
    *Matilda Carter v. Timothy Walker.
    If A, his wife not joining, execute a mortgage of lands to B, with power in tie mortgage to C to sell the property to pay the mortgage debt, if default he made, and A and wife afterward, and before the execution of such power, make a deed of such premises to D, with proper release of dower, the purchaser at a judicial sale of said premises, under proceedings subsequently instituted by parties holding under the original mortgage and the power therein contained, against A and D, takes all the title of A and D, and holds the property discharged of dower.
    The purchaser, under judicial proceedings, foreclosing a mortgage and selling the mortgaged premises, takes the complete title of both mortgagor and mortgagee.
    It is not, on the petition of A’s widow for dower, a valid objection to such proceedings, that the bill asserting the mortgage under which the property was sold, was filed during the life of D, who was made a party, and that upon his death, pending the suit, his heirs were not made parties, and the answer was filed by his administrator. Though it was error in the court to decree without making the heirs parties, yet jurisdiction having been once obtained by the service of process on D himself, the subsequent proceedings, although erroneous, were not void.
    Nor does the error of the court in ordering the surplus, after paying the mortgage to he taken by the administrator, when it should have gone to the heirs, invalidate the proceedings. Until reversed, the proceedings, though thus erroneous, can not be disregarded.
    Petition in chancery for dower.
    The facts necessary to be stated, are the following:
    Ephraim Carter and complainant were married in 1808. During coverture, the said Ephraim was seized of the east half of in-lot No. 227, in the city of Cincinnati.
    In January, 1831, Ephraim Carter (his wife not joining) mortgaged the premises to Matthew Lawler, empowering Davis B. Lawler, by a clause of the mortgage, to sell the property on default of payment of the mortgage debt.
    In June, 1831, the complainant joined her husband in a deed of the same property, subject to the Lawler mortgage, to Henry Gassaway.
    Matthew Lawler, who died after the execution of the mortgage and before the 20th of September, 1833 (the papers in the cause do not show precisely when), by his last will devised, *among other things, the said mortgage and notes secured by it to Davis B. Lawler, in trust, “ to pay over the income thereof to Ann Lawler during her life, then to Ann L. Walker during her life, and then convey the same in fee simple to her issue.” In 1833, Davis B. Lawler, under the power in the mortgage, sold to Samuel E. Foote. In the same year-—September 2l)th—Poote conveyed in trust to Davis B. Lawler for Ann Lawler. Ann L. Walker died in October, 1834, leaving Thomas B. Walker her issue. Ann Lawler died in March, 1835, whereupon Davis B. Lawler, in final execution of his trust, conveyed to said Thomas B. Walker.
    In 1835, Thomas B. Walker, by Timothy Walker, his next friend, filed a bill in chancery, in the court of common pleas, against Ephraim Carter, Henry Gassaway, and others, setting forth the facts above stated as to the acquisition of complainant’s title, and averring, among other things, that at the time the said Davis B. Lawler made the said sale as attorney, and afterward repurchased as trustee, his sole object was to obtain possession of said premises for the benefit of the trust fund, and that he intended, for all other purposes, still to hold it subject to redemption by the said mortgagor or his assigns. The bill shows the pendency of an action of ejectment, brought by the heirs of Thomas Carter, deceased, for part of the premises. It prays for an injunction against the plaintiff’s lessors in that action, and for answer by Gassaway, etc. It also prays that the sale and purchase by Davis B. Lawler may beset aside, and the promises sold to pay the Carter debt; “or should this be refused,” continues the bill, “ that this petitioner may be quieted in his title and possession of the said east half of lot No.227,” etc.
    After bill filed, and before answer and decree, Gassaway died. His administrator put in an answer, setting up the deed from Carter to Gassaway, and a mortgage back from Gassaway to Carter, and claiming an interest in the property to the extent of about #503.75, which he alleged Gassaway paid Carter.
    *The heir of Gassaway were not made parties to this bill. Neither was the complainant in the present bill made party to the bill of Walker.
    The decree of the court in the cause of Walker v. Carter, Gassaway, and others, enjoins the heirs of Thomas Carter; finds the legal title in complainant; finds, by consent of parties, that the deed under the power of attorney was for possession only, and not intended to cut off the equity of Carter; and orders the property to be sold to pay the mortgage debt first mentioned.
    The defendant in the present cause purchased under this decree.
    Ephraim Carter died in 1848.
    
      A. N. Riddle and J. H. Clemmer, for complainant.
    
      Charles P. James, for defendant.
   Caldwell, J.

The defendant sets up the deed of Carter and wife, and the proceedings and sale of the property under the decree of the court, as a bar to the claim of dower. To this it is replied, that that conveyance and those proceedings created no privity between Gassaway and the defendant.

That Gassaway, by his deed from Carter and wife, had a title to the land freed from the claim of dower, and subject only to the incumbrance of the mortgage to Lawler, can not be doubted. ■Gassaway, as part of the consideration of the purchase, as expressed both in the deed from Carter and wife to Gassaway and in the mortgage from Gassaway to Carter, had agreed to pay off the Lawler mortgage.

It is not necessary that we shall determine precisely what was the effect of the sale of the property by Davis B. Lawler, under the authority contained in the mortgage. That sale is alleged in the bill setting up the mortgage, to have been merely to obtain possession of the property without interfering with the right of redemption, and the court so find the fact to be.

*That sale invested Thomas B. Walker, by virtue of the transfers made under it, at least with all the rights of Matthew Lawler, the original mortgagee. Now, what was the character and effect of the judicial proceeding under which the property was sold? Walker held the legal title, and Gassaway held the equity of redemption, and held it freed from any claim of the complainant for dower. These proceedings wore commenced for the purpose of foreclosing the equity of redemption, and appropriating the land to the payment of the mortgage debt. Gassaway held a complete title to the land, freed from every incumbrance or contingency except only the incumbrance of the mortgage; but all his right and title he held subject to the mortgage. Walker had a right to have Gassaway’s entire interest in the property sold, and the proceeds applied to the payment of the mortgage debt. Gassaway, as the court decreed, was entitled to the surplus after the payment of the mortgage; he, then, was interested in having the property sell for the highest price. This could only be obtained by having sold, and vesting in the purchaser, his whole right and title, without incumbrance or reservation. If the property had been sold with the incumbrance of dower resting on it, it would have brought much less than if sold free from that incumbrance. Gassaway would have suffered the entire loss of such diminution, although, when he purchased the property, he had paid for and received a release of dower. The court could not have sold, nor did they attempt to sell, less than Gassaway’s entire right and title in the property, with all its incidents. What interest, then, was sold and passed to the purchaser? The entire interest of both Walker and Gassaway.—of mortgagor and mortgagee—a complete title, freed from any claim of dower.

It is said, however, that the complainant was not a party to the judicial proceedings nor to the mortgage, and is therefore not barred by the decree.

It is not by the force of the judicial proceedings that she can be deprived of her right of dower, but by her release to *Gassaway. She would not have been a proper party to the proceeding. Grantors are never necessary parties to a suit seeking to-charge the lands of their grantees, unless it appear that they have, or may have, some remaining interest.

It is said, however, that the title of Gassaway still remains in his heirs. The bill asserting the mortgage under which the property was sold, was filed during the lifetime of Gassaway. He was made a party defendant. During the pendency of the suit he died ; his heirs were not made parties, and the answer was filed by his administrator. It was clearly error in the court to j>roceed to decree without making the heirs of Gassaway parties after his death; but, the court having once obtained jurisdiction in the case by the service of process on Gassaway, the subsequent proceedings,' although erroneous, are not void. There are other errors apparent on the record. The court decreed that the surplus should be paid to the administrator of Gassaway, in place of his heirs; but. this error, like the other, does not render the proceedings void. The proceeding was in several respects novel; it was, however, substantially one to foreclose a mortgage. The court find that a mortgage existed; find the amount due thereon; order a sale of the mortgaged premises; and the sale, until reversed, must be held to have passed to the purchaser the entire interest in the property of both mortgagor and mortgagee. The majority of the court think that the privity between the defendant and Gassaway is complete. For not only was Gassaway the owner of the equity of redemption, but he had covenanted in .his mortgage to Carter to secure the purchase money, to pay off the Lawler mortgage, thus-rendering himself personally liable for the liquidation of that debt.

I speak merely for myself, and not for the majority of the court, when I say, that I do not see why, when dower has boon absolutely released, it can ever be reasserted, merely because the tenant in possession does not connect himself in privity with the person to whom the release was given. It would appear to me reasonable, that where a person by conveyance has a complete title vested in him, he has a right to *hold the property, or to abandon it at his pleasure; and that, whilst he has the title thus vested in him, he is the only person that can assert any valid claim to it. And this principle, in my opinion, would apply as well to the right of dower as any other interest in land. For, although it be an inchoate and contingent interest, yet it can be as completely released as any other. And whether we call the act of divesting, the release of an interest, or the extinguishment of a right, can have no-effect upon this question. The doctrine requiring privity between the releasee and the tenant in possession to bar dower, might be-attended with singular results in its application. Under this rule, if the person holding the title were to get out of possession, and the land come to the possession of another, all the dower interest that had existed would revive against it. In this way, a dozen dower interests might at once light upon the land, all to be divested the moment the person holding the title should assert his-right.

We have been referred to the cases of Robinson v. Bates, 3 Met. 40; Bixby v. Bennett, 11 Mass. 298; 3 How. 205, and other authorities, where this doctrine of privity is asserted. It would be high presumption in me to say, that the decisions given by those highly respectable courts, were not illustrated by sound reasons; but I -can not be charged with presumption, when I say that it is greatly .above my comprehension to see the force of the reasoning on which those decisions are founded. A majority of the court are of opinion, that by the release to Gassaway, and the connection of the defendant with his title, the complainant is barred of any right of dower in the premises.

The bill will therefore be dismissed.

Corwin, C. L, dissented.  