
    Edwin Smith and Wire v. Freeman P. Handy.
    If a married woman unite with her husband in the granting part of a deed conveying his land, she is thereby barred of her right of dower, as against all those who claim under such deed.
    This is a bill of review, reserved in Cuyahoga county.
    The bill was originally filed in the court of common pleas of that county, to reverse a decree of that court. It comes into this court by appeal from the court of common pleas, where it was dismissed.
    The facts of the case, so far as is necessary for a proper understanding of the points decided, are as follows:
    On February 6, 1843,' the president, directors, and company of the Commercial Bank of Lake Erie filed a bill in chancery, seeking, among other things, to obtain a decree for the sale of certain mortgaged premises, in the bill set forth. The mortgage deed, which is the foundation of this proceeding, purports to have been executed by James T. Clarke, John W. Willey, and Laura M'. Willey, his wife, *now Laura M. Smith, on October 9,1837. It commences in the usual form, as follows: “Know ye, that James T. Clarke, and John W. Willey, and Laura M. Willey, wife of said J. W. Willey, all of Cleveland, Cuyahoga county, Ohio, for the consideration of $50,000, received to our full satisfaction of the president, directors, and company of the Commercial Bank of Lake Erie, do give, grant, bargain, sell, and confirm unto the said president, directors, and company the following tracts of land,” etc.
    Then follows a description of sixteen separate parcels of land which are conveyed by the deed. Following the description of the lands are the usual covenants, entered into by James T. Clarke and John W. Willey. Mrs. Willey does not join in those covenants. Nor does she in the close of the deed, nor in any part of it, expressly, or in so many words, release or relinquish her right of dower.
    The deed is subject to a condition that, upon the payment to the complainants of a debt due to them from Clarke and Willey, amounting to $52,000, it shall be void.
    This deed is signed and sealed by the several grantors, and was acknowledged before a notary public. The form of this acknowledgment is as follows:
    “ Cleveland,- October 9, 1837.
    “The State of Ohio, Cuyahoga County : Personally appeared James T. Clarke, John W. Willey, and Laura M. Willey, his wife, who acknowledged that they did sign and seal the foregoing instrument, and that tho same is their free act and deed. I further certify that I did examine the said Laura M. Willey, separate and apart from her husband, and did then and there make known to her tho contents of the foregoing instrument, and upon that examination she declared that she did voluntarily sign, seal, and acknowledge the same, and that she was satisfied therewith.”
    It was further stated in the bill, that there were judgment liens upon said lands, which attached prior to the execution *of said mortgage, but that executions upon said judgments had not.boon levied within one year from the date of the rendition of the same. That other mortgages, which were set forth, and which were executed subsequent to the date of complainants’ mortgage, covered lands which wore not embraced in said mortgage, but upon which said prior judgments operated as liens. It was also stated that there were judgments junior in point of time to the mortgage of complainants, and tho other mortgages named, upon some of which executions have been taken out and levied upon portions of the land covered by tho mortgages, within the year after tho rendition of those judgments.
    The prayer of. the bill was, that the older judgments might bo satisfied from tho lands last mortgaged, and that tho lands covered by complainants’ mortgage might be sold and the avails applied to the satisfaction of the debt secured by that mortgage.
    At the time of filing this bill, John W. Willey was dead. James T. Clarke, Laura M. Willey, the heirs and administrators of the said John W. Willey, the judgment creditors of Clarke and Willey' and said junior mortgagees, were made defendants. Several of these defendants answered.
    Mrs. Willey, in her answer, admits that Clarke and Willey were seized in fee of tho lands included in the mortgage at tho date of the deed; denies that she ever pretended to be, or was in fact ■seized in fee of said land, or any part thereof, and says that, prior ■to the death of her husband, she had no estate in said land; admits that the deed bears her signature and seal, but denies that its contents were ever made known to her by the officer who took her acknowledgment, or by any other person, or that she was ever examined separate and apart from her husband in relation to acknowledging the deed ; denies that she ever signed and sealed a deed conveying or releasing to complainants her right of dower in the lands aforesaid, or that she has, to her knowledge, done any act whereby she can be barred of the same as against the complainants ; and she prays that in the further *proceedings in the case her interests may be protected.
    For the purposes of this case, it is not necessary to recapitulate the other answers.
    At the November term, 1844, of the court of common pleas, the case came on for hearing, and a decree was made. In this decree the court find the amount due upon the judgments which were prior liens upon the lands, the execution and dates of the junior mortgages referred to in the bill, that there was due upon the mortgage debt to complainants the sum of $62,891.74. “ The court further find, that the defendant, Laura M. Willey, joined with her husband, the said John W. Willey, in the due execution, acknowledgment, and delivery of said mortgage deed to the complainants, with the intention of conveying her dower estate in said premises, and that she thereby conveyed her right of dower therein, subject to the conditions of said mortgage deed.” Whereupon the court decreed, that unless the said James T. Clarke, survivor of John W. Willey, should within twenty days pay the amounts found due to the elder judgment creditors, and to the complainants, the lands included in the several mortgages should be sold by a master; that the avails of the lands included in the junior mortgages, but not included in complainants’ mortgage, should be first applied to the satisfaction of the older judgments; that if the money made by the avails of said sale was not sufficient to satisfy said elder judgments, any balance which might remain due should be paid by the avails of the sale of the land embraced in complainants’ mortgage. That if said elder judgments should be satisfied by the sale of the lands included in the junior mortgages, the money made by the sale of the land embraced in complainants’ mortgage should be paid to complainants, and if any surplus remained after payment of complainants’ debt, the same should be brought into court to await its further order. And it was further decreed, that all the remaining defendants should be perpetually enjoined from setting up any right to the land, except in accordance with the decree.
    *To review this decree, this bill, was filed by Laura M. Willey, on March 18, 1845.
    The errors assigned are, first, “that said decree bars'and precludes the complainant in review from all right or title of dower in or to said mortgaged promises, whereas it appears, by said record and decree, that she did not expressly release her dower in the mortgaged premises, nor did she join with her husband in any of the covenants contained in the said mortgage.” Second, “that said decree is erroneous in this, that the said Commercial Bank is given a preference thereby over judgment creditors of the said John W. Willey, who recovered their judgments before the execution of said mortgage, and who setup no claim in said land, in opposition to the right of dower of the complainant.”
    Freeman P. Handy, as trustee of the Commercial Bank, is alone made defendant to this bill of review.
    Since the cause was appealed to this court, Laura M. Willey has intermarried with Edwin Smith, and at the last term of the court in Cuyahoga county, ho was made a party complainant.
    E. Wade and B. White, for the complainants in review:
    By agreement of counsel, the only question raised in this case is the right of the complainant to dower in lands claimed by her answer in the original suit.
    On October 9,1837, the following mortgage deod was executed: “Know ye, that we, James T. Clark, John W. Willey, and Laura M. Willey, in consideration, etc., received of the president, directors, and company of the Commercial Bank of Lake Erie, do give, grant, bargain, sell, and'confirm unto said president, etc., the following described lands.” ' There are covenants of warranty and seizin by Clark and John W. Willey; but the name of the complainant appears only as above in the granting part of the deed,, and the signs and seals. The acknowledgment is in the usual form.
    Is she barred of dower by the laws of Ohio? It can not *be too often repeated where the common law prevails to the exclusion of the civil, that dower is equally favored with liberty and life. Both the common law and the statutes of Ohio, have ever interfered in the alienation of the right of dower, not indeed to prevent it, but to take care that it be the free, unbiased act of the wife. This is right. By marriage, the identity of the wife is merged in that of the husband, while her property and her services are at his disposal. Where is the wrong in giving her a comfortable support from the estate her own hands have helped accumulate, although a grasping creditor insists on his “pound of flesh?” The courts of this state always have, and, we believe, always will give dower, unless prevented by some stern inflexible rule of law.
    Do we meet such a rule in this caso ?
    Our legislature has always recognized the estate of the wife in her own right, and her right of dower, as separate and different interests, and has pointed out a distinct mode for aliening each; the former to bo convoyed, the latter to be released—relinquished specifically.
    The first statute enabling the wife to convey her estate, or release her dower, is that of 1795. And here it is worthy of remark, that up to this time, the wife had no power to convoy any interest in land—sho was left whore the common law left her—powerless to bind herself by any deed. This law enacts, “that when any husband and wife shall hereafter incline to dispose and convoy the estate of the wife, or her right of, in, or to any lands, tenements, or hereditaments whatsoever, it shall and may be lawfnl to and for said husband and wife, to make, etc., any grant, bargain, and sale, lease, release, feoffment, deed, conveyance, or assurance in law whatsoever, for the lands,” etc. 1 Chase’s Stat. 187.
    It further provides that “ the wife shall be examined separate and apart from her husband,” and “ the full contents of such deed or conveyance made known” to her; and she should “declare that sho did voluntarily, and of her own free will and accord, seal, and as her act and deed, deliver said *deed or conveyance, without any coercion or compulsion of her said husband.”
    In this law wc find provision for conveying the estate of the wife, and also for releasing her contingent rights. The provision that the full contents of the deed shall be made known to her, runs through all our legislation on this subject. Why this clause, if general words of grant will divest the wife as well of her own estate as of any contingent interest in land? Such construction would render the clause of no effect; for every woman would know when she executed any deed with words of grant, that she had divested herself of every real or possible interest in lands so conveyed. The true construction, we apprehend, requires the magistrate examining the wife to say to her : “ These words, ‘we give, grant, and convey the following lands,’ will divest you of an estate in your right; but if the land to be conveyed is your husband’s, then these words are a mere assent on your part to his conveyance of it during your life, while the words, ‘I release and quitclaim my right of dower,’ will bar you of that interest.”
    The above statute was substantially re-enacted in 1805; and that of 1805 was repealed in 1818. By the last law, it was enacted “that where a husband and wife (she being eighteen years of age or upward), shall, within this state, execute any deed, mortgage, or other instrument of writing for the conveyance or incumbrance of the estate of the wife, or her right of dower to any lands,” etc. 2 Chase’s Stat. 1041. Hero again is the distinction made between the estate and the right of dower. In section 6 of this law, we find the following language: “And where the estate of the wife is to be conveyed, or a relinquishment of dower shall bo required to lands, etc., intended to be conveyed or sold by power of attorney,” etc. And again in the same section, such power of at torney shall “ be good and valid in law, and divest the wife of her estate or right of dower to the lands, etc., as effectually as if she had signed and acknowledged such deed, mortgage, or other instrument, *of writing, and had (thereby) conveyed her estate, or relinquished her right of dower to the premises.” Does not this clearly show that the legislature of that day, distinguished between the estate of the wife and her dower interest, and required the former to be conveyed by words of grant, and the latter to be released by name ? And this is in accordance with the usage that has always prevailed upon the Reserve. We have examined the records of Cuyahoga county,-and among a great number of deeds executed by the complainant with her husband, there is not one, except this in question, which does not contain an express relinquishment of dower.
    ' Our laws have conformed to this usage, which may have taken its rise in New England. In 7 Mass. 14, C. J. Parsons says : “ The usual mode bjt which a wife is joined, is by introducing her in the close of the deed, as expressly relinquishing all claim to dower in the premises sold.” So also says Mr. Justice Stoi’y. 3 Mason, 348.
    The statute of 1818 was repealed by that of February, 1820. The last statute re-enacts the same provisions relative to the deed of husband and wife, and to the power of attorney by the wife for selling lands. The same distinctions above adverted to are retained. 2 Chase’s Stat. 1139.
    The law of February, 1831, repeals all former laws on the subject, and is still inforce. Section 2 of this law provides, that when a husband and wife shall execute any deed, mortgage, or other instrument for the conveyance or incumbrance of the estate of the wife, or her right of dower in any land, tenement, or hereditament situate within this state, such deed, mortgage, or other instrument of writing, shall be signed and sealed by the husband and wife; and such signing and sealing shall be attested and acknowledged in the manner prescribed in section 1 of this act; and in addition thereto, the officers before whom such acknowledgment shall be made, shall examine the wife separate and apart from her husband, and shall read, or ^otherwise make known to her the contents of such deed, mortgage, etc.; and if upon such separate examination, she shall declare that she did voluntarily sign, etc.
    We here find the estate and the contingent right still recognized as distinct, the one from the other. In section 3 we find the manner of alioning each interest under the above section 2 plainly described in the following words: “And when the estate of the wife is to be conveyed by attorney, or her right-of dower in any lands, tenements, or hereditaments relinquished, she shall join -her husband in the execution of a power of attorney for that purpose.”
    What purpose? Why, to give, grant, bargain, sell, and confirm her own estate, or join her husband to release, relinquish dower. And further, “ such power shall bo executed, attested, and acknowledged in all respects in conformity with the provisions of section 2 of this act.” Suppose any lawyer in the state were requested to draw up a power of attorney from a feme covert, to alien her dower interest, or her own estate. Would he not, in the latter case, authorize the attorney to sell, grant, convey the land ? And in the former would he not authorize him to quitclaim, release her right of dower in the land, expressly naming it? He must do this, for so the statute requires. And if he must do it in the power of attorney, -he must do it in a deed, for the one must be ‘■'•executed in all respects in conformity” to the other.
    
      Let us now examine for a moment the law relating to the dower.
    The first is that of 1804, which provides that “the widow shall have the use of. one-third part of the land, etc., unless she shall have joined her husband in the conveyance.” 1 Chase, 395.
    This law is like the Mass. Stat. 1783, ch. 37, sec. 5—to wit, “ that the widow of any vendor shall be entitled to dower, unless she shall have joined her husband in the sale, or has otherwise lawfully barred or excluded herself from dower.” Under this law, it has been held in Massachusetts, 18 Pick. 9, that the joining of the wife in the granting part of the *deed, barred her of dower. This decision under their statute is undoubtedly right, but does not apply to our statute of 1805, and certainly not to our subsequent statutes. We shipuld always recollect, in examining Massachusetts’ authorities, that she has no law for the separate examination and acknowledgment of the wife.
    The law of 1804 was changed in 1805, and it was then provided “that the widow of any person dying intestate or otherwise, shall be endowed of one full equal third part of all lands, etc., to which she shall not have relinquished her right of dower by deed duly executed and acknowledged.” Here, again, wo have the manner pointed out in which dower is to be aliened. It is to be relinquished by deed duly executed.
    But in 1824, the legislature went a step further, and passed our present law, which provides that the widow shall be endowed of one-third of all the husband’s lands, and also of one-third of all his right to any land hold by bond, article, lease, or other evidence of claim. And all this without any exception as contained in the laws of 1804 and 1805.
    Under these existing laws, the question is not, did the complainant intend to convey her dower? There can be no question of intention. It is a bare naked question of power. Has she executed such a relinquishment of dower as is authorized by the laws of Ohio? If so, she is barred; if not, not barred. Lessee of Good v. Zercher, 12 Ohio, 364.
    That our laws require the release of dower by name, has also been sustained by our courts, 7 Ohio, 194, pt. 1. In that case Judge Lane says, “ unless the deed contains words applicable to her estate and evince her intention to convey it, it is the deed of the husband only.”
    
      In Maddocks v. Williams, 12 Ohio, 277, there was a deed in which the wife joined in the granting part only. The counsel for the plaintiff raised the question now under discussion, and argued it. The other case was on the acknowledgment. But Reed, J., remarked “that this deed would be no bar, even if the curative act Of 1835 had been held valid.”
    *4 Mass. 273, Story, J., says, “ the rule of law appears to me plain that the wife can not release her dower except there be apt words to express such an intention.”
    It is said by the counsel that the word give implies a warranty 'in law, and therefore the complainant is estopped from setting up her right, and he quotes Hill’s Lessee v. West, 8 Ohio, 222. But that was conveyance of the wife’s land with express warranty, and of course not in point in this case. But the case of Boyd’s Lessee v. Longworth, 11 Ohio, 235, deciding that an express warranty alone estops the warrantor, quiets this objection.
    But should the court disagree with us in that view of the case, still wo contend that the decree of the court of common pleas is erroneous, in not dismissing the bill in so far as it sought to bar the widow of her dower in lands covered by the mortgage, but which were sold to satisfy judgments rendered prior to the date of the mortgage.
    The bill of review, so far as this branch of the subject requires them to bo stated, shows the following facts, viz: 1. That there were judgments in favor of the Commercial Bank of Cincinnati and the Bank of Geauga, which were liens on the mortgaged promises, prior to the execution and recording of the mortgage; 2. The execution and recording of the mortgage; 3. Four several judgments in favor of Webb, Avcrill, Converse and others, subsequent to the mortgage; 4. That execution on the last judgments were issued and levied on part of the mortgaged premises, before any executions had issued upon the judgments rendered prior to the mortgage.
    This state of facts presented for the decision of the court of common pleas, this question, viz: whether the widow, supposing her to have properly executed the mortgage, was entitled to dower in that portion of the mortgaged premises which had been, or was to bo sold for the satisfaction of the prior judgments; and whether her right would be affected by the fact, that the judgments junior to the mortgage, were *by law entitled to a preference over the judgments rendered prior thereto.
    
      By the decree of the court of common pleas, the widow was barred of her right of dower in all the lands conveyed by the mortgage, and the court placed their decision on the ground, that the mortgage was to bo preferred over any rights which the subsequent judgment creditors could acquire over the senior judgments.
    In this respect we contend that the decree is erroneous. Had there been no junior judgment, enough of the land covered by the mortgage must have been sold to satisfy those senior judgments, and the widow would be entitled to dower in thoso lands, unless by the execution of the mortgage, she transferred that right to the mortgagee.
    But does the condition of the junior judgments, and the negligence of the senior judgment creditors affect the widow’s right of dower in lands sold upon either the junior or senior judgments, or place the mortgagees in a better situation than they would have stood had no such junior judgments been rendered? There seems to us no good reason why the rights of the mortgagees may not have been preserved, and the liens of the judgment creditors enforced according to the provisions of the statute regulating judgments and executions, Swan’s Stat. 470, sec. 23, without interfering with the widow’s right of dower in the lands sold on the judgments.
    The right of the mortgagee is simply not to have all the lands not required to satisfy the prior judgments sold, discharged of the widow’s right of dower, and the proceeds applied toward the satisfaction of the mortgage. Beyond this he can legitimately-have no claim. This right can not bo affected by the recovery of any judgment against the mortgagor, subsequent to the mortgage. But the recovery of one judgment subsequent to another, may affect the rights of the prior judgment creditor. By neglecting to take out execution within the year, and levying the same on the land, the lien of the first judgment is postponed to -the younger, ^levying the first execution. The statute gives this effect to the last levy, but does not extend to purchasers. Norton v. Beaver et al., 5 Ohio, 175.
    The mortgagee can not, therefore, take advantage of the negligence of their prior judgment creditor, under this section of the statute. Now if, as in this case, the older judgment creditors neglect to take out execution within the year, and the younger judgments are first levied, they will be preferred. But it is said the mortgage intervening between the older and the younger judgments, changes this rule established by the statute. Now, the intervention of the mortgage will doubtless change the rule so far as may be necessary to preserve the rights of the mortgagee. That is, the younger judgment, though larger in amount than tho older, could only be satisfied from the mortgaged premises to the amount of the older judgment. Likewise, should the younger judgment be less than the older, it would be fully satisfied, and the older would be abated to the amount of the younger. This method of marshaling the different liens, preserves to each precisely the rights to which, by the general principles of the law, and the statutes regulating judgments and executions, they are severally entitled.
    To this view of the question two objections were raised in the court below, tho latter of which was sustained by that court, viz:
    1. That the judgment subsequent to the mortgage constituted a mere lion upon the equity of redemption, and consequently a sale under it could not deprive the older judgment of its lien, and conveyed nothing to the purchaser but such equity.
    2. Admitting that a sale under the junior judgment would divest the lien of the senior judgment to tho amount of the junior, still, the mortgage being prior to the younger judgment is to have the proceeds of such sale, and the land is to be considered as sold under the mortgage for the benefit of the mortgagee, and the widow consequently deprived of her dower in those lands.
    *To the first objection we might reply, that if it is well taken, the case is the stronger for the widow, inasmuch as thereby the land must be sold to satisfy the older judgment, and the purchaser will take it clear of the lion of the mortgage, and most obviously subject to the widow’s dower, as will bo shown hereafter. But we do not consider the objection well taken. It is unquestionably true, as between the younger judgment creditor and the mortgagee, that the judgment is but a lien upon the equity of redemption ; but as between the older and younger judgment ■creditors, it is not true. At law there could hardly bo a difficulty started on this question ; but in equity there is absolutely no difficulty at all. “In equity the mortgage is but % lien or security for the payment of the debt. The title to the land, as'to all the world except the mortgagee, remains in the mortgagor. It is an insult to common sense to say that the mortgagor in possession is not the real owner.” Payment of the mortgage money is an ex-tinguishment of the mortgage, and such payment may be shown by parol. Ely v. McGuire, 2 Ohio, 221; Phelps v. Butler, 2 Ohio, 224; Hitchcock v. Harrington, 6 Johns. 290 ; Jackson v. Hilliard, 4 Johns. 41; Hill’s Lessee v. West, 8 Ohio, 222.
    “Mere paying the money secured by mortgage, reinvests the legal title in the mortgagor, without release or deed of conveyance.” More v. Barnet’s Lessee, 11 Ohio, 334. Thus the judgments and mortgage are but consecutive liens on the land, to bo enforced in a court of equity, according to their legal priorities. “In enforcing liens at law, courts of equity are in general governed by the same rule of decisions as courts of law, with reference to the nature, operation, and extent of such liens.” 2 Story’s Eq., 4 ed. 573, see. 1216. The extinguishment of any of these liens would merely subject the land to those remaining. The payment of the mortgage would have extinguished its lion on the land, and loft the relations of the junior to the senior judgment creditors, the same as if the mortgage had not been executed ; and there is no reason,why the intervention of *the mortgage should make any difference. The rights of judgment creditors, and the enforcements of their liens, will be such in this court as to sustain their legal rights, but in such a way as not to impair the legal rights of the mortgagee.
    The second objection above stated, is founded in this: that, as the' junior judgment creditor, by superior diligence, is to bo preferred to the senior; so the mortgagee, on account of the priority of the mortgage over the younger judgment, is to be preferred to both of them—that is, the younger- judgment may, by force of statute, take the land from the older, and the mortgage being senior to the younger judgment, may take these spoils from him, by a a sort of eagle and fish-hawk process. This is an unreasonable doctrine, as it disturbs the settled legal rights of the different incumbrancers, and is directly in the teeth of well-settled equitable principles. Equity, as well as the law, favors the diligent; but if the doctrine advanced in the objection is to prevail, it takes the wages of diligence from him who has earned them, and bestows them on one who has done nothing whatever to merit the favor of the court. Besides, if the mortgagee has an equity to take the money from the junior judgment creditor after he has obtained it by his superior diligence, he has an equal equity to compel him to that diligence, the fruits of which he is to enjoy when gathered. Nay, further; should the junior judgment creditor by his negligence omit to take the land from the older, equity would hold him responsible to the mortgagee for the loss. But doctrine leading to such absurd consequences, is hardly worthy of serious refutation.
    But inasmuch as this was the ground of decision in the court below, it may not bo out of place to set its unsoundness in a still more palpable light. “ The liens of judgments are of a purely legal nature, and can not bo extended in equity beyond their strict legal operation. Those liens are dependent solely on statutory regulations.” Miami Exporting Co. v. Turpin, 3 Ohio, 514 ; Douglas v. Houston, 6 Ohio, *156. Equity, therefore, can no more'take from, than it can add to the lien of a judgment. It can not take from a judgment creditor the lien of his judgment and transfer it to a mortgage, as the court of common pleas have done in this case. There is no statutory or common-law provision for any such action of the court, and it can not be done but in contravention of well-established principles.
    But again, the position is opposed by the settled maxim in equity, that “ among equitable rights, the oldest is to be preferred.” But the equity of the first judgment creditor (if it may be called an equity) is older, and equally meritorious with that of the mortgage. Why, then, on equitable principles, should the mortgagee take the fruits of the junior judgment creditor’s diligence for his own benefit? Ho ought rather to pay it over to the older judgment creditor, he having the earlier equity. But there is hardly a limit to the absurdities of the doctrine which we are controverting. The established maxim in equity—-that “ when the equities are equal, ho who has the legal title, or the better right to call for if, shall prevail”—is irreconcilable with the decision of the court below. The legal right is most clearly, as we have before shown, with the younger judgment creditor, and his equity is equal with the mortgagee, or the oldest creditor; they are all bona fide incumbrancers, and entitled to the protection extended to such by courts of equity. Upon what principle, then, it may be asked, is the priority of the younger judgment creditor gained at law, by his superior diligence, taken from him and transferred to the mortgagee? “When a rule of the common, or the statute law is direct, and governs the case with all its circumstances, or the j)articular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it.” 1 Story’s Eq., 4 ed. 72, sec. 64; Kemp v. Prior, 7 Ves. Sumn. ed. 237, 250. The statute law determines the rights of the incumbrancers in this case, in all their circumstances; but the decree of the court below is contrary to the statute, and consequently erroneous.
    ^Admitting the reasoning on which the decree of the common pleas was based to be unsound, if may nevertheless be insisted that the decision was right. It may be said, perhaps, that the widow, having executed the mortgage, is estopped from setting up a claim for dower in any part of the mortgaged premises, whether the claim be made against purchasers under the judgments, or under the mortgage.
    To this we reply, that in all lands sold on judgment at law, the widow of the deceased judgment debtor, is prima facie entitled to dower, as against the purchasers under such judgments; and we do nob perceive on what principle the widow is to be estopped by the mortgage from making such claim. If the purchaser was not a party to the mortgage, he could not be estopped by any of its provisions, and consequently it can not be used by him as an estoppel, even against one who is a party to it. Estoppels must be mutual to be binding. Only parties or privies are bound by, or can take advantage of an estoppel, unless it be by record. 2 Hilliard’s Abr. 400, sec. 90; Carver v. Jackson, 4 Pet. 1, 83; Braintree v. Hingham, 17 Mass. 432.
    Estoppels are not more favored in equity than at law. The widow is not estopped to claim her dower against the purchaser under the judgment.
    But further, may not the mortgagee in equity have the dówer interest, which has.been released to him by the mortgage, appropriated to the payment of the mortgage money? Will not equity, as against the purchasers under the judgment and the widow, order the dower interest in such lands to be sold for the benefit of the mortgagee? The widow has released to the mortgagee her right in the entire premises, and it may be asked, why ho may nob appropriate that right to himself, as well in the lands sold to satisfy the judgment, as in those sold to satisfy the mortgage.
    To these questions it may be answered that her release to the mortgagee was only to him in his capacity of mortgagee, and could not extinguish her right of dower, in .any greater portion of the mortgaged premises, than the mortgagee *could by law appropriate to the payment of his mortgage. That is, the release of dower by the wife could not be made operative beyond the grant of the husband. But the release of dower would only extinguish the widow’s right against the mortgagee. It conveyed no interest to him. She had- no interest to convey, and could convey none. She had but a mere contingent right in action,not an interest. This mere contingent right of the widow she can not grant. “ The right of dower is a right existing in action only; it can not be so aliened as to enable the grantee to bring an action in his own name; a feme covert, or a widow, may release her claim to dower, so as to bar her; but she can invest no other person with the right to maintain an action for it.” Jackson v. Clowes, 17 Johns. 166, 168; Douglas v. McCoy, 5 Ohio, 522; 4 Kent’s Com. 61.
    If the above be law, it follows that the release of dower in the mortgage is operative only to extinguish the widow’s right of dower in the land held by the mortgage, and not to convey or transfer to the mortgagee the dower interest in the lands appropriated by prior incumbrancers, strangers to the mortgage.
    If the release of dower in the mortgage, operated to convey a subsisting legal interest in the land (and dower is most emphatically d legal interest') to the mortgagee, then he might bring ejectment for such interest against the purchasers under judgments. But this he most unquestionably can not do, as the above authorities abundantly show. See also 1 Hillard’s Abr. 87, sec. 1; Cox v. Jagguetel, 2 Cow. 638.
    “A widow, or a feme covert, may release her claim to dower so as to bar herself, but she can invest no other person with the right to maintain an action for it, until it has been assigned.” Jackson v. Aspell, Johns. 410; 1 Cruise’s Dig. 159, sec. 2.
    These cases show conclusively that, at law, no action can be maintained for this dower interest by the mortgagee, against the purchasers under the judgments, nor against the *widow [209 herself, and it only remains to show that the mortgagee has no relief in such case in equity. The cases of Carr v. Williams et ux., 10 Ohio, 305; Martin v. Dwelly, 6 Wend. 9; Butler & Atwater v. Buckingham, 5 Conn. 492; and numerous other cases, show that there is no relief in equity, against a dowress on a deed imperfectly executed by her, or on any coutract by which she agrees to convey lands either jointly with or separately from her husband. Her right to dower is considered equally, and perhaps more meritorious than that of a bona fide purchaser. It is likewise a strictly legal claim, of which she can not be deprived but by strict compliance with the statutes framed for that purpose. In case of' dower, equity foliotes the law, and does not exlend the remedies of parties against the dowress beyond the rules of law. “In general, equity follows the law in cases of dower, and the parties stand on their legal rights, and nothing will be effectual as a bar of dower in equity, which would not bo such at law, unless there be fraud, or some counter equity against the widow’s claim.” It is believed that the only instance wherein equity does not follow the law in matters of dower, is in not giving to the widow dower in a trust estate.
    “Dower is highly favored in equity, and the right which the dowress has to her dower is not only a legal right, and so adjudged in law, but it is also a moral right, to be provided for and be maintained out of her husband’s estate. She is, therefore, in the care of the law, and the favorite of the law; and, upon this moral law, is the law of England founded as to the right of dower.” 1 Story’s Eq., 4 ed., 637, sec. 629; Dudley & Ward v. Dudley, Prec. in Ch. 244.
    Equity, therefore, will not deprive her of her legal right, in favor of any one who can not claim it by law. This the mortgagee in this caso can not do, as we have before shown, and hence he has no relief in equity. But the dowress is more favored in equity than a bona fide purchaser. She may maintain a bill in equity for a discovery against such purchaser, which no other person can do, unless he stand on *as high ground as the dowress, to wit, “with a legal title.” Such bill can not be-maintained against any one, upon a mere equitable title. 1 Story’s Eq. 643, sec. 630; Williams v. Lamb, 3 Brown’s Ch. 221; Collins v. Archer, 4 Eng. Ch. Cond. 428.
    There is, therefore, in this' case neither equity nor law, in favor of the mortgagee, against tho widow, as to the lands sold under the judgments. As complainant, he has no claim or right which he can enforce against the widow, or those who claim as purchasers under the judgments. The dower is a legal claim. It is also an equity of the highest nature; it is prior in time to the rights of the mortgagee. The mortgagee in the court below was complainant, seeking to obtain the widow’s dower in land without any conveyance known to or recognized by law. The widow was defendant resisting this attempt, not seeking for the assignment of dower, and the legal and equitable conclusion to be drawn from the relations of all the parties is inevitable, that the decree of the court below was erroneous so far as it barred the widow of her right of dower in the lands sold to satisfy those judgments at law, to the full amount of the judgments prior to the mortgage.
    P. Odlin and R. P. Spalding also submitted arguments for the complainants.
    H. Foote and R. Hitchcock, for the defendant in review:
    The object of this bill is to determine the right of dower of the complainant, in certain lands mortgaged by her husband, John W. Willey, in his lifetime, to the Commercial Bank of Lake Erie. And the principal, if not the only question in the case of any practical importance to the defendant is, whether the complainant, by joining in the deed in the manner she did, subjected her dower right to the payment of the mortgage.
    The mortgage deed, so far as this inquiry is concerned, is *as follows : “ Know ye, that we, James T. Clarke, John W. Willey, and Laura M. Willey, for the consideration of $50,000, received, etc., do give, grant, bargain, sell, and confirm unto the president, directors, and company of the Commercial Bank of Lake Erie, etc., the following tracts or lots of land, etc. To have and to.hold the above granted and bargained premises, with the ajipurtenances thereof, unto the said president, directors, and company,” etc. Then follow the usual covenants of warranty and seizin, on the part of James T. Clarke and John W. Willey. But the deed contains no express warranty on the part of Mrs. Willey, and no clause releasing dower by name. The execution, attestation, and acknowledgment are in due form.
    The court of common pleas decided that the complainant’s right of dower in the mortgaged promises was by this deed barred, so far as necessary for the purpose of paying off this mortgage.
    Is this decision right? There can be no doubt, in point of fact, that Mrs. Willey joined in the deed for the purpose of subjecting her right of dower to the payment of the mortgage, or rather of disincumbering the estate of her husband of that right, for the benefit of the mortgagees. If, as she states in her answer to the original bill of the Commercial Bank of Lake Erie, she had no interest in the lands except her dower right, no sufficient reason appears for her joining in the deed, unless her intention was to release her right of dower. And it may be remarked that she does not pretend in her answer, that she had no intention of releasing that right. We are justified in saying, therefore, that by joining in the deed she did, in fact, intend to relinquish her dower subject to the conditions of the mortgage.
    Is the deed sufficient in point of law to carry into effect that intention ? No question is made as to the formal execution of the instrument. The signing, sealing, attestation, and acknowledgment are all in strict accordance with the statute. But it is contended that the deed does not contain the proper and necessary words of grant or release on the *part of Mrs. Willey to extinguish or bar her right of dower. And this is the question.
    Dower is said to be one of the favorites of the common law. It is no less a favorite of the statutes of Ohio. There is, however, nothing peculiar in the right of dower, to prevent its being operated upon by such words of conveyance or release as will operate upon other contingent rights to real estate. The right of dower of a married woman is nothing more nor less than a contingent right to a freehold estate in the real property of her husband. Up to the time of her husband’s death it continues to be a mere contingent right. Upon his death, the right, if it exist at all, becomes a vested or absolute right. But it is not, then, an estate; and can not become such, until it is legally assigned. It was once held that the contingent right of dower of a feme covert was a mere possibility which could not be conveyed by fine. Lampet’s case, 10 Rep. 50.
    But that motion was abandoned long ago, and it is now universally held that such a contingent right is something more than a more possibility; that is, a right or interest in the land, defeasible indeed, but still a present right that may be the subject of conveyance. It is true the common-law mode of conveying or releasing this right is not by deed as in the case with most, if not all, other contingent rights in land. But this difference does not arise from any essential difference in the nature of the rights, but from the disability of the persons entitled to a contingent right of dower. And this difference regards only the formal mode of transmitting the right, and not its transmissibility. I suppose, then, it may be safely said, that any words of grant or release in a deed, which would be sufficient to pass any other contingent right in land, without particularly designating the right, would be sufficient, without a particular designation, to pass the right of dower.
    It is an established rule that all deeds shall operate according to the intent of the parties, if by law, they may; and if they can not operate in one form, they shall operate *in that which by law will effectuate the intention of the parties. Shep. Touch. 84; 4 Kent’s Com. 493 ; Jackson v. Blodget. 16 Johns. 172. A release may operate as a grant of the reversion. Goodtitle v. Bailey, Cow. 579.
    A release may be construed to be a bargain and sale, or any other lawful conveyance by which the estate may pass. Pray v. Pierce. 7 Mass. 381.
    A release may operate as a substantive grant when it is made by the owner of a reversion or remainder. 2 Pres. Conv. 332, 429.
    A deed intended to operate as a lease and release, which can not take effect in that manner, may operate as a covenant to stand seized. Hpb. 277.
    So a deed intended to operate as a bargain and sale may be held to operate as a confirmation. Osborn v. Churchman, Cro. J. 127.
    So a conveyance by lease and release may operate as a grant and assignment. Marshall v. Frank, Gilb. 143.
    Littleton, section 531, says: “In some case, this verb dedi or this verb concessi hath the same effect in substance, and shall inure to the same intent as this verb conjirmavi. As if I be disseized of a carve of land, and I make such a deed seiant prasentes, etc., quod dedi to the disseizor, etc., or quod concessi to the said disseizor the said carve, etc., and I deliver only the deed to him without any livery of seizin of the land, this is a good confirmation, and as strong in law as if there had been in this deed this verb confirmavi,” etc.
    In this commentary upon this section, Lord Coke remarks: “ Hero it is to be observed that some words are large and have a general extent, and some have a proper and particular application. The former sort may contain the latter; as dedi or concessi may amount to a grant, a feoffment, a gift, a lease, a release, a confirmation, a surrender, etc. And it is in the election of the party to use it, to which of these purposes he will.”
    
      And he to whom such a deed comprehending dedi, etc., is *madc, may plead as a grant, as a release, or as a confirmation, at his election. 2 T. Coke, 610.
    Cruise, in his Digest,-tit. 32, ch. 19, sec. 39, says: “All modern deeds contain in the granting part a great number of tho most operative technical words ; thus, in a release, the words 1 grant, bargain, sell, release, and confirm,’ are always used ; because if the conveyance should not happen to be good as a release, it may operate as a grant, a bargain and sale, or a confirmation.” 4 Cru. Dig. 301.
    In the case of the Lessee of Foster v. Denison, 9 Ohio, 121, tho court say a deed may be held to operate in any former of conveyance that will carry into execution the lawful objects of the makers. Whether the form be feoffment, grant, bargain and sale, or release, tho deed may inure as either.
    In the deed in question, we have the words “give, grant, bargain, sell, and confirm.” The words “give and grant ” are large and have a general extent, and contain a lease, release, etc. We have then a case, in which the husband grants his lands in fee, and tho wife joins in the deed and confirms the granted premises to tho grantee, in the precise technical language of a deed of confirmation—a case in which the husband grants his lands in fee, and the wife joins in the deed and releases the granted premises to the grantee by words as effectual as the word release itself; and is it to be held that in opposition to her deed of release aud confirmation so given, she is entitled to dower in the granted premises?
    But it may bo said, tho deed does not designate dower by name, and therefore the right of dower is not operated upon by it. It is true that the deed does not designate dower by name; but it is not true that the deed is inoperative as to the right of dower for that reason. The rule is not that to bar or extinguish a right of dower by deed, it must bo conveyed or released by that name, but it is that the wife must join in the deed in such a way that the intention to release her dower shall be manifest upon a fair construction óf the language used by her. It is believed that no case can be found in which it has *been held, or even intimated by any respectable judicial tribunal, that dower can not be released, except by that name. But the contrary has been expressly decided.
    In England the wife is barred of her dower by joining with her husband in a conveyance by fine. There, if the husband sell his estate, and he and his wife join in levying a fine sur cognizance de droit come ceo, etc., it will bar her right of dower; and the reason given is, that thero could be no other reason for her concurrence in these acts than • to destroy such right, since she had no other interest in the property, and the method adopted for the purpose was sufficient. Shep. Touch. 46 ; 10 Rep. 50; 1 Rop. on Prop. 529.
    In the form of levying this fine by husband and wife in order to bar her dower, no mention of dower by name is ever made. This form is found in 2 Bl. Com. App. 448.
    1. Is the writ of covenant founded on a supposed agreement of the husband to convey the land?
    2. The license to agree.
    3. The concord wherein the husband and wife acknowledge the lands to be the right of the complainant, .as those which the complainant has of the gift of the husband and wife, and those they have remised and quitted claim from them and their heirs to the complainant and his heirs. The wife is privately examined whether she does it willingly and freely, or by compulsion of her husband. These things constitute the essential parts of the fine. They are followed by the note and the foot or conclusion, which make it complete in form.
    Now from this form no person could tell whether the object of joining the wife in it, was to bar her dower or to bar her of some other right, vested or contingent, she might have in the land. Yet the direct operation of this fine, in England, in case of a woman having a contingent right of dower, is to bar her of that right, although.no allusion is made to that particular right in the convoyan ce.
    Mr. Cruise in his Digest, says it has been fully established that if husband and wife join in levying a fine of the *husband’s estate to a stranger, the wife will bo thereby barred of her dower out of the lands comprised in the fine, for the reason that she having nothing in the lands in her own right, her joining with her husband in a fine of them, could be for no other purpose than that of barring her claim of dower. 5 Cru. Dig. 134.
    So it is laid down, that if husband and wife levy a fine of his estate in order to charge the same with the payment of a rent, or to create a term of years, reserving a rent to the husband and his heirs, her dower will be barred so far as to be subject to the rent or the terra. 1 Eop. on Prop. 529.
    It is perfectly clear, therefore, that by the common law which favors dower, it is not necessary in an alienation by husband and wife, to designate her right of dower by name, in order to extinguish or bar that right.
    In the United States, the ordinary modo of barring or releasing the right of dower, is to join the wife with her husband in a deed of the lands to be released from her dower—instead of the process of levying- a fine. In most, if not all of the states, the mode is regulated by legislative provisions prescribing the particular formalities necessary in the execution of the deed, in order to bind the wife. But in no state has there been any legislation to the effect that the right of dower must be designated by that name in the deed, in order to its being barred thereby. Yarious decisions have been made, both in our own courts and those of other states, upon the subject of the requisites to an effectual relinquishment of dower by deed. A glance at these decisions will show that in' them no such doctrine has ever been advanced as that dower can not be barred by deed unless designated by that name in the deed.
    In Fowler v. Sherer, 7 Mass. 14, no question of dower was made. The real question was as to the validity of a deed executed by a married woman without her husband, or as attorney of her husband, but not in his name. Parsons, O. J., after remarking that in Massachusetts, a widow not barred of dower by jointure or by joining with the husband in *a sale of his lands, is entitled tt> dower, says : “ The usual mode by which a wife is joined, is by introducing her in the close of the deed as expressly relinquishing all claims to dower in the premises sold, and by her executing the deed with her husband.” Nothing is clearer than that this incidental remark of the judge, taking it to be strictly correct, is no authority for the position that dower can not be released except by that name.
    The case of Catlin v. Ware, 9 Mass. 218, as to this point, only decides that if to a conveyance by the husband the wife affixes her signature and seal, her name not being otherwise mentioned, in the deed, she does not thereby bar herself of her right of dower. The court say, “A deed can not bind a party sealing it, unless it contain words expressive of an intention to bo bound.” And it was because there were no words in the deed which could be considered as her words, expressing or implying an intention to release her dower in the lands, that she was held not to be barred. If she had had any other right or estate in the lands, that deed would not have affected it.
    In Lufkin v. Curtiss, 13 Mass. 223, the wife joined in the conclusion of the deed only, and signed and sealed it with her husband, and her dower was held not to be barred. The court said it contained “no declaration for what reason she executed it;” and it is perfectly obvious that as the words of grant and release in the deed were not her words, she could not be barred by them.
    A similar decision was made by Judge Story in the case of Powell v. The Munson and Brimfield Manufacturing Company, 3 Mass. 347.
    In neither of these cases did the question arise as to the necessity of designating dower by name, and of course it was not decided in any of them; but it is fairly to be inferred from them that any words of grant or release in the deed which can be considered as the words of the wife, and are sufficient to pass a right in lands, will bar the right of dower.
    *In the case of Thatcher v. Howland, 2 Met. 41, it was held that a conveyance by a widow before any assignment of her dower, to the heirs of the grantee of her husband, of “all her right and title in and to a certain estate,” being the same granted’ by her husband in his lifetime, barred her of her dower in the promises, without any words designating dower by name. Now a right of dower during the life of the husband differs from the same right after his death and before assignment, only in this— that in the latter case it is an absolute, in the former a contingent right. In both cases it is only a right, not capable of being convoyed, as a substantive estate. But after the death of the husband this right may bo barred by deed without calling it a right of dower in the deed. Why, then, may not this be done in the life of the husband by joining him in a deed in the form prescribed by the statute?
    That this may be done was expressly determined in the case of Learned v. Cutler, 18 Pick. 9. In this case the husband owning three-fourths and the wife one-fourth of certain promises in the city of Boston, joined in a deed to the city, using the words, “do hereby give, grant, sell, and convey unto the said city of Boston all right, title, and interest which we have in and to the said premises.” “To have and to hold,” etc. “In witness whereof, we, the said,” etc., “in token of our conveyance of all .right, title, and interest, whether in fee or in freehold in the promises, have hereunto set our hands and seals,” etc. The court held that the wife was barred of dower in the three-fourths of the premises owned by the husband by thus joining him in the deed; and that, notwithstanding, she had another interest in the land upon which her words of grant, etc., might and did operate As to what acts of the wife are sufficient to bar dower, they say: “She must not only join with her husband in a doed of conveyance of the land by executing the deed, the conveyance being made by him, but the deed must contain apt words of grant or release on her part; and if it does it will bar her right of dower, although she had no vested *title in the land at the time of conveyance, and no title passed from her to the grantee. The grant or release of the wife operates by .way of estoppel or extinguishment of hor'right so as to bar any future claim of dower which may accrue to her after the death of her husband. The usual form is simply for the wife to relinquish or release her right of dower; but words of grant are equally efficacious and proper to bar her right, for in neither case does her deed pass any title to the estate. So it is not necessary that she should release or •grant her right of dower eo nomine. Any other words showing an intention on her part to relinquish her dower will be sufficient; and if she joins her husband in the sale, and undertakes to convey the land jointly with him, this generally would be a sufficient indication of her intention to exclude herself from any claim of dowor. By 'joining in the words of grant, she must be understood to give or intend to give all the right and title she was capable of giving, whether by way of passing an estate or extinguishing or barring a right depending on a contingency. It is, therefore, no objection that the wife has nothing which can pass by grant; for if it can operate in any other way so as to confirm the title of the grantee, it will be sufficient.”
    Such is the law of Massachusetts. And the rule in New York is substantially the same. Chancellor Kent says that in order to bar dower by deed, the deed must contain apt words of grant or release, showing an intention to relinquish dower. 4 Kent’s Com. 59.
    The cases in Ohio will not show the law to be different here from what it is in Massachusetts. In stating the general rule on this subject, the court say, in the case of McFarland v. Febiger’s Heirs: “The mode of destroying dower, which is an American usage, is by the wife joining with the husband in a deed containing words calculated to operate on her contingent rights. Unless the deed contain words applicable to her estate, and evince her intention to convey it, it is the deed of the husband only.” 7 Ohio, 194. And as authority for this rule, the court refer to the cases above cited *from Massachusetts and Mason’s Reports, [220 plainly intimating thereby that the rule in Massachusetts and Ohio, on this point, is the same. In McFarland v. Febiger’s Heirs, the wife was named in the commencement of the deed as one of the parties, and also in the conclusion, but not in the granting part or the covenants. She did not join the grant, and the words of conveyance were not her words, and, of course, evinced no intention on her part to convey or to release; and the court rightly held that as she had joined in nothing that touched her rights, she was not barred of her dower.
    Tho case of the Lessee of Foster v. Denison, 9 Ohio, 121, decided that a deed executed by a married woman, of land in which she had a vested remainder in one-eighth, and a contingent right of dower in three-eighths, containing no words of grant, etc., by her, and only mentioning her name in the conclusion as relinquishing her dower, operates on her dower only, not on her interest in remainder.
    This case determines nothing as to the necessity of designating dower by name in order to bar it.
    The cases of Brown v. Farran, 3 Ohio, 140, and Connell v. Connell, 6 Ohio, 358, relate solely to the sufficiency of the certificates of acknowledgment by the wife, no question arising as to the effect of the language used in the deeds.
    The cases of Good v. Zercher, 12 Ohio, 364, and Silliman v. Cummins, 13 Ohio, 116, also relate to the sufficiency of tho certificates of acknowledgment, with the further question of tho validity of the curative act of March 9, 1835. Nothing is intimated as to what words are necessary in a deed to bar the right of do-wer.
    In the case of Meddock v. Williams, the point decided is, that a certificate of acknowledgment stating that the wife was examined according to law, is defective, and that a deed thus certified in that particular is no bar to dower. The certificate in that case was bad in another particular, which raised the question as to the effect of the curative act of March 9, 1835. And it has been said that tbe judge who gave the opinion of the court in that case, by remarking, as *he did, that the deed then in question would have been no bar to dower, even if the curative act were valid, has given his sanction to the doctrine, that the right of dower is not barred by deed, unless it is designated by that name in the deed. But nothing can be more unfounded than this remark.
    It does not appear that the question was made’in the ease. The report says, “ the only question is whether this acknowledgment of the deed is sufficient under the statute to pass the interest of Rachel Meddock in the premises described in the bill.” The counsel for the defendants made no such question. They say, “ we suppose there can be no question as to the validity of the deed to bar the dower of the petitioner if the acknowledgment by her is sufficient under the statute.” The dower was claimed to be barred by a deed executed by the complainant and her husband conveying the premises. What the language of the deed was, nowhere appears in the case. The counsel for the complainant say, “ that she joined in the granting part of the deed, but not in the warranty, that there was no word in it applicable to dower or evincive of an intention on her part to release or convey it.” And they say that they think, she is not barred of her dower, by thus joining with her husband in conveying his estate—although there might be doubt as to the effect of such conveyance, if dower can be released without specifically naming that kind of estate. The counsel for the defendant and the court are both perfectly silent as to the supposed objection, not giving the least intimation that it was worthy a moment’s consideration, and evidently disposing of the case upon the ground that there was in reality no question in it, except as to the sufficiency of the acknowledgment of the deed.
    The court decided that the certificate of acknowledgment did not show, either that the wife was examined separate and apart from her husband, or that the contents of the deed were made known to her. They then briefly give the reasons for holding the certificate to bo bad as to the separate ^'examination, and in passing from that to the other defect, which was not remedied by the act of March 9, 1835, remark, “ that the deed would constitute no bar, even if the curative act of 1835 had been valid.” Why constitute no bar? Because the court had just decided that the acknowledgment in question was defective in a point not covered by the statute, which, in its terms, embraces only eases in which the certificate of the magistrate does not show that he read or made known the contents of the deed.
    
    This case, then, does not contain the shadow of any authority for the groundless notion that dower must be specifically named in a deed in order to be barred by it. Nor does it furnish the least ground for the pretense, that the judge who delivored the opinion, entertained any such notion, or intended in the slightest degree to give it his sanction. And we say further, that our own reports furnish us with no decided case, nor even a judicial dictum, which at all sanctions such a notion.
    But it may not be improper to inquire whether there is anything in the legislation of Ohio by reason of which the court should be led to establish it as a rule, that, to bar dower by deed, it must be designated by that name in the deed.
    Under the ordinance of 1787, a widow was entitled to dower according to the rules of the common law. Betts v. Windall, 11 Ohio, 219.
    The first statute regulating the right of dower, passed January 19, 1804, provides, “that the widow shall be entitled during her life to the use of one-third part of all the real property that her husband was seized of during coverture, unless she shall have joined with her husband in the conveyance.” 1 Chase’s Stat. 395.
    The second statute on this subject, passed February 12, 1805, repeals all former laws on the subject of dower, and enacts “ that the widow of any person dying intestate or otherwise, shall be endowed of one full and equal third part of all the lands, tenements, or other real estate of, which her husband was seized as an estate of inheritance at any time during *the coverture, to which she shall not have relinquished her right of dower by deed duly executed and acknowledged.” 1 Chase’s Stat. 472.
    The third statute, passed January 26, 1824, and still in force, enacts, “that the widow of any person dying shall be endowed of one full and equal third part of all the lands, tenements, and real estate, of which her husband was seized as an inheritance at any time during the coverture.” 2 Chase’s Stat. 1314; Swan’s Stat. 276.
    The territorial act, passed June 26,1795, is the first act directing how husband and wife may convoy her estate, and it provides, ‘.‘that when any husband and wife shall hereafter inclino to dispose of and convey the estate of the wife, or her right of, in, or to any lands, tenamcnts, or hereditaments whatsoever, it shall and may be lawful to and for the said husband and wife (the wife not being loss than twenty-one years of age) to make, seal, deliver, and execute any grant, bargain and sale, lease, release, feoffment, deed, conveyance or assurance in the law whatsoever, for the lands, tenements, and hereditaments, intended to bo by them passed and convoyed, and every such conveyance (being duly acknowledged), is declared to be good and valid in the law to all intents and purposes as if the wife had been sole and not covert at the time of the sealing and delivery.” 1 Chase’s Stat. 186.
    The act of February 14, 1805, repeals this territorial law, but reenacts the above provisions in their very terms, changing the age of the wife from twenty-one to eighteen years,, and making some little alteration as to the officer who may take the acknowledgment of the deed. 1 Chase’s Stat. 485.
    This statute continued in force until May 1, 1818, when it was repealed by the act passed January 30,1818. Th-is act, section 21, provides, “that when a husband and wife—she being eighteen years of ago or upward—shall, within this state, execute any deed, mortgage, or other instrument of writing, for the conveyance or incumbrance of the estate of the wife, or her right of dower to any lands, tenements, or hereditaments whatsoever, such deed, mortgage, or other instrument *of writing, shall be signed and sealed by the husband and wife, and (being witnessed and acknowledged as prescribed in the act) shall be good and'valid in law.” 2 Chase’s Stat. 1041.
    The act of February 24, 1820, repealed the last-named act, but re-enacted the above section; and the provisions of this section were re-enacted by the act of February 22, 1831, which is still in force, and repealed the act of February 24, 1820.
    'Thus stands legislation on this subject in Ohio.
    •It is immaterial in the present case to inquire by what mode or form of conveyance, a married woman might be barred of her right of dower, during the time that intervened between the passing of the ordinance of 1787, and the taking effect of the territorial law of June 26, 1795. From the time when this law took effect, August 15, 1795, to May 1, 1818, it is certain that she might be barred of dower, by joining with her husband in making, sealing, executing, and delivering any deed for the premises subject to dower, which could by law operate on a contingent right in the premises, such as the right of dower is. Under the act of January 19,1804, she is barred of dower if she has joined with her husband in the conveyance of the premises. Under the act of February 12, 1805, she is barred if she has relinquished her right of dower by deed duly executed and acknowledged. What is here meant by a deed duly executed and acknowledged, is seen in the territorial law, and the act of February 14, 1805. Under the act of January 30, 1818, and the subsequent acts of February 24, 1820, and February 22, 1831, dower is barred in lands for the conveyance or incumbrance of which, as to her right of dower, the wife has joined with her husband in a deed or mortgage. As to what language she shall use in the deed, in order to evince her intention .by the act of joining in the deed, to convey or incumber her right of dower, the statutes are silent. That is loft to be construed according to the general principles which govern in the construction of deeds. And upon a just application of those principles, we have already shown that the deed in question did operate to incumber the *dower right of the complainant. There being, then, nothing in the nature of the right of dower, which furnishes a reason for requiring it to be designated by name in a release or conveyance by deed, when other contingent rights in land may be passed or extinguished without any such designation—nothing in' the common-law mode of releasing dower by fine ; nothing in the judicial determinations of other states; nothing in our own statutes, or the decisions of our own courts, to show the deed in question to be invalid for the purpose of barring dower—but, on the contrary, much to establish its validity and efficacy for that purpose, it is believed the question might be safely left here.
    There is, however, one other consideration which seems to be of importance enough to induce the court to pause long, and deliberate well before they come to the conclusion that such a deed is not sufficient to bar dower; and that is, the effect of such a decision upon land titles in Ohio. It is believed to be matter of general notoriety, that in almost every portion of the State of Ohio, from its first settlement to the prosent time, it has been a very common practice to make deeds, like the one in the present case, for the purpose ot barring dower, and without a doubt being entertained by good lawyers and conveyancers of their being perfectly proper and effectual. In regard to one class of deeds, quitclaim, deeds, it is understood to have boon the universal practice to omit the clause of relinquishment of dower by name, except perhaps recently in some parts of the Western Reserve. How many titles would be affected by a decision, making all these deeds void as to the wife, can not be told. How much confusion and ruin would be the consequence of it, it is impossible to foresee. Landholders, in every part of the state, would be filled with alarm and consternation. The flood-gates of litigation would be thrown open, and the confidence of the people in the certainty and stability of their rights would be shaken. Incalculable mischief would be the inevitable result; audit is to be presumed that the court will not become the author of all these evils, by declaring *deeds like the one in question ineffectual to bar dower, especially when such a decision, instead of having the support of either principle or precedent, would be in direct opposition to both.
    But there is another view of this case, from which it will appear that the complainant’s right of dower is barred by the deed in question.
    Mrs. Willey joined in this deed as one of three grantors, and conveyed the land to the Commercial Bank of Lake Erie in fee, by the technical word dedi—and we say she is estojDped by an implied warranty from setting up any claim to the lands by way of dower or otherwise, so as to defeat or impair the mortgage to the bank.
    A conveyance of a freehold estate, by the word dedi, implies a warranty for the life of the feoffor or donor. Lord Coke saySj “ dedi is a warranty in law to the feoffee and his heirs during the life of the feoffor.” 2 Thos. Coke, 252. And again: “It is to be observed that the warranty wrought by the word dedi is a special warranty, and extendeth to the heirs of the feoffee during the life of the donor only.” 2 Thos. Coke, 254, 781, n. 6.
    In the case of Frost v. Raymond, 2 Caine, 188, it was fully shown that the word dedi, or give, in a conveyance in fee, amounts to an implied warranty during the life of the feoffor or grantor.
    Blackstono says that if, before the statute of quia emptores, a man enfeoffed another in fee by the feodal verb dedi9 to hold of himself and his heirs, the law annexed a warranty to this grant which bound the feoffor and his heirs ; but, since that statute, the feoffor only is bound to the implied warranty. 2 Bl. Com. 300..
    The word dedi implies a warranty against the grantor, but not against his heirs. 1 Sw. Dig. 356; 3 Wils. 28; 3 Ins. 275.
    In Young v. Hargrave’s Adm’r, 7 Ohio, 63, pt. 2, this principle is distinctly recognized. Judge Lane there says, “It is sound law at this day, that whenever an estate in freehold *or in fee is created by the word give, it implies a warranty for the life of the grantor.
    This implied warranty is equally available to the grantee during the life of the grantor as an express warranty; and, by force of it, the grantee might vouch, or have a warrantia chartce or rebut. 2 Thos. Coke, 245, 254, 310, note n, 2.
    In Lord Buckhurst’s case, it is said, “ If A. enfeoffs B. with warranty, and B. enfeoffs C. by dedi, that B. during his life shall have the charters which contain warranty, and which serve for the necessary defense of the title;” for the reason that B. during his lifetime may be vouched on his implied warranty, the same as if the warranty were express. 1 Rep. 1.
    In Ohio, this implied warranty may be made available to the grantee or warrantee:
    1. By action on the contract implied in the warranty.
    2. By rebutter or estoppel.
    An express warranty by a married woman will not subject her to an action, but it will operate, by way of estoppel against her setting up an after-acquired title. This precise point was decided in the case of the Lessee of Hill v. West, 8 Ohio, 225.
    There is no reason why an implied warranty by the word dedi should not equally, with an express warranty, estop a married woman from setting up title to the land, although a breach of the covenant might not subject her to an action.
    In this view of the caso, therefore, the complainant is barred of her dower by the deed in question, for all the purposes of the mortgage to the bank.
   Hitchcock, J.

This case is one of very considerable importance, whether we consider the principles involved, or the amount of property in controversy. In disposing of it, it may be as well first to dispose of the error last assigned. This error is, that the court, by its decree, gave preference to the Commercial Bank over judgments recovered before the execution of the mortgage, when the creditors, recovering *sueh judgments, set up no claim in said lands in opposition to her right of dower. By the principles of law as recognized in this state, although a judgment creditor has a lion upon the lands of his debtor, that lien is subordinate to a widow's right of dower. So that if tho judgments referred to have been satisfied by the sale on execution of any of the lands embraced in the mortgage to the Commercial Bank, a purchaser at such sale must have taken the land subject to the widow’s right of dower. But it is a well-known principle of equity, that where there are two funds, and one creditor has a lion upon both, while another creditor has a lien upon but one, he who has a lien upon both shall first resort to and exhaust that fund upon which the other has no lion. If there be a prior judgment which operates as a lien upon all the lands of a debtor, and a part of those lands are subsequently mortgaged, equity will compel tho judgment creditor, in tho first place, to resort to those lands, for the satisfaction of his debt, which remain unincumbered. So if the lands of a debtor are sold and conveyed subsequent to the rendition of the judgment, and sold at different times, those last sold and conveyed must first be appropriated by the judgment creditor. This principle seems to have been accepted by the court of common pleas in tho case under consideration. Here were judgments against Clarke and Willey prior in date to the mortgage to the Commercial Bank, but this mortgage did not embrace all the lands of the debtors. In this state of the case, had those judgment creditors attempted to enforce collection, they would have been compelled to resort to the lands not included in the mortgage. But these lands were subsequently mortgaged. Notwithstanding this, however, the judgment creditors must still resort to those lands in the hands of the junior mortgagees. These must first be exhausted, before those embraced in the first mortgage could be appropriated by elder judgment creditors. This, in effect, was the decree of the court. Whether the lands sold to satisfy those judgments would be held by a purchaser discharged of the widow’s dower, is a ^question not necessary at present to decide. Tho parties interested are not before us. It may not be improper, however, to say that we see no reason why a sale, under a decree in chancery, should have any different effect in this respect, than under a sale on execution. If, however, Mrs. Smith has a claim to dower in the premises sold to satisfy those prior judgments, there is nothing in this decree to prevent her enforcing it. We discover no error in the decree for the cause in the second plea assigned.

The first error assigned presents this simple question: whether, where a married woman joins with her husband in the granting part of a deed conveying his land, but does not join him in the covenants, nor in words release her dower, she is thereby barred of her dower, the deed being duly acknowledged.

The decision of this question must depend alone upon the construction of our own statutes; for the whole subject of dower, as well as of the execution and acknowledgments of deeds, is regulated by statute. And upon these subjects there has been no substantial change since the territorial laws of 1795. There may have been, and undoubtedly have been, changes in phraseology, but not in substance and meaning, except that in no statute, previous to 1832, is it expressly made the duty of the officer, taking the acknowledgment, to certify that he examined the wife separate and apart from her husband. If, then, we can arrive at á proper construction of the present law, we arrive at a construction which is proper for the preceding law.

The practice under the law has been different in different parts of the state. In some parts, and especially in the northeastern part, it has been customary to introduce a clause of express relinquishment of dower, in the deed executed by husband and wile for the conveyance of his land; while, in much the greater portion of the state, it has been the practice for the wife to join with her husband in the granting part of the deed, as was done in the ease before the court—and this has been supposed to be sufficient to convey *her dower. This practice has prevailed for more than fifty years, and I am not aware that its correctness, or the effect of it, was seriously doubted until the commencement of litigation in the case now before us. This practice, too, furnishes evidence of contemporaneous construction from the time the right of a feme covert to convey her land was first secured to her by our statute. Is this practice, which has so long prevailed, in accordance with a fair interpretation of the statute?

In England, we know that a married woman can not convey her land, nor her dower in her husband’s land, by deed. To effect this object, she must join with her husband in'a fine. In this country, she is barred of her dower by joining with her husband in tho sale and conveyance of his land. Or she may convey her own land, by joining with him in a deed.

This mode of conveyance by deed is substituted for the fine. Both in England and by our law, the wife must be examined separate and apart from her husband. By our system this examination is made by tho officer taking tho acknowledgment. By our law, the mode of barring dower is not proscribed in the act regulating dower, but in the act of February 22, 1831, providing for the proof and acknowledgment of deeds. This is tho act now in force. As beforo remarked, this act, although somewhat different' in its phraseology from those preceding it upon the same subject, is the same in substance. In section 2 it is provided, “ that when a husband and wife, she being eighteen years of age or upward, shall execute within this state any deed, mortgage, or other instrument of writing, for the conveyance or incumbrance of the estate of the wife, or her right of dower in any lands, tenements, or hereditaments situate in this state; such deed, mortgage, or other instrument of writing shall bo signed and sealed by the husband and wife,and such signing and sealingshall beattested and acknowledged, in the manner prescribed in section 1 of this act; and in addition thereto, the officer before whom such ^acknowledgment shall bo made, shall examine the wile, separate and apart from her husband, and shall read, or otherwise make known to her, the contents of such deed, mortgage, or other instrument of writing; and if upon such separate examination, she shall declare that she did voluntarily sign, seal, and acknowledge the same, and that she is still satisfied therewith, such officer shall certify such examination and declaration of the wife, together with tho acknowledgment, as aforesaid, on such deed, mortgage, or other instrument of writing, and subscribe his name thereto.” S war’s Stat. 266.

Now, it will be observed that there is nothing in this section which requires the magistrate taking the acknowledgment, to certify that ho read the deed, or made known its contents to the woman. He is required to examine her separate and apart from the husband, and this he must certify; it is his duty to read to her the deed, but this he is- not required to certify; if she declares “ that she did voluntarily sign, seal and acknowledge the same,” and that she is still satisfied therewith, this he is required to certify.

Now, take the above-recited section of the act to a man of plain common sense, not skilled in the subtleties of the law, and inquire of him what must a married woman do in order to convey her lands, what would be his answer ? Unquestionably, that she must join with her husband in executing a deed. Inquire of him what he should do to convey her right of dower in the lands of the husband. The reply would be the same—she must join with her husband in making a conveyance. This is what the law requires, and we ought to require no more; and here it is proper to say that our legislation is not designed for a particular class of the community—for gentlemen of the legal profession, for instance— but for the great body of the people; and for the purpose of carrying out this object no better rule of construction can be adopted than a common-sense construction—a construction which meets the approbation of the great body of those for whom the law was made.

*In the case before the court, Mrs. Willey joined with her husband in the execution of the deed of mortgage. She joined with him in the granting part of the deed. The commencement is in the usual form: “Know ye, that we, James T. Clarke, John W. Willey, and Laura M. Willey, wife of John W., in consideration,” etc., “ do give, grant, bargain, sell and confirm,” etc. The only defect claimed in the deed is that there is nowhere an express relinquishment of dower. All that the statute requires of a married woman in order to convey her own estate, or her dower interest, is that she should join with her husband in the deed.

But it is said that there is nothing to show that the female intended to release her right of dower. If she did not intend this, what did she intend ? She had no other interest in the property than a contingent right of dower ? Why did she join in the deod ? Was it a vain thing? She must have intended that the deed should operate for some purpose, and, so far as she was concerned, it would be entirely inoperative, unless it operated upon her right of dower. It is a well-known rule that deeds shall be construed most strongly against the grantor, and the same rule must be applied to a feme covert, when she conveys in conformity to the statute. If the statute is complied with, the conveyance is as effectual as if made by a feme sole.

But again, it is said that it is not probable that this woman knew that she was destroying her right of dower, and that it is not certain that the magistrate taking the acknowledgment, explained to her that the deed would have this effect. The law makes it the duty of the magistrate to read the deed, or mako known the contents. This was done. This objection seems to bo based upon the supposition that a woman can not comprehend the nature of an instrument when it is read to her. I entertain a different opinion of the capacity of the female portion of the community. I believe females can comprehend the nature of a written instrument.

Again, it is said that authorities sustain the position that the fact must expressly appear upon the deed itself, that it *was the intention to release dower. I am aware that it is so said in some cases, but I know of no case in which such an opinion has been expressed, where the wife has joined- in the granting part of the deed. It is only in cases where the wife joins in the execution merely, without joining in the granting pai't, or in the covenants. Such was the case of McFarland v. Febriger’s Heirs, 7 Ohio, 194.

In England, as before remarked, the only regular way of barring dower is by fine. In that country it is fully established that if the husband and wife join in levying á fine of the husband’s estate to a stranger, the wife will bo barred of her dower and of the lands comprised in the fine, for the reason that she, having nothing in the land, in her own right, would not have joined her husband in a fine of them for any other purpose than of releasing her dower. 15 Cru. Dig. 134. It is established then, at common law, where dower is said to bo one of three things highly favored, if the wife join her husband in the conveyance of land, in the way known to that law in which she may join, she is barred of dower whether dower be named in'the conveyance or not. Why should not a similar rule prevail here?

Chancellor Kent, 4 Kent’s Com. 59, says that the common way of barring dower in this country, is by the voluntary act of the wife in “joining with her husband in a deed of conveyance of the land, containing apt words of grant or release on her part.” He adds, “the wife must join with her husband in the deed, and there must be apt words of grant, showing an intention on her part to relinquish her dower.” In this opinion ho cites 9 Mass. 218 13 lb. 223; 3 Mass. 346.

The case in 9 Massachusetts is one where the wife had merely joined with the husband in the execution of the deed, her name not appearing in the body of it. There the court say “ there are no words implying her intention to release her claim of dower in the premises conveyed, which must have been to give it that operation.” This case is analogous to the case of McFarland, 7 Ohio, and it was very properly decided there was no bar.

*The case in 13 Massachusetts is like the last, the wife merely united in the execution of the deed, and the court held that something further must appear before she would be barred.

The case in 3 Mason is like the two foregoing. The wife had not joined in the granting part of the deed, but merely signed the same with her husband. Judge Story held, as did the courts of the state, that this was not sufficient to bar her. Ho says: “The deed must contain apt words to make her grantor”—plainly implying that if it does, it will be sufficient. Now I will ask, does not the deed before the court contain words apt enough to make Mrs. Willey grantor ?

In the case cited by complainant’s counsel, 7 Mass. 14, it is true that Chief Justice Parsons says that, by the law of Massachusetts, if a woman does not join with her husband in the sale of his land, and is not otherwise joined, she shall have her dower. And he adds, “the usual mode by which a wife is joined, is by introducing in the close of the deed a clause expressly relinquishing all claim to dower in the premises sold, and by her executing the deed with her husband.” This is the usual mode, but is it the only mode?

The chief justice does not say so. And this very expression is conclusive to show that it might be done by any other appropriate mode.

The case cited by complainant’s counsel from 4 Mason, 273, is one where the wife had not joined at all in the deed. After it was executed, she signed the following memorandum attached to the deed, “I agree to the above conveyance.” This was held to be no execution of the deed, nothing in release of dower. In the course of his remarks upon the case, Judge Story says : “ The rule of law appears to me plain that the wife can not release her dower, except there be apt words to express such intention.”

The case of Stearns v. Smith, 8 Pick. 532, was a case in which tho wife joined in the deed with the husband in token of her relinquishment of dower,” and it was objected that she had not jointed in tho granting part of the deed. *But the court held tho deed sufficient, and say, “ nor is it any objection as in the present instance; it is a mere release, containing no words of grant; for it operates by way of estoppel, and not by way of grant.”

The only additional case I shall refer to is the case of Learned v. Cutler, 18 Pick. 9. The case was this: the plaintiff and her husband, in his lifetime, conveyed to the city of Boston certain parcels of land, in one of which, in the case before the court, dower was demanded. In the deed it was stated that the husband was the sole owner of throe undivided fourth parts, and that the husband and wife were seized of the remaining fourth part in her right. The husband and wife joined in the granting part of the deed in the usual form, making use of the words, “give, grant, bargain, sell, and convey.” Nothing was said about dower in the deed, nor was there any relinquishment. The husband having died, the widow was demanding her dower. But the court hold that she was barred. The court, in speaking of 'the question as to what shall be sufficient to bar the wife of dower, say, “ she must not only join her husband in the deed of conveyance of the land, by executing the deed, tho conveyance being made by him, but the deed must contain apt words of grant or release on her part; and if it does, it will bar her right of dower, although she had no vested title in the land at the time of the conveyance, and no title passed from her to the grantee. The grant or release of the wife operates by way of estoppel, or extinguishment of her right, so as to bar any future claim of dower, which may accrue to her after the death of tho husband. The usual form is for tho wife simply to release or relinquish her right of dower, but words of grant are equally effectual to bar her right, for in neither case does her deed pass any title to the estate. So it is not necessary that she should release or grant her right of dower eo nomine; any other words showing an intention on her part to relinquish her dower, will be sufficient. And if she joins with her husband in the sale, and undertakes to convey the land jointly *with him, this generally would be a sufficient indication of her intention to exclude herself from any claim of dower. By joining in the words of grant, she must be understood to give, or intend to give, all the right and title she was capable of giving, whether by way of passing an estate or extinguishing or barring a right depending on a contingency.”

Again, the court say: “ Now the wife can not, in any way, more fully join the husband in a sale than by joining in the words of grant, and where she does'thus join she is clearly barred—unless there is some reservation in the deed of her right of dower, or unless it appears from the language of the deed, that such reservation was intended to be made.”

Now it will not be denied that here is a case, decided by an intelligent court, which covers the entire ground of the case now before us. In fact, the case now before this court is a much stronger case against the widow than is the case cited. In that case the wife, at the time of the execution of the deed, had a present subsisting interest in the land upon which the deed would operate. In the case before us, she had no such interest, and if the deed operate at all, it must operate by way of extinguishment of dower.

But it is claimed that there is a difference between the law of Massachusetts and of this state upon this subject; but I have been unable to discover in what this difference consists. By the law of Massachusetts, the widow is barred of her dower if she joins with her husband, during his lifetime, in the sale and conveyance of the estate. By the statute of Ohio, if she would convey her own interest in land, or her right of dower in the land of her husband, she must join with him in the execution of the deed. This is all that the statute makes necessary.

Again, it is said that the courts of Massachusetts go upon the principle that the wife is estopped by her deed from claiming dower, and it is insisted that a married woman can not be estopped by her covenants. True, she is not estopped by the deed from sotting up any title which she may ^afterward acquire in the land, and so it was held by the Supreme Court of New York. 17 Johns. 167. But she is estopped by her deed from setting up this claim. That is what the court says. Not that she is estopped by any covenant. And I would inquire if, where the wife relinquishes her dower, the deed does not operate as an estoppel, how does it operate? When the deed is executed she has nothing to grant, nothing to release. But if she survive her husband, and sets up a claim of dower, this deed will operate as a bar. Technically, it operates as an estoppel; it can operate in no other way. I should prefer to say, however, that it operates by virtue of the Statute, leaving estoppels entirely out of the case.

Whether, then, we look to and adopt a literal construction of the statute, or whether we look to the common-law modo of conveyance by fine, or to the decisions of the courts of other states, upon statutes substantially like our own, we can have no doubt that a deed executed by husband and wife, in the manner and form as is the one before the court, must bar the wife of her dower; and such is the unanimous opinion of the court.

Where a mortgage deed is executed by husband 'and wife to incumber his land, and the land should be sold after his death to satisfy the debt secured, should any surplus remain after such satisfaction, the widow would bo entitled to her dower in this surplus. In the case now under consideration, the court of common pleas directed the surplus, if any, to be paid into court, to abide its order. And should there be such surplus, we can not doubt but that the court will so distribute it that no injustice will be done to the widow. The bill of review is dismissed.  