Van Duyne v. Thayre , 14 Wend. 233 ( 1835 )

By the Court,

Nelson, J.

The evidence of the loss of the mortgage was sufficient to admit secondary proof of its contents. I cannot comprehend the force of the objection to the admissions of the mortgagor, while in the possession arid occupation of the premises. They were admissible against him, and all persons claiming under him. 4 Johns. R. 230. 11 Wendell, 536. It is said, that the husband may thereby defeat his wife’s dower; but her rights in this respect are no more deserving an exemption from this well settled rule of law, than any other person who has derived his title through him. These declarations would unquestionably be competent evidence against an heir or purchaser. The wife’s dower is subject to encumbrances existing prior to the intermarriage, and her title may be defeated the same as the title of the heir, or any other title subsequently accruing. 7 Johns. R. 283. The principle of the objection goes to the unreasonable length of excluding the declarations of a husband against himself in all cases of the kind, even if living and a party; because their tendency would be to overreach the claim of dower by the widow after his death. For the error of the judge on this point, there must be a new trial.

As to the main question in the case, it is settled that the widow of a mortgagor is entitled to dower in the equity of redemption, upon the ground that, until foreclosure or entry, he holds the legal title ; but her estate is subject to the encumbrance, and may be defeated by a legal enforcement of it. 7 Johns. R. 283. She may pay off the mortgage, and thereby protect herself. The subsequent intermarriage of the mortgagor is not to be permitted to affect the security, or any of the remedies under it.

If the mortgagee after forfeiture entered into possession, either by the consent of the mortgagor or by means of legal proceedings, he may defend himself there, at least till his debt is paid ; and the widow has no rights in this respect beyond what would belong to her husband, the mortgagor, if living.

Notwithstanding the mortgagor is viewed in the law as holding the legal estate for many purposes, he is not so viewed, generally, as against the mortgagee and those claiming under him after forfeiture. They might have maintained ejectment before the revised statutes, and may now defend themselves if in possession under the mortgage. The tenant of the mortgagor might attorn to the mortgagee. 20 Johns. R. 51. This interest or estate of the mortgagee would descend to the heir, it being for the above purposes the legal estate. He must have brought the ejectment, if the mortgagee had died out of possession. Though the fee descends to the heir, he, however, takes it in trust, it is said, for the persona] representatives. 3 Johns. Ch. R. 145. Toller, 184 to 187. The debt goes to them, and they may control the security ; but when possession is sought by a resort to the security at law after forfeiture, on the footing of a legal or common law estate in the land, the heir is the proper party. He represents the realty. I have no doubt, therefore, that it was competent in this case, for the heirs to set up their possession as representing the legal estate in the mortgaged property after forfeiture, in bar of the widow’s claim to dower, just as they might have done if an ejectment had been brought against them by the mortgagor, the husband. The widow may pay off the mortgage, and her right then is perfect; and then a release of the equity of redemption, even if valid against the mortgagor and his heirs, would be inoperative as to her. 5 Johns. Ch. R. 490. See also id, 452.

New trial granted.