Hartshorne v. Hartshorne , 2 N.J. Eq. 349 ( 1840 )

The Chancellor.

This is a bill for dower. The-complainant alleges, that her husband was seized in fee of certain loads in the county of Monmouth, during (heir coverture, of .which she claims to have set off one thin! part for her dower. It ■is stated in the bill, that prior to the marriage, her husband gave a mortgage on the property whereof dower is claimed, for three thousand dollars, on which payments have been-made reducing it to eleven hundred dollars, and that such mortgage has been assigned to the defendant. The defendant purchased the equity of redemption at sheriff’s sale, and afterwards procured the assignment of the aforesaid mortgage. The bill farther states, that during the marriage, tiro complainant and her husband also executed a mortgage on the property for two thousand two hundred dollars, which has been reduced by payments Uysix hundred dollars, and is held by John W. Holmes. Other mortgages are set -out in tire bill, but as they are said to be paid off and discharged it is not material to state them here. To this bill there is a demurrer for want of equity and for want of parties, which presents some questions important to be settled.

In the first place, it is insisted that this court has no jurisdiction in dower, and that jn New-Jersey the remedy is exclusively in the common law courts. Whatever difference of opinion on this subject might at one time have existed, I consider it settled .at this clay, that in relation to both dower and partition the courts of law and equity hold a concurrent jurisdiction. I had occasion recently to examine a case of partition, and became satisfied not only of the authority of this court over it, but of the indispensable necessity for its exercise. There are cases, and the one before me was of that character, ia which the parties could not have had the proper relief at, law. So in dower, in favor of the widow, it is indispensable in many eases for the sake of cüscove» ry by the oath of the defendant as to the property, its nature, and the incumbrances upon it, and sometimes for an account of the rents and profits, that the jurisdiction of this court should be maintained. If the legal title be denied, it is always in the power of the court to send that question to be tried at law, and such is the universal practice. This subject has been much discussed, but it should now be considered as settled in favor of the jurisdiction, both in England and in this country: Mundy v. Mundy, 2 Vesey, jr. 128; Curtis v. Curtis, 2 Brown’s Ch. Cas. 620 ; 1 Maddock’s Chan. 242 ; Swaine v. Perrins, 5 Johns. Chan. R. 488 ; Badgley v. Bruce and Halsey, 4 Paige, 98.

The defendant is a purchaser of the equity of redemption in the premises whereof dower is demanded, and has by assignment become the owner of a moitgage made by the husband prior to his marriage with the complainant. On the one side, it is insisted, that by this assignment the mortgage became merged or extinguished when it came into the defendant’s hands; and on the other, that the defendant is a mortgagee in possession, and the complainant’s rights thereby barred. A purchaser of the equity of redemption at a sheriff’s sale, takes the property cum ■ onere, and acquires no rights beyond what remain in the mortgagor after satisfying the incumbrance out of the land. If, by any device or circuity, such purchaser should procure the payment of the mortgage without ;i resort to the land, as'by suit against the mortgagor or his represeutalives on the bond, manifest injustice would take place; for he would then have the property clear of the very debt subject to which it was sold. By such a couise a purchaser, for a nominal sum, might become possessed of a valuable estate, and the mortgagor virtually twice discharge the same debt. This difficulty was presented to chancellor Kent and fully settled by him, in the case of Tice v. Annin, 2 Johns. Ch. 125. The rule he established in that case was this : If a creditor other than the mortgagee sells the equity of redemption by an execution at law, the mortgage debt remains undisturbed, and the rights of the mortgagor over and above the mortgage in the property are rightly disposed of to satisfy his creditors.

Tliis case presents no embarrassment. But suppose, after the equity of redemption is thus sold subject to the incumbrance, the mortgagee should prosecute his bond at lawj. and undertake to sell oilier property than that contained in the mortgage. Then the chancellor held that a court of equity should either stay such proceedings, or compel the creditor, upon payment, to assign over his debt and security to the debtor, to enable him to indemnify himself out of the mortgaged premises. But in the case referred to, there existed a still greater difficult}7. The mortgagee sold the equity of redemption in the mortgaged premises for a part of the debt, and then put it out of his power to assign the securities to the mortgagor by actually assigning them over to the purchaser of the equity of redemption ; and to prevent gross injustice, the chancellor, as the only alternative, held the debt extinguished in the hands of the purchaser. Ail this proceeds ou the idea that the purchaser of the equity of redemption shall in no event hold the land discharged of the incumbrance, and if he attempt to make the debt, by buying up the bond and mortgage and recovering the amount unjustly out of the obligor, the debt shall in his hands be considered extinguished. In a case so circumstanced, this result seems unavoidable to prevent the grossest injustice and wrong. But I do not understand this case as going the length of saying, that a purchaser of the equity of redemption can be compelled, in all cases, to pay off the antecedent incumbrances farther than the land itself will dischaige them. The purchaser placed himself in a peculiar position, and was attempting thereby to do a wrong; and the chancellor, to avoid such wrong, held the debt cancelled in his hands. There are cases, I am aware, which look like holding the purchaser liable for the debt personally, but I cannot think that such is the true doctrine. It is not necessary for me to decide this question here, but I desire to state my conviction, that the purchaser is liable to the extent of the land purchased, and no further, and that he will at all times be dischaiged upon releasing the land. There is no privity between the mortgagee and the purchaser, and I cannot see upon what principle he can be reached, except it be through the lane! which he has purchased. I speak not new of a case where the purchaser enters into special obligation to pay antecedent incumbrances; all such cases will be governed by the terms and character of the contract; but of the ordinary purchaser without special agreement, depending on the obligation which the law in such case'imposes. Indeed-it is matter of doubt whether it is intended, from the cases, to go farther than the principle as I have stated it. The doctrine proceeds upon the idea that a court of equity, independent of any express contract, will raise upon the conscience of the purchaser an obligation to indemnify- the mortgagor against his liability on the mortgage; hut to what extent? Certainly not beyond the land purchased. This subject will be found discussed in Waring v. Ward, 7 Vesey, jr. 337; Cumberland v. Coddington, 3 Johns. Ch. 261; Stevenson and Woodruff v. Black, Saxton, 342. It is every day’s practice to sell the equity of redemption by an execution at law, sometimes at the suit of the mortgagee and sometimes of other creditors. If a purchaser could be called upon to discharge all the incumbrances on his -personal liability, it would greatly embarrass these sales, and effectually prevent their being made.

But whether this view of -the subject be correct or not, and recognizing the decision in 2 Johns. Chan, to which I have referred, in which the bond and mortgage' assigned to the purchaser of the equity of redemption was held to be an extinguishment of .the debt, still, as it affects, the right of dower of the ■.widow in tile lands, a new and very different question is pre.-sented. It is agreed, that if the husband before marriage, or in ¡conjunction with his wife after marriage, (the deed being acknowledged by the wife in due form of law,) execute a mortgage, and it remains in the hands of the mortgagee, the widow can only have her dower subject to such mortgage; and when ¡this defendant purchased the equity of redemption, he purchased with the widow’s right discharged to that extent on the property. Had the mortgage remained as it then was, in the hands of the mortgagee, the widow’s dower would have been subject to it, aud why should it be otherwise now that it is transferred to the purchaser? Had a foreclosure and sale taken place under the' mortgage, the widow would have been barred her lights, except as to the surplus beyond satisfying the mortgage. At her husband’s death the true claim this widow had was to one third of the laud after the mortgages were satisfied, and nothing more. In the case in 5 Johns. Chan, before cited, it was held that the widow was bound to contribute hei ratable proportion towards a mortgage which she had executed with her husband, and which the heir had been obliged to pay off, before allowing her dower in the land. The chancellor in that case says, “ To allow her the dower in the land without contribution, would be to give her the same right that she would have been entitled to if there had been no mortgage, or as if she had not duly joined in it. It would be to give her dower in the whole absolute interest and estate in the land, when she was entitled to dower only in a part of that interest and estate.”

But the case of Russell v. Austin, in 1 Paige, 193, will, be found similar to the one we are now considering. That was a purchase of the equity of redemption at a sheriff’s sale, and an assignment to the purchaser of a bond and mortgage made by the husband and wife. It was there argued, that the debt was extinguished and merged by the assignment; but the court held the widow entitled to her dower in the equity of redemption only, subject to the mortgage. In that case, as in this, the intention of the purchaser not to extinguish the debt was manifest, for in-' stead of cancelling the securities he had them assigned to him.

From every view, therefore, which I have been able to giye this case, I cannot think this widow entitled'to any thing more-than her dower in the lands subject to the outstanding mortgages, including the one assigned to the defendant. She io-eiv titled to her dower in the lands in the possession of the defendant, (upon the case stated in the bill,) upon keeping down one third of the interest on the amount due on the property.

As to the parties, I do not see the necessity of bringing Mr. Holmes before the court. His claim can in no way be affected-by any decision here. It is a question entirely between the complainant and defendant. The same rule would apply to any other mortgagee, and with the more force, if the mortgage has been paid off though not cancelled of record. As to Mr. Baker, who purchased a part of the lands, no dower is sought in this action of those lands, and he cannot, therefore, be a necessary or proper party.

While, therefore, my opinion is with the defendant on the main question in the cause, yet, as his demurrer is to the whole bill, and the complainaut is entitled to her dower in the equity of redemption, and as there is no defect of parties, the demurrer must be overruled with costs.

Demurrer overruled.