
    The State Bank of Ohio v. Otho Hinton and others.
    1 The doctrine is -well settled that a widow, who, during coverture, joined her husband in a'mortgage of realty, whereof he had inheritable seizin, is dowable in equity ofthe surplus moneys arising from a judicial sale under a decree of foreclosure against her thereon, which may remain after satisfying the mortgage debt and the proper costs of foreclosure; but she is dowable of the surplus only, and not of the entire proceeds, to he satisfied out of the surplus; her right being extinguished by the sale, to the extent that the proceeds are appropriated to the satisfaction of the mortgage.
    2 Where a husband, with whom his wife joined in a mortgage of realty in which she had an inchoate right of dower, disposes of his equity of redemption therein by deed in which she does not join, and dies after a judicial sale ofthe mortgaged premises under a decree of foreclosure against them, she is dowable of the surplus moneys resulting therefrom, after satisfying the mortgage debt and costs, to the extent that her right can be equitably discharged from the portion of such surplus which shall not previous to its-assertion have passed by final decree from the chancellor’s control; hut if the equity of redemption beheld by several, to some of whom shall have been distributed their respective portions of the surplus on final decree, withoutohjection interposed’,or assertion ofright by her, theywill not be required to refund, nor will contribution be enforced against the interests of others-which shall not have been so distributed.
    Appeal. Reserved in the district court of Delaware county-
    The material facts disclosed by the record in this case are as follows :
    In 1845, Otho Hinton and his wife Rebecca, joined in a mortgage of realty to the plaintiff.
    In 1847, Otho Hinton, by deed in which his wife did not join, conveyed his equity of redemption. Under this deed, the defendants Collins, Powers and Williams, by successive conveyances, became vested with the title to the equity of redemption, the first holding an undivided half, and the latter two each an undivided fourth part thereof.
    In 1860, under a decree of foreclosure to which Otho Hinton and wife, and Collins, Powers and Williams were parties, a judicial sale of the mortgage premises was made for $10,700, which was then confirmed, and an order and decree of court entered that $2,257.40, the amount of the mortgage debt to the plaintiff, and the costs of foreclosure, be first paid ; that, of the surplus, $2,110.60, be paid to Powers and Williams, each, on account of their interest in the equity of redemption; and $4,221.20 be retained in court to await the further order thereof; all of which was done accordingly, without claim being asserted or objection made by Mrs. Hinton.
    In April 1865, Otho Hinton died ; and in August of that year, the $4,221.20 still remaining undisposed of by the court, Mrs. Hinton, by .answer and cross-petition, asserted her right to be endowed of the entire proceeds of the sale, to be satisfied out of the surplus, and asks that Powers and Williams be decreed to refund rateably.
    The cause being in the district court, on appeal, so far as relates to the claim for dower in the proceeds of the judicial sale, was therein reserved for decision here.
    
      L. J. Qritchfield and T. E. Powell for Mrs. Hinton :
    “ The policy of the law has been to preserve, with great care, the right of dower when it has once attached to the property of the husband.” Firestone v. Firestone, 2 Ohio St. 415. “ Dower is highly favored in equity.” Per White, J., in McArthur v. Franklin, 15 Ohio St. 508.
    During the coverture the husband was seized of the premises mortgaged, as an estate of inheritance. (S. & C. 517). The wife’s contingent right of dower had attached to the premises — had become perfect.
    In joining the husband in the execution of the mortgage the wife released her contingent right of dower for the single and limited purpose of securing the payment of the husband’s mortgage debt, retaining her right to dower in the surplus land, or, if all the land should be sold, under the mortgage, in the surplus proceeds of the land, such surplus proceeds standing for the surplus land, by virtue of the doctrine of equitable convertion, for purposes of dower in the surplus. McArthur v. Franklin, 15 Ohio St. 493 ; Titus v. Neilson, 5 Johns. Ch. 452 ; Denton v. Nanny, 8 Barb. 618, 625, 6; Taylor v. Fowler, 18 Ohio, 567 ; Matthews v. Dur
      
      yee, 45 Barb. 69 ; Hawley v. Bradford, 9 Paige, 200; Tabele v. Tabele, 1 Johns. Ch. 45 ; 1 Scribner on Dower, 478-481, §§ 26-30.
    The fact that the j udicial sale of the m ortgage premises took place before the death of the husband, does not defeat the wife’s right to be endowed of the surplus proceeds of the sale. Her contingent right to be thus endowed depended, not upon the life or death of the husband, but upon the fact of his seizen during covertui’e. Her contingent right became absolute upon his death. The surplus proceeds then stood in the place of the surplus land.
    The incidental and parenthetical remark of Chancellor Kent in Titus v. Neilson (5 Johns. Ch. 457), that the wife “would have had no claim upon the proceeds, after the satisfaction of the first mortgage, if her husband had been living,” is a dictum merely. “ That the wife would have had no present claim, had the husband been living, was probably all the chancellor meant to say. * * * The expression is not, therefore, entitled to- the weight of authority.” See Denton v. Nanny, 8 Barb. 627-8, in which the expression of Chancellor Kent was disregarded as authority, and a contrary holding made in a case directly presenting the question.
    A similar dictum. was announced in Taylor v. Fowler (18 Ohio, 567), by Judge Hitchcock. Possibly one dictum was taken as a precedent for the other, thus showing the danger of following any dictum, however distinguished the source.
    Where such surplus proceeds are in court to be disposed of by order of court in the lifetime of the husband, and, therefore, before the contingent right of dower has become absolute, some question has arisen whether courts of chancery, “ in the exercise of their odinary equity jurisdiction, are clothed with the power to make an order of the character entered in the case ” of Denton v. Nanny (8 Barb. 618), in which the supreme court of New York, in an elaborate opinion, sustained the claim of the wife to have a proportion of the residuum of the sale invested in such manner as would secure to her the enjoyment of her dower interest, 
      in the event she survived her husband” (1 Scribner on Dower, 479, 480, § 30); and it is only in regard to that question that Mr. Scribner suggests whether some legislative authority is not necessary to a legitimate exercise of the power to make such an order while the husband is living. But in the present case no such difficulty or question presents itself, for Mrs. Hinton is now a widow, and her contingent right to be endowed of the surplus has become absolute.
    
    Nothing has occurred in the case to bar Mrs. Hinton’s right of dower in the surplus proceeds of the sale, or to make it inequitable to enforce that right.
    The petition of the State Bank to foreclose the mortgage, did not purport to affect Mrs. Hinton’s dower interest, farther than was necessary to satisfy the mortgage debt and costs. Neither the petition nor any answer in the case, notified her that her right to dower in any surplus money was, or was to be, questioned. Powers, Williams and Collins, so far as this surplus money is concerned, stood, as to it, and as to Otho Hinton, as his heirs or administrator would have stood.
    The portion of the surplus money ordered by the court to be paid to Powers and Williams, was so ordered on the ground that they each owned one-fourth of Otho Hinton’s-equity of redemption. They now hold it as Hinton’s heirs or administrator would hold it. They are parties in the case — are in court with the money in their hands — money that represents, in part, the right of dower, and, in part, the fee. They should be required to refund enough of it to satisfy the widow’s dower in at least that portion of the surplus thus paid to them. If they should be required so to do, they lose nothing they ever paid for.. Matthews v. Duryee, 45 Barb. 69.
    The mere fact of such order and payment does not make the question of Mrs. Hinton’s right res adjudícala, for the reason that the question was never presented to the court.
    The other half of the surplus money is still in court. It has never been paid, or ordered to be paid to Collins, or any one else. That fund, at least, is subject to the widow’s right of dower.
    
      If Powers and Williams be not required to refund, then the court should allow to the widow full dower in the whole surplus proceeds, out of the moiety still in court. It was as much the duty of Collins, as it was the duty of Mrs. Hinton, to resist the distribution of the surplus fund until the paramount right to dower was fully provided for.
    
      Oar per & Van Deman and W. P. Reid for Powers, Williams and Collin’s adm’r :
    The common pleas had before it fully the parties and the subject-matter ; and, on confirmation of the sale, made a final order and distribution of the proceeds, so far as Powers and Williams were concerned, and, indeed, so far as all were concerned as to anything involving Mrs. Hinton’s rights; the share of Collins being left open only as to certain specific questions among defendants other than Mrs. Hinton. As to all else the case was euded — was res adjudícala. All this in Hinton’s lifetime.
    
    During Hinton’s lifetime our clients became the owners and holders of the whole estate in the premises. Taylor v. Fowler, 18 Ohio, 569.
    Mrs. Hinton does not seek to vacate or set aside the order and decree of final distribution. Her answer and cross-petition, is, virtually, a new proceeding, based upon the fact of her widowhood. We suggest whether the final decree can be thus collaterally attacked.
    The surplus, after paying the mortgage, went, in Hinton’s lifetime, to the persons to whom he had assigned it; and she cannot now get a share in that surplus as fot dower. She released her dower in the whole land mortgaged and sold under the mortgage. Any objection that she should not be cut off by the decree must precede the decree. The purchaser took a complete title to all the land. The claim made would require the purchaser to see to the application of the purchase money. Hinton, or those who stood in his place, got the benefit of this surplus. It was personalty.
    A wife may be divested of her dower by operation of law merely. Smiley v. Wright, 2 Ohio, 506, 508 ; but in the present case she loses it by her own act.
    Dower is a statutory allowance in land. Gregg v. Weaver, 6 Ohio St. 547 ; S. & C. 518. It is called a “ legal right.” 15 Ohio St. 507.
    She having deeded the laud away, it — the land — is dis* charged of dower. Frische v. Cramer, 16 Ohio, 125, 137, 139 ; St. Clair v. Morris, 9 Ohio, 17.
    This being the case, the persons to whom the money resulting from the sale belonged — to whom Hinton paid it —who stood in his place in the right to receive and retain it, are not bound to refund any part of it to her. Hands v. Kendall, 15 Ohio, 671, et seq., is a case strongly in point. Hinton’s equity of redemption united with the actual legal title of the mortgagee, during his lifetime, in these defendants, or those under whom they claim. There being no equity of redemption in existence, the widow cannot get the proceeds of it or follow the proceeds.
    The right to redeem has never been demanded in the case.
    A dower interest cannot be conferred by a chancellor, on general grounds of equity jurisdiction. It certainly cannot be given out of personalty. It is solely by virtue of the statute that it can be demanded. The statute gives no such authority as is claimed here.
    The doctrine of equitable conversion is wholly inapplicable.
    Hinton did not die seized of the legal title to the land, and his wife had parted with dower in it under the first statutoiy head of dower; nor did he die seized of an equity of any kind in this land.
    In support of our views of the case we cite : Taylor v. Fowler, 18 Ohio, 569 ; Peacock v. Frost, 4 Edwards’ Ch. 678, 695 ; Bell v. The Mayor of New York, 10 Paige, Ch. 49; Titus v. Neilson, 5 Johns. Ch. 452, 457; Wilson et al. v. Davidson, 2 Robinson’s Rep. (Va.) 384, 409, 410 ; Newhall and wife v. Lynn Savings Bank et al, 10 Mass. 430-432 ; 1 Scribner on Dower, 480, 481.
    The question of Mrs. Hinton’s dower was necessarily before the court. Even if that question was not raised by the pleadings, the decree is obligatory and final.
    Our claim, then, is, that Mrs. Hinton, at the time of foreclosure and sale, could not demand any allowance for contingent right of dower; that she did not make such demand ; that, after Hinton’s death, she could not be endowed of the lauds, nor of the surplus arising from the sale, after paying the mortgage.
   West, J.

I. It is a well settled doctrine, that a widow, who, during coverture, joined her husband in a mortgage of realty, whereof he had inheritable seizin, is dowable, in equity,- of the surplus moneys arising from a judicial sale under a decree of foreclosure thereon against her, which may remain after satisfying the mortgage debt and the proper costs incident to such foreclosure. Costs incurred in resisting her right, or in litigating the claims of other parties, will not be considered in estimating her dowable interest. Titus v. Neilson, 5 Johns. Ch. 452; Rands v. Kendall, 15 Ohio, 671; Taylor v. Fowler, 18 Ohio, 567 ; 1 Scribner on on Dower, 478-81.

II. But she is dowable in such case of the surplus only, and not as of the entire proceeds of the sale, to be satisfied out of such surplus. Her inchoate right become, extinguished by foreclosure and judicial sale, to the extent that the proceeds thereof are appropriated to the satisfaction of such debt and costs. Hawley v. Bradford, 9 Paige, 200; Bell v. New York, 10 Paige, 49.

III. If a husband, with whom his wife joins in a mortgage of his realty, wherein she had inchoate right of dower, dies after judicial sale under a decree of foreclosure thereon against them, she is dowable of the surplus to the extent that her right can be equitably discharged from the portion thereof which shall not, previous to its assertion by her, have passed by final decree from the control of the chancellor.

The dicta of Chancellor Kent in Titus v. Neilson, and of Hitchcock, Justice, in Taylor v. Fowler, are relied on by counsel resisting this doctrine, as authorities to the effect that a judicial sale, in such case, during the life of the husband, ipso facto works an extinguishment of the wife’s inchoate right to be endowed of the surplus, or any part thereof.

The meaning which this interpretation attributes to the language of those dicta could not have been intended. They were utterances by way of comment and illustration, not authoritative-expositions of points involved. The term sale was, undoubtedly, employed thez-ein, in its comprehensive and popular sense, to signify a concluded proceeding, instituted for the purpose of, and the chief consequence of which was, a judicial sale. The term, which strictly interpreted signified a part, was employed izi a sense comprehending the entire proceeding, when closed up by final decree. A judicial foreclosure thus finally concluded by sale and distribution,-during the husband’s life, without objection interposed, or protection asked by the wife, under a decree to which she is a party, doubtless works a complete bar of her right.

The proceediizg in the case before us had not been terminated-by final distribution, when the inchoate right of Mrs. Hinton became absolute by the death of her husband. A moiety of the surplus is subject to the chancellor’s control. The proceeding is one of purely equitable cogziizazice. Her right, springing into full vitality and absoluteness, while the subject-matter of it remained so subject, attaches to, and must be enforced against it, as a paramount equity which, in the forum of conscience, cannot be ignored or repelled.

That Mrs. Hinton would have been dowable, if her right had become absolute after decree and before the sale, is not seriously controverted. But no sound reason exists for giving to the fact of sale an effect which could not result from the fact of the decree before sale. Her equity is as strong at one time as at the other. The subject-matter of the equity is as completely within the power of the chancellor after sale as before. The rights of others cannot suffer greater prejudice by respecting it in the one contingency than in the other. As to the $4,221.20, part of said surplus, now in the sheriff’s hands, Mrs. Hinton is not concluded.

IV. Can Powers and Williams be called on to refund ? The entire portion of the surplus to which they severally asserted claim had been distributed to'them bjr final decree, in the life of Otho Hinton, without demur or objection by Mrs. Hinton. Whether a demand by her during coverture, for the protection of her inchoate right to be equitably endowed, would have availed her, we are not now required to consider. The courts of New York in Denton v. Nanny, 8 Barb. 618, and Matthews v. Duryea, 45 Barb. 69, have gone to this extent. Mr. Scribner, in his work on Dower, (1 vol. 480, § 30,) recognizes the justice of the doctrine, but doubts the power of chancery in the exercise of its ordinary j urisdiction to enforce it. But this question is not now involved. A final decree of a competent court concludes the parties. Powers and Williams are entrenched behind such decree. The portion of the surplus distributed to them, has passed irrevocably from the chancellor’s control. Eor this reason, not by the fact of sale, is he rendered powerless. As to them the prayer of the cross-petition must be denied.

It would be inequitable to endow Mrs. Hinton as of the entire surplus out of Collins’ moiety remaining subject to decree. If there had been but a single claimant of the surplus, or if rateable proportions of the interests of several claimants were reserved, it might be otherwise. But the interests of Collins, Powers and Williams being distinct, Mrs. Hinton will not be endowed of the moiety decreed to the latter two at the expense and to the prejudice of the former.

A decree endowing her of the $4,221.20, now in the hands of the sheriff of Delaware county, will be entered, but without interest, unless interest has accumulated thereon ; and the cause will be remanded.

Welch C. J., and White, Day and McIlvaine, JJm concurred.  