
    William P. Walker, Judge, &c. versus Fallet Griswold et al.
    
    
      Sept. 9th.
    
    
      A husband purchases land, and at the same instant mortgages it to the grantor; he afterwards mortgages to another person, his wife releasing her dower, pays off the first mortgage, and dies. Held, that the widow had a right of dower, subject however to the last mortgage.
    Debt upon an administration bond, dated May 10, 1825. The estate of Timothy Griswold, the intestate, was represent ed insolvent, and the administrators, one of whom was his widow, obtained license to sell his real estate for the payment of debts. The replication stated, as a breach of the bond, that the real estate was sold subject to the widow’s right to dower, when in fact she had, in the lifetime of the intestate, released her dower. The defendants rejoined that she had not released her dower ; upon which issue was joined.
    At the trial, before Putnam J., it was proved, that on the 11th of January, 1820, one Pyncheon conveyed the real estate to T. Griswold, who on the same day mortgaged it to Pyncheon to secure the payment of 2100 dollars. On the 22d of May, 1822, T. Griswold made a mortgage to S. Gris-wold to secure the payment of 1216 dollars, and in this last deed the widow released her dower. On the 24th of the same May the first mortgage was discharged.
    Under the instructions of the judge a verdict was found foi the defendants, subject to the opinion of the whole Court,
    
      Hubbard and Nash contended that a woman is not dowa ole of an equity of redemption ;
    
      Sept 10th
    and that the intesta e had only an instantaneous seisin, and so his widow was not entitled to dower. They cited Popkin v. Bumstead, 8 Mass. R. 491; Gibson v. Crehore, 3 Pick. 475; [2nd ed. 481, note 1 ;] Snow v. Stevens, 15 Mass. R. 278; [Rand’s ed. 280, note a ;] Clark v. Munroe, 14 Mass. R. 351.
    
      Whiting and Bishop, contra,
    
    cited Titus v. Neilson, 5 Johns. Ch. R. 542. Stearns on Real Actions, 381, 382.
   Per Curiam.

It is clear that after the mortgage to Pyncheon, the intestate was seised as to all persons except the mortgagee ; and it is settled that a widow is dowable of an equity of redemption. The first mortgage was discharged, leaving in force the mortgage to S. Griswold, in which the widow had released her dower. This release was co-extensive with the mortgage ; it extended no further ; and consequently the right of dower continued, subject only to that incumbrance.

Judgment according to verdict. 
      
       See Cass v. Martin, 6 N. Hampsh. R. 25; Gibson v. Crehore, 5 Pick. (2nd ed.) 149, note 1; Southerin v. Mendum, 5 N. Hampsh. R. 431, 432. But see Jackson v. Dewitt, 6 Cowen, 316.
     
      
       See Revised Stat. c. 60, $ 2; 4 Kent's Comm. (3d ed.) 44.
     