Hays v. Cretin

Briscoe, J., delivered the opinion of the Court. This is a suit in equity brought in the Circuit Court of Frederick County by the appellee, the widow of John T. Cretin, deceased, against the appellant, as assignee of a mortgage from Cretin and wife, to Clayonia F. Maynard and Fanny Noonan,' for an injunction to restrain the assignee from selling the mortgaged real estate and to enforce her equity of redemption, as the alleged owner of a dower interest in the land. The inj unction and the relief asked by the bill were granted by the Court below, and from a decree so granting the relief an appeal has been taken. It will be necessary for us to briefly state the material facts, disclosed by the record, in order to obtain a clear and proper understanding of the case.

The bill avers, that John T. Cretin, of Frederick County, died intestate on the 6th of December, 1903, seized and possessed of a tract of land, situate in that county, containing 200 acres, more or less ; that the appellee is his widow and as such is entitled to a dower estate in the land; that on May 24th, 1889, Cretin and his wife, executed a mortgage of this farm to secure the payment of two promissory notes dated the 24th day of May, 1889, payable five years after date and given by Cretin to Maynard and Noonan, each for the sum of two thousand dollars, and that the mortgage was subsequently ⁷⁰¹ assigned to the appellant. The mortgage debt being overdue, the appellant advertised the property to be sold at public sale on the 13th of February, 1904, to pay the mortgage debt. The bill then avers that on the 10th of February, 1904, the appellee, as owner of the dower interest, offered to redeem the mortgage and tendered -the defendant the sum of $4,300, in legal tender currency, in payment and redemption of the mortgage debt, interest and costs, but the defendant declined to accept the tender and refused to permit her to redeem. The prayer of the bill, in addition to the prayer for general relief is, first, that the defendant may be enjoined and restrained by injunction from executing the power of sale contained in the mortgage, and from selling or assigning the mortgage debt, pending the proceedings, and second, that the appellees equity of redemption may be enforced and the defendant be' required to accept the amount of the mortgage debt, interest and cost, so tendered and paid into Court and that the appellee may be subrogated to the rights of the mortgagee.

The defendant, in his answer, admits the allegations contained in the first, second and third paragraphs of the bill, but denies that the appellee has such a beneficial interest and estate in the mortgaged land as entitles her to redeem. The answer avers, that the alleged tender and offer to redeem, is not for the purpose of protecting any beneficial in the real estate, but is a fraudulent scheme on the part of the appellee to defeat and destroy the rights and interest of those who have a legitimate beneficial interest in and to the land, thát the estate of the decedent is largely indebted on other claims, including a second mortgage in'which the widow did not join, of $300, and an unsecured balance due and owing to the appellant. The answer, then, avers, that to grant the relief prayed by the bill would defeat the appellant’s rights as second mortgagee and creditor of the estate and would also destroy the interests of the heirs-at-law, and the other general creditors of the estate. It appears, then according to the pleadings and the con ⁷⁰² ceded facts of the case, the principal question raised for our consideration is, the legal right of the appellee the widow of Mr. Cretin, to redeem her interest in the equity of redemption from the first mortgage, in which she joined with her husband.

There can be no difficulty we think-, as to the general propositi©n that a widow who has joined in a mortgage has the undoubted right to redeem, notwithstanding the fact, there has been no legal assignment of the dower. This proposition is well settled upon reason and authority, because of the wife’s inchoate right of dower and of her interest in the estate. In Jones on Mortgages, vol. 2, sec. 1067, it is said, that a widow who has joined in a mortgage in release of dower m^y redeem, for she is entitled to dower as against every person except the mortgagee and those claiming under him. She has an undoubted right to redeem although she has released her dower.

And even a wife having only an inchoate right of dower may redeem land from a mortgage in which she has joined with her husband to release dower. In Gatewood v. Gatewood and others, 75 Va. 413 , the Court after citing a number of authorities to sustain the position, that a tenant in dqwer, may insist upon the redemption of a mortgage, says that the dower interest of the wife in the husbend’s estate