
    Mrs. Harriet B. Crafts vs. The Ex’ors of William Crafts, deceased.
    A wife is not entitled to dower of land bought by the husband, and by him mortgaged to the vendor for the purchase money.
    THIS was an application on the part of Mrs. Crafts -for her dower in certain wharves in Charleston. It was admitted that Mr. Crafts had been seized of the wharves in question during his intermarriage with the demandant; but that they had been mortgaged, and that' the time of redemption was past previous to the marriage. It also appeared, that one of the creditors, to whom a mortgage had been given, was the person of,whom Mr. Crafts had purchased the property,' and that it was immediately. reeonveyed by way of mortgage for the purpose of securing the purchase money : that it was mortgaged to other cre-s ditors to secure other debts to a greater amount than the Value of the property. The act of 1791, (1 Faust, 65,) declares, “ that no mortgagee shall be entitled to maintain any possessory action for the real estate mortgaged, even after the time allotted for the payment of the money secured by mortgage is elapsed, but the mortgagor shall still be deemed owner of the land, and the mortgagee as owner of the money lent or due; and shall be entitled to recover satisfaction for the same out of the land in the manner set forth in the preceding clause of the act. On the part of the demandant, it was contended, that as the act declared that the right of the land should still continue in the mortgagor, Mr. Crafts was seized in fee during the marriage and at thé time of his death, and therefore his widow was entitled to'dower. The question was submitted to Mr. Justice Bay, who presided in Charleston, January term, 1821. Being of opinion that the widow was not entitled to recover, he dismissed her petition. This was, a motion to reverse that decision.
    
      
      Lance, for the motion.
    
      Toomer fy Hayne, contra.
   Mr. Justice Nutt

delivered the opinion of the court:

I do not think it necessary to follow the counsel over all the grounds which they have endeavoured to lead us in pursuit of the common law doctrine on this subject.— It is admitted that at the time these mortgages were given, the whole interest in the property, whether absolute or contingent, belonged to Mr. Crafts. That interest he vested in his creditors (the mortgagees) subject to redemption only by the payment of the money. It was not then in his power by any contract which he could make, or any act which he could do, not even by the contract of marriage as highly as it is respected in law, to impair the obligation of the contract which he had previously made, nor lessen the security which he had before given; and although the right still remained in him, it was subject to the incumbrance which he had created. ' The wife must take her dower as she takes her husband cum oners. She may come in and redeem the property, and then, and not till then, is she entitled to her dower.

The motion therefore must be refused.

Justices Colcock, Gantt and Huger, concurred.

Johnson, Justice, dissented.  