Collins v. Torry , 7 Johns. 278 ( 1810 )

Per Curiam.

This case comes within one of the principles declared in the case of Hitchcock and wife v. Harrington. (6 Johns. Pep. 290.) The tenant derives his, title from, and holds under, the title of the husband of the demandant, as it existed during the coverture, and he, therefore, is not permitted to deny the seisin of the husband.. He shows no title under the mortgage; and he cannot, therefore, set it up to defeat the widow’s dower. 'A mortgage before foreclosure or entry is not now regarded as a legal title which a stranger can set up. It can only be used by the mortgagee and his representatives. This does, in effect, enable the wife to be endowed of an equity of redemption; and, under the above limitations, it is just and consistent with principle that she should be endowed of it. Why should the mortgagor’s interest (when the claim under the mortgage is not interposed) be deemed the legal estate, and yet the widow be excluded from her dower ? Lord Mansfield, in Burgess v. Wheate, (1 Black. Rep. 160.) said that it was not on law and reason, but on practice, that the" wife was denied dower in such a case, and that a wrong determination had too long misled to be-altered and set right. It was not, however, until the case of Dixon v. Saville, in 1783, (1 Bro. 326.) that this point appears to have been put beyond controversy in E?i-gland. We have, in this state, gone greater lengths than the precedents in the English books towards a recognition of the mortgagor’s estate at law. It is here the subject of sale on execution, as real estate; and on the other hand, the interest of the mortgagee, before entry or foreclosure, is not the subject of such sale. We cans-not now, with any justice or consistency, say that the in$erest of the mortgagor is the real estate at law, and yet that it is not such estate, when the mortgagor’s widow comes to ask her dower of the heir or grantee of her husband. The plain and necessary rule is, to allow her the dower, which she must take, as the heir or purchaser takes the estate, subject to the mortgage.

But in this case, there is another reason why the mortgage cannot be set up to destroy the alleged seisin of the husband. The mortgage is not a subsisting title, for the mortgagee never entered, and there has been no foreclosure, nor has interest been paid within 20 years. (3 Johns. Rep. 386.) The purchase of the mortgage by the administrator of Winston from the executors of the mortgagee, was, in effect, a discharge of the mortgage, in favour of the title under the mortgagor. The mortgage is, therefore, to be considered as satisfied and extinguished, and the title of the tenant relates back, and is founded on the seisin of the husband. In ho point of view can the mortgage now affect the demand-ant’s claim.

Judgment ought, therefore, to b^ rendered for the demandant.