
    Mrs. Bogie, Widow of Bogie, against Rutledge.
    
      A widow who .joins her 1ms-baiul, in his life-time, in a mortgage to secure the purchase-money of a lot of land, but af-terwards refuses to go before Aa judge to acknowledge it, is not entitled to dower; because the instantaneous seisin of her husbands to enable him to make the mortgage back, makes it,a conditional estate, till the purchase-mo-Rti} is paid.
    UPON a motion to shew cause why the defendants claim for dower should not be set aside, and her petition under the act of assembly, dismissed.
    The facts, as stated and admitted, were, that the plaintiff, Rutledge, sold a lot of land-in Charleston, to David Bogie.» deceased, and tbe conditions of the sale were, that the pur» chaser should give bonds for the payment of the consideration money, payable by instalments, with a mortgage on the premises to secure the payment. After the terms were agreed on, Rutledge made the usual conveyances of lease and release in fee, to Bogie, for the lands ; and Bogie and his wife (the present applicant) joined in a mortgage, to secure payment of the bonds given for the purr base-money, which bore date as usual, the day after the conveyances for the lot. It happened, however, that at the time the mortgage, lease and release were executed by Bogie and wife, Mrs. Bogie was indisposed, and cook! not then wait on a, judge to surrender her right of dower in the land, agreeable to the conditions of the sale, but promised to do so after she recovered. In this situación matters remained for a considerable length of time, till Bogie died. After his death, the widow petitioned the court of common ideas, under the act of assembly, for her dower ; and the only point for the consideration of the court was, whether, under these circumstances, she was entitled to it or not ?
    Rutledge, as counsel for the plaintiff,
    and in support of the motion, relied on three grounds :
    1. That it was one entire contract, made upon a condition which formed an essential part of it, and which rendered the bargain incomplete, until such condition was performed.
    
      2. That the instantaneous seisin of the husband at the moment, was only to enable him to make the mortgage back J© the seller, to secure payment of the purchase-money ; and the fee, consequently, never could be considered as absolute in him, till the consideration was paid, but only a conditional one; and if so, then the widow clearly was not entitled to dower.
    3. That if the fee could be considered absolute in Bogle, yet, under the circumstances of the case, it was a fraud on the part of the wife, after joining with her husband in the mortgage, to refuse after his death, to go before a judge and surrender her dower agreeable to her promise, and she should not be allowed to take advantage of her own wrong.
    Upon the first ground, he submitted the case to the court, upon the plain aiid obvious principles of justice, and the essential parts of every contract, contending particularly, that wherever a contract was made upon certain specific conditions, it was not complete till those conditions were performed. That one of the conditions in the present case, was, that the land should stand pledged to Rutledge, the seller, till the consideration money was paid. It formed a part of the original contract, and although no mention is made of it in the release to Bogie, yet it ought to be recollected, that this release formed only a part of the contract, which is expressly referred to by other parts of the same contract, to wit, the mortgage — and is not to be taken sepa-» rately by itself. And then, when the whole is taken together, and all the deeds viewed, as forming different parts of one entire contract, it must appear evident that Bogie had only a conditional estate, and not an absolute one, till the consideration was paid. 2. Under the second head, he compared the present defendant, Bogie, to the widow of a copy-holder, and cited the case of Sneyd v. Sneyd, 1 AtL 442. Vphere the master of the rolls laid it down, that the instantaneous seisin of the freehold of the purchased copyhold estates in the husband, will not entitle his widow to dower. He also compared her to the widow of the conusee of a fine., and to the widow of a trustee. That a conusee of a fine, was a person to whom lands ai-e conveyed in a court of record, in order to dock entails, &c. upon condition that will immediately reconvey the lands back again, to the co* nusor, to him, his heirs and assigns for ever, which converts an estate tail into a fee-simple. In this case the widow is not entitled to dower. Co. Litt. 38, 39. So also in estates conveyed in trust for the use of another, the wiuow of the trustee shall not be entided to dower. 2 Lili. 624. 3. As the third ground involved in it a matter of fact, the counsel declined going into it, until he heard the opinion of the court on the two first.
    
      Lee was concerned for the widow in support of her claim, but did not go into an argument, probably because it appeared to him to have been one entire act; and such a momentary seisin, as under the circumstances of the case, did not entitle her to dower.
   The Chief Justice being the plaintiff in this case, left the bench as soon as the motion was made. The two re-mainingjudges,

Burke and Bay,

after considering the case, were of opinion, for the reasons and authorities urged against the motion, that the widow was not entitled to dower in the lot in question, and accordingly directed her claim to be dismissed.

N. B.

This point has been frequently determined in our courts since the above decision, that widows of mortgagors were not entitled to dower. See Crabb v. Macomb, vol. 2.  