Bank of Commerce v. Owens

Robinson, J., delivered the opinion of the Court. Two questions arise upon this appeal: First, is the appellee entitled to dower, and secondly, if so, is she dowable in the whole proceeds arising from the sale of the mortgaged premises, or in the surplus only, after the payment of the mortgage debts ? On the part of the appellant it is insisted, that by the execution of the mortgages she parted with her inchoate right of dower in the legal estate, and that by the subsequent assignment of the husband under the deed of trust, her dower was barred in the equitable estate. In other words, it is held that the wife is not entitled to dower in an equitable estate under the provisions of sec. 5 of Art. 45 of the Code, unless it is held by the husband at the time of his death.

We do not understand, however, the cases of Hopkins et al. vs. Frey, 2 Gill, 363 , and Miller vs. Stump, 3 Gill, 310 , to go to this extent. In the former, it was decided that the widow was not entitled, because the husband parted with the equitable estate prior to the passage of the Act of 1818, ch. 193, under which she claimed. And in Miller vs. Stump, although it was held that she could not recover it as against the purchaser, yet the Court said, “ It may be asked whether she cannot claim in lieu of the one-third of the land, a portion of the surplus.. In some cases it may be argued, that the widow is entitled to a portion of the surplus.

It is not necessary, however, upon this appeal, to inquire if such be the law'of this case. If, indeed, she be entitled to receive anything, she is not to receive it of the purchaser.” Here is a very strong intimation that the widow may be entitled to dower in the surplus. Certainly it cannot be said that the Court decided' that she was neither en ³²⁵ titled to dower in the land, nor in the surplus. • The latter was left as an open question. But in this case, it must be remembered, the husband was seized of a legal title, upon which the wife’s inchoate right of dower attached by the common law.

And can it be said, that pledging this right to secure her husband’s indebtedness, she thereby puts it in his power, or that of his creditor to defeat it altogether ? To this view we cannot yield our assent. The husband may assign the equity of redemption, but no act of his could deprive the widow of the right to redeem, to which she is entitled undér the common law. Moreover in this case, it cannot be held that the husband parted with the equitable estate within the supposed meaning of the Court in Miller vs. Stump.

There was no sale here by him for a money consideration, but the assignment was made to trustees, in order that they might sell and apply the proceeds towards the extinguishment of the very mortgages, in favor of which the wife had pledged her dower right. It was, in fact, but a conversion of the equity of redemption into money, for the benefit of creditors. Now would it not be a construction equally strange and unjust, to say, that the widow is not entitled to dower in the legal estate, because she parted with it by joining her husband in the execution of the mortgages ? nor can she claim it in the equitable estate., because that was conveyed by the husband to trustees to sell, and apply the proceeds to the extinguishment of the mortgages ? So that between the two, the dower is altogether defeated.

It will be observed that we have treated the mortgagee as holding the legal title; for such we understand to be his estate by the common law. In the case of the George’s Creek Coal & Iron Co.’s Lessee vs. Detmold, 1 Md., 225 , where there was a mortgage ³²⁶ with a covenant, that the mortgagor should remain in possession and receive the rents and profits until forfeiture, it was held that such a covenant operated as a re-demise, and that until the breach, the mortgagee could not maintain ejectment against the mortgagor, because to sustain such an action, he must not only have the legal title, but the right of possession. There is nothing in the decision of 'this case, that conflicts with the relations of the mortgagor and mortgagee, as they existed at common law.’ It is our opinion, therefore, in this case, that the assignment by the husband under the deed of trust, does not defeat the appellee’s right of dower. If this be so, then in what is she to he endowed ? — the whole proceeds of sale, or the surplus only ?

We-have not been able to find any decision in England upon this question, and, in fact, it was not until the Statute of 3 and 4 "William IV, ch. 105, that the wife was entitled to dower in an equitable estate. In this country, however, where the dower right in the equity of redemption is established by judicial decision, or conferred by statutory provision, we find a number of cases directly bearing upon the point. Without extending this opinion, by an examination of all the authorities, we think it may be said that they fully ■ establish this general principle, that where the wife unites with the husband in- a mortgage of real estate belonging to him, and the property is sold under a decree of foreclosure, she is entitled to dower in the surplus only, after the payment of the mortgage. . In support of this, we refer to Smith vs. Jackson, 2 Edws.

Ch., 28; Titus vs. Neilson, 5 Johns. Ch.,