
    *Rachel Welch v. Valentine S. Buckins and others.
    Where A conveys land to B in fee, and B at the same 'time delivers to A a mortgage to secure the purchase money in whole or in part, the technical seizin of B does not confer upon B’s wife a contingent right of dower in the land, as against those deriving title at judicial sale of the land on the mortgage, although she did not join her husband in executing the mortgage.
    The rule is the same, whether A himself conveys the land to B, or procures C, who holds the legal title, to do so.
    Petition for dower. Eeserved in Stark coupty.
    The petitioner claims dower as the widow of Osee Welch. The defendants resist her claim upon the following state of facts:
    In 1836, William Henry, being the owner of the land, sold the same, by written contract, to Solomon Lind, but no conveyance was made to him.' On the 11th of July, 1839, Lind transferred the contract to said Osee Welch and John Eoutzong, and, on the same day, procured Henry to make a deed directly to Welch and Eoutzong in fee. The deed was so made; and was held by Lind until the 15th of the month, when he delivered it to Welch and Boutzong-, they, at the same time, delivering to Lind a mortgage on the land, to secure to him a, balance of the amount they had agreed to pay him for it. The petitioner did not join her husband, Welch, in the execution of the mortgage.
    In September, 1840, an order of sale issued from the court of common pleas of Stark county, under a decree rendered in foreclosure proceedings, previously instituted by Lind on said mortgage; and in November, 1840, the land was sold, on said order of sale, to Alfred Douglass. The sale was confirmed by the court at the November term, 1840, and the sheriff was ordered to make a deed in fee simple to the purchaser, which he did. The defendants derive their title, through intermediate conveyances, from this purchaser at judicial sale.
    *2T. P. Puntar, for petitioner.
    
      Pease & Church, and Alexander Bierce, for defendants, insisted that the petitioner was not entitled to dower, and cited Clark v. Monroe, 14 Mass. 351; Cunningham v. Knight, 1 Barb. 399; Gammon v. Freeman, 31 Maine, 243; Gillman v. Moore, 4 Leigh, 30; Stowe v. Tiff, 15 Johns. 458; Holbrook v. Finney, 4 Mass. 566; 4 Kent’s Com. 38.
   Sutliff, J.

The petition is filed under the statute of January 28, 1824, which provides that “the widow of any person dying, shall be endowed of one full and equal third part of all the landsj tenements, and real estate of which her husband was seized as an estate of inheritance at any time during the coverture,” etc.

It has always -been held, in this state, that a mere technical seizin, without a beneficial interest in the estate, is not sufficient to entitle the widow to dower. Thus, when the husband, during coverture, has purchased lands with the money of another, and has taken the title in his own name, under such circumstances as to raise a resulting trust in favor of the party whose money was so invested, it has been held that the widow of the husband so seized was not entitled to dower. Derush and wife v. Brown et al., 8 Ohio, 412.

It has also been held, that where the husband purchases lands, takes a conveyance, and mortgages the same back to secure the purchase money, the claim under the mortgage is superior to the claim of tho widow for dower. Rands and wife v. Kendall, 15 Ohio, 671; Greene v. Greene, 1 Ohio, 335. And the same doctrine has been held in other states. -See the cases of Stowe v. Tiff, 15 Johns. 458; Gale v. Ward, 14 Mass. 352, and other cases to the same effect.

The fact that the conveyance to Osee Welch and John Routzong was made by William Henry, instead of the same having been made by Henry to Lind and by Lind *to them, does not at all affect the case. The substance and not the form, merely, of the transaction, is to be regarded. And viewed in this light, the transaction is simply the conveyance by the vendor Lind, and receiving back from his grantees a mortgage for the security of the purchase money. The money so secured by the mortgage was not paid, and the lands were subjected, under such mortgage, to the payment. The defendants hold under such mortgage sale. Theirs is, consequently, the title held by the mortgagee, and superior, in equity, to the claim of the petitioner.

The petition must stand dismissed with costs.

Br.inker.hoee, C. J., and Scott and Gholson, JJ., concurred.

Peck, J., was absent.  