
    Wilson Eldridge vs. Rebecca Eldridge.
    The widow of a mortgagor (having united in the mortgage) is not entitled to dov'er against the mortgagee, or those claiming under him, although the equity of redemption of the husband lias, by release or conveyance, been united to the legal title of the mortgagee.
    The mortgagee, having purchased the equity of redemption, has united the equitable title of the mortgagor to his own legal title. He holds the legal estate by virtue of the mortgage ; and when the wife is a party to the mortgage, or the mortgage is given prior to the coverture, she can only claim her dower subject to the mortgage, and that not at law, but in equity only.
    If she seeks to enforce her legal right to dower she can do so only by redeeming the mortgage.
    The widow having the right of redemption by virtue of her interest as doweress, the party having the estate under the mortgage is entitled to foreclose. The right of the mortgagee and mortgagor with regard to foreclosure on the one hand, and redemption on the other, are mutual. The existence of the former involves that of the latter.
    The mortgagee is entitled to a decree that the widow of the mortgagor shall redeem the mortgage, or that her equity of redemption be foreclosed.
    This was a bill filed by a mortgagee, who had also become the owner of the equity of redemption against the widow of the mortgagor, who had united in the mortgage, praying that she either redeem the mortgage or be foreclosed of all right to the mortgaged premises. The complainant had become the purchaser of the equity of redemption at sheriff’s sale under executions against the mortgagor.
    For the defendant it was contended—
    
      First. That the mortgage debt was included in the judgment under which the equity of redemption was sold, and was thereby extinguished.
    
      Second. That the defendant is entitled to dower in the mortgaged premises, as well against the complainant as all others, and is entitled to hold and enjoy the premises until dower be assigned her.
    For complainant, C. S. Green.
    
    
      The first ground of defence is not sustained by proof.
    On the second point, the law is well settled—
    1. That the widow is entitled to dower against every one except the mortgagee and his assigns.
    2., The widow of one seized of an equity of redemption only, cannot claim dower against the mortgagee or his assigns, although the equity of redemption has been united by release or conveyance to the legal title of the mortgagee. Woodhull v. Reid, 2 Har. 128; Thompson v. Boyd, 1 Zab. 58; Thompson v. Boyd, 2 Zab. 543.
    In equity the rule is the same. Hartshorne v. Hartshorne, 1 Green's Ch. 349; 1 Hilliard on Mort. 343, § 8.
    The reason given is, there is an intervening estate, which prevents a merger. Each party has rights. The complainant may foreclose. The defendant has an equitable interest.
    If the position of the parties were reversed, and complainant was in possession, defendant could not bring ejectment. Opdycke v. Bartles, 3 Stock. 133; Thompson v. Boyd (in error), 2 Zab. 543.
    The defendant has a clear right to redeem, and complainant has a corresponding right to foreclose.
    
      Kingman, contra.
   The Chancellor.

Abraham Eldridge, in his lifetime, with his wife Rebecca, the defendant .in this suit, on the fifth of May, 1849, executed to the complainant a mortgage upon a house and lot in the county of Mercer, to secure the payment of $365, with interest. On the tenth of March, 1860, the complainant recovered a judgment in the Mercer Circuit against the mortgagor. By virtue of an execution issued upon this judgment, and' of other executions against the same defendant, the sheriff of the county of Mercer, by deed bearing date on the first day of August, 1860, conveyed to the complainant all the estate and interest of the mortgagor in the mortgaged premises subject to the complainant’s mortgage. By virtue of the mortgage and the sheriff’s deed, as well the legal title as the equity of redemption of Abraham Eldridge, the mortgagor in the mortgaged premises, was divested, and the entire legal and equitable estate vested in the mortgagee.

The equity of redemption of the widow in her dower right was not affected by the sheriff’s sale, and upon her husband’s death she became entitled, as doweress, to redeem the mortgage. It is to foreclose that equity that this bill is filed. The bill does not ask a sale of the mortgaged premises. The legal title, as well as the equity of redemption of the mortgagor, is already in the complainant. lie only asks that the widow should redeem the mortgage, or that her equity of redemption should be foreclosed.

The first ground of defence is, that the mortgage debt was included in the judgment under which the equity of redemption was sold, and was thereby extinguished. The only evidence in support of this allegation consists of parol evidence of the declarations of the obligor, and an extra-judicial affidavit made by him in his lifetime. All this testimony is clearly incompetent. The former is mere hearsay evidence. The latter is inadmissible upon well-settled principles. The affidavit moreover contains no averment that the mortgage debt was included in the judgment. The allegation is fully met and denied by the evidence of the complainant himself, and so far as his knowledge extends, by the evidence of the subscribing witness to the bond. It must be assumed that the mortgage is a subsisting debt — there is no proof to the contrary.

The second ground of defence is, that the defendant is entitled to dower in the mortgaged premises, as well against the complainant as all others, and that she is entitled to hold and enjoy the premises till dower be assigned her.

It is not denied that the widow is entitled to dower against every one except the mortgagee and his assigns. But as against the mortgagee, or those claiming under him, she is not entitled to dower, although the equity of redemption of the husband has by release or conveyance been united to the legal title of the mortgagee. Woodhull v. Reid, 1 Harr. 128; Thompson v. Boyd, 1 Zab. 58; S. C. in error, 2 Zab. 543.

The mortgagee, having purchased the equity of redemption, has united the equitable title of the mortgagor to his own legal title. He holds the legal estate by virtue of the mortgage ; and where the wife is a party to the mortgage, or the mortgage is given prior to the coverture, she can only claim her dower subject to the mortgage, and that not at law but in equity only. If she seeks to enforce her legal right to dower, she can do so only by redeeming the mortgage. Hartshorne v. Hartshorne, 1 Green's Ch. 356; Russell v. Austin, 1 Paige 193; Opdycke v. Bartles, 3 Stock. 133.

The widow having the right of redemption by virtue of her interest as doweress, the party having the estate under the mortgage is entitled to foreclose. The rights of the mortgagee and mortgagor, with regard to foreclosure on the one hand, and redemption on the other, are mutual. The existence of the former involves that of the latter. Caufman v. Sayre, 2 B. Monroe 206; 2 Hilliard on Mortgages 1.

From the frame of the answer, as well as from the suggestions made by the counsel of the defendant upon the argument, it seems to have been desired that the court should in this suit ascertain and declare the value of the complainant’s interest in the equity of redemption. But the frame of the bill is not adapted to that form of relief. The complainant merely asks a foreclosure of the defendant’s equity of redemption. He is entitled to relief according to the prayer of his bin.

Cited in Duncan v. Smith, 2 Vroom, 329.  