Rawlings v. Lowndes

Robinson, J., delivered the opinion of the Court. This suit is brought by the appellant, to recover dower in a tract of land conveyed by William Reed to Moses Raw-lings, her husband, by deed, bearing date, the 28th of October, 1839, and recorded the following day. At the time of the delivery of the deed, Rawlings gave to Reed six single bills, amounting in the aggregate to twelve thousand dollars, the same being the consideration money mentioned in the deed, and by a mortgage dated the samé day, to wit, the 28th of October, but not acknowledged until the 14th of November following, he re-conveyed the tract of land, to secure the payment of the single bills. It thus appears, that sixteen days intervened between the execution and delivery of the deed, and the acknowledgment and delivery of the mortgage.

In 1862, Rawlings applied for the benefit of the insolvent laws of Maryland, and the tract of land in question, was sold and conveyed by his trustee in insolvency to the appellee. At the time of his application, Rawlings had paid about one half of the mortgage debt, and the balance due thereon, was paid by the insolvent trustee out of the proceeds arising from the sale of the said tract of land, leaving a surplus after the payment thereof of several thousand dollars, which was distributed among the other creditors. ⁶⁴³ Iii 1867, Eawlings died, and this suit is brought by his widow to recover dower in the land thus conveyed to him during the coverture, and which was in his life-time sold and conveyed to the appellee by the insolvent trustee. The appellee insists, that although the deed was delivered on the 28th of October, and the mortgage acknowledged and delivered on the 14th of November following, they nevertheless constitute and form parts of one and the same transaction, and the husband’s seizin being therefore instantaneous and not beneficial, his widow is not entitled to dower. At common law, the widow was entitled to dower in the lands and tenements of which the husband was seized as of an estate of inheritance during the coverture.

If however the seizin was merely instantaneous, intended as a means of accomplishing some ulterior purpose in regard to the estate, the husband being as it were a conduit, through which the estate passed, without any intention to clothe him with a beneficial interest, the widow would not be entitled to dower, as for instance a conveyance to a trustee to re-convey, or as put in the old books, a levy by way of a fine, the eonusee rendering back by the same fine, the land and tenements to the conusor. The husband in such cases holds the bare legal title, without any beneficial interest. 2 Crabb’s Real Prop., 61; Washburn’s Real Prop., 176 ; Coke Litt., 31, b. This doctrino has been extended to the seizin of the husband under a deed executed and delivered simultaneous with a mortgage by him to secure the purchase money, and whatever doubt may have existed at one time on this subject, it is too well settled to be questioned, that in such a case, the widow will not be entitled to dower against the mortgagee. McCauly vs. Grimes, 2 G. & J., 318 ; 2 Crabb’s Real Prop., 161; 1 Washburn’s Real Prop., 161 ; 4 Kent’s Com., 41.

The lien created by the mortgage takes precedence of the right of dower in the wife of the purchaser, although the title of the mortgagee like that of a widow is derived from the seizin of the husband; but as against all other persons the inchoate ⁶⁴⁴ right of dower attaches, and if the mortgage is paid by the husband in his life-time, she will be entitled to dower as if it had never existed, or if the land be sold after his death under a decree of foreclosure, she will be entitled to dower in the surplus, after the payment of the mortgage. 1 Washburn’s Real Prop., 177, and cases therein cited. But in order to exclude the dower right in such, cases, the deed and mortgage should constitute and form part of one and the same transaction, for if the deed is delivered, no agreement made subsequent thereto between the vendor and purchaser, can affect in any manner the inchoate right of dower, which attached upon the seizin of the husband. It may be laid down as a general rule therefore, that the deed and