
    Killinger against Reidenhauer administrator of Smith.
    Saturday, May 21.
    If the hus*» band give a fraudulent mortgage to defeat the wife’s right of dower, it is void as to that right and as to creditors;
    Rut the mortgagor cannot set up the fraud, nor his represent** atives after his decease;
    In Error.
    ERROR to the Court of Common Pleas of Lebanon.
    
    
      Michaeli Killinger, the plaintiff below, brought a scire facias upon a mortgage given by the intestate, -Peter Smith, in his life time, on the 2d August, 1819. The defendant pleaded payment, and for further plea, that the mortgage was obtained through fraud, covin, and deceit. Replication, non solvit, and issues.
    On the trial, the defendant offered to prove that Dr. Peter Smith, the intestate, died, leaving a widow, Anna Sibilla Smith, and that he left no heirs of known kindred, except his said wife, and that after the said mortgage was given and executed, the plaintiff, Michael Killinger, declared that there was no consideration for the same; that the said Peter Smith, the mortgagor, had given the said mortgage for the sole purpose of preventing the said Anna S. Smith from getting any part of the mortgaged premises ; that the mortgagor was not indebted to him at the time the said mortgage was executed, and that the said Anna S. Smith was the wife oí Dr. Peter Smith at the time the mortgage was executed. To this evidence the plaintiff objected; but the Court received it, and the plaintiff excepted to their opinion.
    The counsel for the plaintiff requested the Court to charge the jury,
    1st. That a mortgage, next to an assurance by record, is the highest evidence of a debt known to the law, and that the money, to secure the payment of which it is given, must be considered dpe, unless payment be shewn by the defendant, or a release and discharge by the plaintiff.
    
      Answer of the Court.—This is true with regard to a bona fide mortgage, but a fraudulent mortgage will be void as to the persons intended to be defrauded.
    2d. That payment of a mortgage cannot be presumed from the relative situation of mortgagor and mortgagee, and tjiat nothing less than payment or the acknowledgment of the plaintiff having been satisfied, will discharge the mortgage.
    Answer.—The opinion on the first point is an answer to this.
    3d. That the defendant, the administrator of Dr. Peter Smith, cannot impeach the mortgage for frauds alleged to have been committed by his intestate.
    Answer.—In this suit on the mortgage, to protect the interest of the widow, evidence of fraud may be given.
    
      4. That Dr. George Reidenhauer, the defendant, and the administrator, is bound by the conduct of the intestate, and never can set up the fraud of Dr. Peter Smith as a defence to this suit.
    Answer.—The opinion on the third point will be an answer to this.
    5th. The rights of the alleged widow of Dr. Peter Smith, do not come into judgment in this suit, and, therefore, if Mrs. Smith could impugn the mortgage, it must be when she shall be a party to the record.
    Answer.—The opinion on the third point is an answer tP this point.
    
      To these opinions of the Court, so far as they were contrary to the propositions aforesaid, the plaintiff excepted.
    The Court further charged the jury, that if, from the evidence, they should be of opinion that the mortgage was a fraudulent transaction, between the mortgagor and mortgagee, then the plaintiff ought not to recover. For, as respects the then wife, and now widow, of the mortgagor, the fraud would vitiate the contract. But they ought to be well satisfied from the evidence that it was fraudulent; for fraud is not to be presumed.
    To this opinion also, the plaintiff excepted.
    The jury found a verdict for the defendant, and judgment was entered accordingly.
    
      Weidman and Norris, for the plaintiff in error,
    objected that no issue was joined on the plea of fraud. They further contended, that though the mortgage may have been fraudulent and void as to the widow, yet the administrator could not defend himself on the fraud of his intestate; for a fraudulent deed bound the party himself and his representatives. They cited Simon v. Gibson, 1 Teates, 291. Hartley v. M1-Anulty, 4 Teates, 95. Hawes v. Loader, Cro. Jac. 270. Osborne v. Moss, 7 Johns. 161. Reichartv. Castator, 5 Binn. 109.
    
      Wright, contra.
    The plea of fraud may be considered merely as notice of special matter under the plea of payment. On the plea of payment, evidence might be given that no consideration was paid, and, therefore, the mortgage was fraudulent. The mortgage must be good or bad in toto. It conveys only an equitable estate, and equity will not decree in favour of fraud.
   The opinion of the Court was delivered by

Duncan, J.

It will be the exercise of great liberality to consider the plea of fraud, merely as notice of special matter, under the plea of payment, and not intended as a distinct plea ; for it was so to be taken, there being no issue joined; there would have been a mistrial; but admitting it to be special matter, the questions are, Could the Court regard the interest of the widow ? If they could, did the evidence destroy the mortgage in to to, or partially, so far as respects the widow’s right to dower at common law ?

Dower, at the common law, must be distinguished from the accretions to it under our intestate acts, occasioned by the death of the husband intestate, without children, or without heirs, or known kindred. In the first case, the widow is entitled to a moiety during life; in the latter, she takes the whole escheated estate; but in both the husband must die seised and intestate. He may dispose of all without the concurrence of the wife, by deed or by will, subject to the widow’s dower at common law. By the marriage, the widow has an initiate right to the third part of all the lands and tenements the husband was seised of at any time during the coverture.' At the common law, the husband can, by no act of his own, strip her of this right; it is not liable for his debts ; he cannot, by a mortgage, charge them on it. This initiate title of the wife, can be barred only by her levying a fine, or suffering a recovery. In Pennsylvania, where lands are considered as chattels for payment of debts, the husband’s lands may be levied on and sold, and the wife lose her dower. So here, a mortgage given by the husband will bind the dower right; all the interest may be levied on, and sold on a levari facias, without regard to the wife’s right of dower; but a mere voluntary mortgage, (much less a fraudulent one, made for the purpose of defeating the inchoate right of the wife,) cannot bind her, for this would be in fraud of the law, and in fraud of the right accrued directly on the marriage; initiate on the moment of marriage, consummate on the death of the husband ; a right much respected in law; highly favoured, next to liberty and life.

The evidence in this case,’if believed by the jury, established that this mortgage was not given for any debt of the husband, but for the sole purpose of defeating his wife’s dower right. A Court of chancery would grant relief; would enjoin the mortgagee from proceeding to a judgment and sale of the whole mortgaged premises, but would suffer Him to sell subject to the widow’s right of dower. Lest there should be a failure of justice, from necessity, which is the foundation of the exercise of most of the chancery powers in our Courts, this equitable interposition must be assumed, and the husband prevented from depriving the wife of rights conferred on her by the matrimonial contract, and marriage endowment, at his pleasure, by a fictitious mortgage ; for a judicial sale on a mortgage would endanger her right, the proceeding being in rem; a condemnation and decree for the sale of the whole, for a debt of the husband, ascertained by a verdict and judgment; such a sale would vest in a fair purchase the whole interest.

I would not hesitate to adopt a course on the scire facias, which would let the widow in to defend pro interesse sua, and submit to the jury, whether the debt was a real debt of the husband, and, so far as it was a real debt, to find a verdict for that sum, and the judgment would be modified by the Court, so as to give to the mortgagee a lien on the whole interest as to the real debt, and for the whole amount subject to the widow’s thirds; and to submit to them, tyhether the mortgage was not fraudulently given, without any consideration, and for, the purpose of defeating the wife, with instructions, that if they found it was, then to find a verdict for the plaintiff, subject'to the widow’s dower. For if the mortgage was a voluntary one, gratuitously given to the mortgagee, without any imposition on the mortgagor, it would bind him and his representatives, though it would not bind the dower right or the rights of creditors. If it was fraudulently given to defeat the dower right, it would be fraudulent and void as to that right and the right of creditors ; but the mortgagor could not set up the fraud ; fraud is irrevocable by him who commits it, and those who claim as his heirs and representatives. The deed would be void as to the person intended to be defrauded, but good against the grantor and all claiming under him. Reichart v. Castator, 5 Binn. 109. This mortgage, though fraudulent on the rights of the widow, would be valid as between the mortgagor and his representatives and the mortgagee ; but the mortgage would not be fraudulent as to any other claim of the widow than her right to one-third, her matrimonial endowment, for the contingent increase under the intestate acts, was at his perfect disposition ; and so far as he disposed of his estate, the contingency never happened on which those rights depended. A man can never be said to commit a fraud on the contingent rights of others where it depends on his own act whether they shall ever ex» ist. The rights of this woman, other than her common law dower, he could defeat in the same manner he could the succession of his heirs.

In answer to the points made on the trial by the plaintiff in error, the Court seem to have confined their objection to the recovery on the mortgage, to the widow’s rights; but in the general charge, they expressed themselves in such terms as might lead the jury to believe that if, as respected the widow, they found the transaction fraudulent, the whole contract and mortgage were wholly vitiated and rendered void; for so the jury found.

Now that must have been founded on the principle that the fraud on the wife’s right rendered the mortgage void, as to all the¡ world, or upon the principle, that the wife, had it not been for this mortgage, on his death without heirs or known kindred, would have enjoyed the whole, and, therefore, as to the whole, this mortgage must be put out of her way. In either case, the mortgage would not be void in toto. The charge of the Court might have led the jury into this error; and in considering the whole, the answers of the Court to the questions put, and the charge, it rather appears that the opinion of the Court was, that the mortgage had no binding effect, and conveyed no interest to the mortgagee.

Judgment reversed, and a venire facias de novo awarded.  