
    CONSTITUTIONAL COURT, CHARLESTON,
    MAY, 1807.
    Rebecca Verree v. Joseph Verree and Richard Yeadon, Executors of George Verree.
    Before the act of assembly of February, 1791, by a mortgage of real estate, the legal estate passed to the mortgagee; and, therefore, where the mortgagor married after the mortgage, and died during its existence, it was held that his widow was not intitled to dower in the land; for ■ the deceased had only an equity of redemption during the coverture.
    In dower, before Trezevast, J., in Charleston district. The de-mandant claimed one-third of a lot of land, called the Distillery, in Mazyckborough. The case stated to this court was this ; the property in question was purchased by George Verree & Co. from Joshua Hargraves, on the 2d August, 1802, some time prior to the intermarriage of the said George Verree with the demandant, now his widow, for the sum of $1(3,000 ; in part payment of which sum George Verree & Co. assumed the payment of about $4,000, being tile balance due on a mortgage of the said purchase, from the said Joshua Hargraves to Messrs. Mann & Foltz, the former proprietors of the same, and of which mortgage, the sum of $3,000 and upwards, yet remained unpaid. Upon the dissolution of the partnership of George Verree & Co. the premises were sold by order of the Court of Equity, and were purchased by the said George Verree on his own account for $1,600 ; who paid, and look upon himself the payment of the outstanding debts against the said partnership to the amount of $12,273 and upwards, including the balance due on tlie mortgage to Mann & Foltz, of which $3,000 and upwards yet remains unsatisfied ; and gave his bond and obligation to the guardian of Joshua Hartley Hargraves, the partner of the firm of George Verree & Co., for $1,863 and 25 cents, being one half the remaining balance after satisfying the outstanding debts; and to secure the payment of said bond, and the interest to grow due thereon, mortgaged the premises in question on the 1st of August, 1804. Prior to the application to the Court of Equity for authority to sell the land, George Verree intermarried with the demandant, Rebecca, then Rebecca Jarman. She did not join in the mortgage, nor renounce her right of dower. There is due about $1,863 on the purchase made by George Verree after his marriage. All the property which the demandant had in her own right at the time of her marriage with Verree, was settled on her for life, with remainder to her issue, and in case she should not have issue by Verree, to * j * survivor of them. George Verree died in March, 1805, leaving a child by the demandant, who is living; and the demandant is in Possess'on °f the property secured by the marriage settlement. The estate of George Verree is insolvent. The marriage settlement says nothing about dower.
    The case upon the foregoing statement was decided by the District Court in May, 1806, against the demandant, that she was not intitled to dower in the premises. From this decision she appealed ; and in May, 1807, the cause was argued before Bay, Thezevant, Brevard, and Winns, Justices ; by Gaillard, for the demandant; and Cheves, for the defendants.
    Gaillard insisted that the husband of the demandant had both an equitable and legal seizin of the premises. That the mortgage to Mann & Foltz ought not to be considered as a title, but only an incumbrance. That the mortgagor still held possession, and was to all intents and purposes the owner of the land, and the equity of redemption was never forfeited or relinquished. That an equity of redemption is an estate in land, and such an estate of which seisin may be had. 1 Atk. 605, 696, and seq. The wife of a reversioner is dowable. Jac. Diet. Cited the case of M’Comb, 1 Bay. See 3 Bl. b. 100.
    Cheves, E contra.
    
    Cited Roper’s Tracts. Of a trust a wife cannot be endowed. So of a use at common law. So if the estate be subject to a mortgage in fee. The act of February, 1791, does not apply in this case, because the right under the mortgage accrued before the passing of that act. The legal estate vested in the mortgagee ; the fee was mortgaged and conveyed; the equity of redemption alone remained in the mortgagor. The fee is still in Mann & Foltz. The equity of redemption, although undoubtedly an estate in the land, yet the wife is not dowable thereof. Litt. sec. 44. 3 P. Wm. 229. Bay, 307, Bogie v. Rutledge.
    Gaillard, in reply.
    In Bogie’s case the determination went on the ground of its being a fraud on the part of the wife. The ground of an instantaneous seizin is not sufficient. Bl. Com. 130. Not like the case of a fine, where the land is in transitu, and passes out by the same act by which it vests, and does not reside a moment in the cognusee, to amount to such a seizin as to make the widow dow-ablo. The mortgagee in this State has never been regarded as the owner of the land. The mortgage has always been considered as a mere security for the payment of money. 2 Clayt. 1 Vern. 575. Pow. on Mortg. 19.
   This case was kept under advisement till the nest meeting of the judges in Charleston, the 12th January, 1808, when Bay, J., de-dared the opinion of the whole court, all the judges present, except Thezevant, J., who was unable to attend by reason of sickness. The opinion, declared by Bay, J., was in substance the same as that prepared by Brevard, J., which is as follows.

The demandant, in this case, claims her dower of certain lands which her husband purchased prior to her marriage with him, from Joshua Hargraves, subject to a mortgage which Hargraves had given of the said land to Messrs. Mann and Foltz, which mortgage was unsatisfied at her husband’s death, and is so still. It is not stated in the brief, whether the mortgage was of a fee simple, or a term of years ; but it is taken for granted, that it is a mortgage in fee, being that sort of mortgage most in use in this country, though not now usual in England. 2 Bl. Com. 158. The claim of dower is founded on legal, equitable, and moral principles, and is much favored. Ch. Prec. 244. Co. Litt. 33. The rule of the common law is, that a widow is intitled to dower of all the lands, whereof her husband was seized in fee at any time during the coverture. Our act of assembly, concerning dower, is in affirmance of this right. 2 Bl. Com. 131. Co. Litt. 32. The principal question in this case is, whether the husband was seized in fee, of the land in •question, at any tim'e during the marriage, or not? It is a clear position, that a widow shall be endowed of a seizin in law, as well as of a seizin in deed; as where it was in the power of the husband to have had actual seizin, or possession, without further trouble or expense, than the mere exercise of the right of entry, or ■of taking actual possession. Co. Litt. 31. It is also clear, that a widow shall not be endowed of a seizin for an instant only, in cases where the estate is not intended to abide in the husband, but is in ¡transitu at the instant of the seizin, as in the case of fine and ren•der. Cro. Ja. 015. 2 Bl. Com. 130. The doubt in this case is, whether the husband was seised at all, either in law or in deed, ■of the land in question. In order to resolve this doubt, it will be necessary to investigate the doctrine of law concerning mortgages -of land, and inquire whether the principles, which have been established in equity on that subject, are sufficient, in a court of law, to ■support a claim for dower, under circumstances such as exist in this case ? Whether those principles can be applied, in the court of Common Pleas, to maintain the demand made in the present case? The law respecting mortgages has been altered in this State, by an •act of the legislature, passed in February, 1791. But this altera-lion docs not affect the ease under consideration, or any right which pre-existed. Mortgages, in England, appear to have become a subject of jurisdiction in the Court of Equity, almost exclusively. Pow. on Mortg. 14. In that court the traansaction is deemed a mere personal contract, for the loan of money. Pow. on Mortg’. 14. 2 Fonbl. 259. But on common law principles, the mortgage vests the fee in the mortgagee, and the mortgager holds only by his permission ; and the estate is only defeasible by payment of the debt, which the mortgage is intended to secure. Pow. on M. 80 and Seq. Doug. 21, 279. In the present ease, if the legal estate vested in Mann and Foltz, by the mortgage, and that mortgage remains unsatisfied, the estate of Mann and Foltz has never transferred, or annulled, and the fee is still in them ; liable, however, to the equity of redemption, or defeasible by the payment of the debt for which the land was mortgaged. If this be the light, in which the subject ought to be viewed, the demandant’s husband never was seized in fee of the land, either in deed, or in law. The right he acquired under the sale, pursuant to the directions of the Court of Equity, as stated in the brief, was only a right to the equity of redemption. An equity of redemption is, undoubtedly, an estate in land. It may be granted, devised, &c.; and in equity, the person intitled to the equity of redemption is considered as the owner of the land; and a mortgage in fee is considered as personal assets. But notwithstanding these considerations, and although it has been determined in equity, that a wife may have an equitable seizin oí an equitable estate, so as to intitle the husband to be tenant by the curtesy ; (1 Atk. 803 and Seq.,) yet it has been finally settled, by several concurrent decisions in equity, that the wife shall not be endowed of a trust estate of inheritance, or of an equity of redemption. 3 P. Wm.’s. 229. 1 Bro. 326. The wife of a cestui que use was not dowable at common law ; nor since the statute of uses is she dowable of a trust. The demandant may however redeem, and then claim her dower in equity, (2 P. Wm.’s. 702,) and may hold over for the proportions of those in remainder. Pow. on M. 313. For equity will lend its aid on a claim of dower. 2 P. W. 702. But till the legal state of the mortgagee has been extinguished, she has no right to dower, even in equity.

Note. Vid. 2 Saund. 46,3d ed. in the notes. See 3 Hen. and M. 328, 365, 386. Vid. 7 Johns. 278, Collins v. Torry. Demandant’s husband was seized during coverture, under Merrick, by deed, dated 1775. Merrick had before mortgaged in 1772, to a third person. This was allowed to be proved. A mortgage before foreclosure, not a legal estate, and widow is entitled to dower. Seo 6 Johns. 290, S. P. Not such a legal estate as a stranger can setup. Seo 1 Bro. c. 326. 3 Johns. 386. The mortgage cannot affect demandant’s claim. See 7 Johns. 282. The wife of mortgager dovvable. •

Motion rejected.  