
    William Affleck’s Administrator v. B. Snodgrass’s Administrator, Widow and Heirs et al.
    A mortgage was executed by S. and X, his wife, to A. Upon the decease of S., his administrator, in 1845, filed a petition for the sale of the real estate of S., including, as a part of the real estate, the premises mortgaged; alleging that A. held a mortgage, and making him and the widow and heirs of S. parties defendant, and further alleging that the widow was entitled to dower. A. was duly served with process; dower for the whole real estate was assigned in that portion of the premises which was covered by the mortgage; sale made of the same, subject to the dower assigned, and proceeds thereof paid to A.; and the residue sold free of dower.
    Held: On petition of A. to foreclose, etc., the mortgage, that he was concluded, as against the widow, etc., in respect to the dower assigned to her.
    Reserved in the District Court of Washington county.
    This, is a petition for the sale of mortgaged premises, to pay the debts secured by a mortgage which was executed by Snodgrass and his wife, now Julia Ann Douthitt, wife of John Douthitt, two of the defendants.
    The answers of Snodgrass’s administrator, and of Douthitt and'Wife, set up that the administrator of Snodgrass, the mortgagor, in 1845, petitioned to sell all the real estate of Snodgrass, including the mortgaged premises, to pay the debts due from his estate. Affleck, the mortgagee, was made party defendant, and duly served with process; an order to assign dower and appraise was made, and the dower of Julia Ann Douthitt in all the decedent’s real estate was assigned in 35 acres of the mortgaged premises. All the lands were sold free of dower except the 35 acres; that was sold subject to dower, and the proceeds thereof paid to Affleck, the mortgagee.
    The plaintiff claims that he is entitled, in this petition, to have the whole of the mortgaged premises sold as if no sale had been made, and the proceeds applied, first, in refunding purchase money to Julia Ann Douthitt, the purchaser at the administrator’s sale, and balance in satisfaction of his mortgage; or that the dower estate of Julia Ann Douthitt, being a life estate in 35 acres of the mortgaged premises, be sold, and the proceeds applied in satisfaction of the mortgage.
    
      Clark ij1 Ewart, for plaintiff, insisted:
    1st. The court of probate had no power to assign dower in lands mortgaged, where the dowress joined her husband in the mortgage, until the mortgage was satisfied; and hence the proceedings set up in the answer are void. 
      Sheafe v. O’Neil, 9 Mass. Rep. 9 ; Inhabitants of Raynham v. Wilmouth, 13 Metc. Rep. 415; Gilliland v. Administrator of Sellers, 2 Ohio St. Rep. 223.
    2d. The rights of dower in an equitable interest in lands, which was the interest of Snodgrass’s estate in the mortgaged premises, must be assigned in rents and profits in the equity, that is, the value of the premises after satisfaction of the mortgage. Swan’s Rev. Stat. 385, sec. 151.
    3d. The widow was a party to the mortgage, and a party to the proceedings of the administrator, set up in the answer; and in accepting her dower in land, in which she knew she had relinquished dower in the mortgage, accepted dower at her own risk and subject to all incumbrances. Jones et al. v. Brewer, 1 Pick. Rep. 314.
    4th. Nothing short of payment or sale of the mortgaged premises can discharge a mortgage. Davis v. Maynard, 9 Mass. Rep. 242.
    
      Whittlesey & Towne, for defendants Douthitt and wife, insisted:
    The purchaser at the administrator’s sale, took the land discharged of the mortgage lien. St. Clair v. Morris, 9 Ohio Rep. 15; Ewing v. Higby, 7 Ohio Rep. 201; Bank of Muskingum v. Carpenter’s Adm’r, Ib. 71.
    The dower estate of Mrs. Douthitt is not subject to sale to relieve the plaintiff. If he is aggrieved by the assignment of dower, his first step should be to have the order for the assignment of dower set aside and reversed.
   J. R. Swan, J.

The facts of this case show that the mortgagee was made a party defendant to the petition of the administrator', for the sale of the decedent’s lands, and was duly served with process. The petition of the administrator alleged that the widow was entitled to dower in the whole premises. The mortgagee did not answer, and the court ordered dower to be assigned; and dower was assigned in that part of the premises which were mortgaged, as well in satisfaction of the right of dower in the mortgaged premises, as also of the right of dower in premises not covered by the mortgage. The administrator then proceeded to sell, as unincumbered by dower, the premises not covered by the assignment of dower; and sold, subject to dower, the premises assigned to the widow, and paid over to the mortgagee the avails of the last mentioned sale. Now, if the mortgage still remains operative and unaffected by the assignment of dower, the widow must either lose her dower in all the premises, or the title of the purchaser from the administrator must be subjected to the dower estate.

That the court of common pleas, upon petition for the sale of decedent’s lands, may assign dower, is not a matter that can be questioned. The statute provides, that “ if the deceased left a widow entitled to dower, the court shall appoint three judicious, disinterested men of the vicinty to set off and assign, hy metes and bounds,” etc., “ the dower of the widow of the deceased.”

The cases determined in Massachusetts, it will be readily perceived by comparing their statute with ours, and the decisions in this state as to the legal estate of a mortgagee in lands, can have no application to the case before us. Besides, the jurisdiction of the court of common pleas over the assignment of dower, was complete, independent of its probate jurisdiction.

The question before us is not whether, where a mortgagee, who is not made a party to a petition for the sale of lands and assignment of dower, is affected or concluded by the assignment; but whether, if made a party, and dower is assigned in the mortgaged premises without objection, he can afterward assert that his claim to the premises is free from dower. We are of the opinion that he is concluded. The question whether the decedent left a widow, and whether she was entitled to dower, was a proper subject of inquiry as between the parties to the petition; and as against the widow and the purchaser at the administrator’s sale, the matter must be considered as judicially determined.

We are referred to the case of Gilliland v. Sellers’s Adm’r, 2 Ohio St. Rep. 223, as intimating by analogy, that the court, upon petition for sale of decedent’s lands, had no authority to determine whether the widow was entitled to dower or not. In that case, coupled with a petition to sell lands, the administrator asked and obtained from the court a decree, not simply determining the priorities of liens of mortgages, and the application of usurious interest to the discharge of a mortgage debt of the intestate, but also a decree “ for the cancellation of the mortgage securities.” The court say, and they decide only, that, upon a petition for the sale of lands, the administrator cannot proceed against creditors of the estate, to settle and adjust their claims by decree; and that a decree in such case, of a probate court, for the cancellation of mortgage securities, is beyond its jurisdiction.

If, in the case of Gilliland v. Sellers’s Adm’r, the probate court had, by reference to a master or otherwise, determined simply the priorities of mortgage and judgment liens, as the statute authorizes — Swan’s Rev. Stat. 385, sec. 148 — instead of settling by decree, as in chancery, not only the contested rights of creditors as to the amount and validity of the debts secured by those liens, but decreed the cancellation of securities, it is probable the judgment of the court would have sustained the proceedings of the probate court. Be that however as it may, we cannot find any thing in the facts or opinion of the court, in the case of Gilliland v. Sellers’s Adm’r, to authorize us to hold that the probate court had no jurisdiction of the question^ whether the widow was entitled to dower or not in the mortgaged premises.

Judgment for defendants.

Brinkerhorr, Scott and Sutlire, JJ., concurred.  