acted as counsel for the plaintiff in the assignment of her dower and homestead, so far as he thus acted, from what he would otherwise have stood. We cannot see that he is estopped to claim any right, which he might otherwise claim, by his having acted as her counsel in that behalf.

But what is the effect where the mortgagee buys in the equity of redemption, as in this case, and thus stands in the double capacity of mortgagee and owner of the equity ? Shall he be allowed to stand in these capacities separately, and to elect in which he wjll act at a given time, and act first in one capacity and then in the other as best suits his interests or his caprice? We have seen, that, when the owner of the equity purchases in the mortgage of the mortgagee, and thus unites the two titles, the widow is entitled to dower and homestead by paying contribution only. Shall the same rule apply, or a different one, where the same interests are united in the same person and where the only difference is, that he was the mortgagee first, in the one case, and afterwards purchased the equity, and, in the other case, he first had the equity and afterwards purchased the mortgage? We see no good reason for any distinction.

In fact that question has been settled in Woods v. Wallace, 30 N. H. 384. That case was precisely like this, except that there the defendant first bought the mortgage and the note secured by it, and had them assigned to him by the mortgagee while the mortgagor was alive. Afterwards the mortgagor died and the equity was sold and purchased in by the assignee of the mortgage, and the widow then claimed her dower, and it was held that the assignee of the mortgage under these circumstances stood precisely like the original mortgagee having all his interests and rights, and that neither the widow nor the purchaser of the equity, had he been some third person, could redeem the mortgage of such assignee, without paying the whole amount of the mortgage debt; but that, when such assignee purchased in the equity and thus united the two interests in himself, they became merged and united, and that in such case the widow was entitled to dower upon contribution. In principle, then, that case was precisely like the present, as the assignee of the mortgage in that case at the time of the death of the mortgagor, stood in all respects like the original mortgagee; and, unless the law of that case is to be overruled, this plaintiff is entitled to dower and homestead in the case before us, upon contributing her just share of the mortgage debt.

But the law of Woods v. Wallace seems to us to be consistent upon principle, as well as being in conformity with the other decisions in this State upon that subject. Woods, J., in delivering the opinion in that case, asks why the plaintiff should be driven to the idle ceremony of paying the whole mortgage, thereby giving the defendant the right to regain his interest in the premises by refunding to her his share; and it was held that such a course was not required. It was also said that the purchase of the equity of redemption may well be considered as an ex-tinguishment of so much of the mortgage debt as should bear the same proportion to the whole debt secured by the mortgage, as the value of that interest in the premises bears to the whole estate.

But it is claimed that in this case the parties do not stand on the same ground in equity, but that the premises are to be applied in satisfaction of the mortgage in the reverse order of their alienation, and that the reversion and the 18,000 feet of land mortgaged, which were left after the dower and homestead were set off, having been last sold, must be applied first in reduction of the mortgage debt, or in discharge of the same, if of sufficient value, before the holder of the dower and homestead can be called on for contribution, and it is claimed that Brown v. Simons, 44 N. H. 475, authorizes such application. But a careful examination of the principle of that case will show that there is no foundation for that claim. It was there held that where a mortgagor sells a portion of the land in different parcels and at different times, that which he retains will in equity be held primarily liable for the whole debt; and, if not sufficient, the several parcels sold will be liable in the inverse order of such sales beginning with the parcel last sold, &c. But the sales here referred to are the sales from the mortgagor of the premises mortgaged. Sales by the grantees of the mortgagor'would have nothing to do with the question; whether they were earlier or later, the one than the other, would make no difference.

In the case before us, while the mortgagor lived, he held the whole title subject to the mortgage,and it was only at his death that the rights were severed. The right of dower and of homestead vested in the widow at his decease, afld the equity of redemption subject to dower and homestead vested at the same time in his creditors or in his administrator for their benefit and in trust for them. Both estates thus commenced or were derived from the mortgagor at the same time, to wit, the time of his decease; and a subsequent sale of one right by the administrator or a set-off of the dower and homestead, or a sale of such rights, if a sale of the homestead could be made, would have no bearing on the question.

If, because the dower and homestead were first set off and the sale of the equity was made afterwards as in this case, the whole value of the equity sold is to be applied to reduce or discharge the mortgage debt before the plaintiff is called on for contribution, then it would follow, that, if the order of the sale and set-off were reversed, the rule would apply with equal force. Thus, suppose the sale of the equity to be made first and the set-off of dower and homestead to be made afterwards, then, by the same rule, the whole of the dower and homestead are to be applied to reduce or discharge the mortgage debt before the purchaser of the equity of redemption be called on for contribution, which would simply be stating an absurdity.

The rights of both parties, having vested at the same time from the mortgagor, — the equity of redemption on the one side, and the right of dower and of homestead on the other, — the equities of the parties are equal, and the mortgage debt is to be paid by them according to the relative value of the proportion of mortgaged property held by each. Salem v. Edgerly, 33 N. H. 46; Aiken v. Gale, 37 N. H. 501.

A master will be appointed to ascertain the relative value of the estate of the plaintiff in the mortgaged premises as compared with the estate of the defendant in the same premises, at the time of the sale of the equity of redemption; and the proportion of the mortgage debt for each to pay, as of that date, will be according to the value of their several interests in the mortgaged premises. And when that is ascertained and the amount, which the plaintiff should pay, as of that date, is determined, the plaintiff will have a decree that she hold her dower and homestead free from any incumbrance in consequence of the mortgage, upon paying into court the amount thus due from her at the date of the sale of the equity with interest thereon since that time. And thereupon the suit upon the mortgage will be discharged. If she does not thus pay the money into court and have a decree, the mortgagee will be allowed to take a conditional judgment in his suit upon the mortgage, for the amount thus found due from this plaintiff at the time of the sale of the equity, with interest from that time.

If any question arises concerning the payment of the taxes on the premises mortgaged or the different parts thereof, or concerning the repairs done upon any part of the premises since the sale of the equity of redemption, which is deemed material as affecting the final decree, the master will report the facts bearing upon such question.

Master appointed.