
    Beulah French versus Edward D. Peters.
    The statutes of 1821, relating to the mode of relinquishing a right of dower, superseded all former ordinances, Acts and usages, upon that subject.
    The statute of 1821, chap. 40, sect. 6, under which a married woman might relinquish her right of dower by “ deed under her hand and seal,” gave no efficacy to her deed, unless the husband joined in its execution.
    Thus, a release of dower by a married woman, executed while that statute was in force, and in which the husband did not join, though indorsed upon his conveyance, and alleged to be in consideration of the sum mentioned in the conveyance as the price paid by the grantee to the husband for the land, constitutes no bar to her claim of dower.
    An assignment to a widow, by the Court of Probate, of an entire parcel of land as her dower, instead of one third in each of the parcels of which her husband died seized, has been denominated an “ assignment against common right.”
    When an assignment made against common right has been avoided in a portion of the land assigned, by virtue of a foreclosed mortgage given by the husband, the widow is restored to her original right of dower in such portion.
    On facts agreed.
    Dower, unde nihil habet, brought by the widow of Zadoc French, who, at one period during her coverture with him, owned the land upon which the Penobscot Exchange House stands, and also many other tracts of valuable land in the city of Bangor. This suit is brought to recover dower in the Exchange House lot. On January 19, 1829, the husband, in order to raise money for his own use, mortgaged that lot to Eben. French, alleging the consideration to be $12,000.
    The demandant did not join with her husband in executing the deed. But, on the 4th of February, 1829, she executed upon the back of that deed, an instrument under her hand and seal, relinquishing to the mortgagee her right of dower, reciting therein that the relinquishment was done by the consent of her husband as testified by his being a party thereunto. The husband however did not join with her in that instrument. The consideration of her said relinquishment was stated to be “ the within named sum of $12,000.”
    The mortgagee, on the next day, (5th February, 1829,) assigned the mortgage to this defendant, Peters.
    In July, 1831, after her husband’s death, she applied to the Probate Court for an assignment of her dower, and thereupon several entire parcels of the land, including the Exchange House and its lot, were assigned to her in dower, instead of one-third in each of the parcels, of which her husband was seized at bis death. To this assignment she and the heirs assented, and she entered into the possession of the parcels so assigned.
    In 1842, the mortgage was fully foreclosed, and the demandant was thereupon evicted of the most valuable of the parcels assigned to her in dower.
    Zadoc French’s administrator sold lands belonging to the estate, having been duly licensed, on giving to the Judge of Probate a bond, (upon which this demandant was a surety,) to account for the avails. He, however, misappropriated a large amount of the proceeds of the sale.
    The grounds taken in defence were : —
    1st. That the demandant’s right of dower was barred by the relinquishment which she had executed and indorsed upon the mortgage deed ; —
    2d. That the • assignment of dower made by the Probate Court is a bar to this suit; —
    3d. That the mortgage debt due to the tenant, Peters, ought to have been paid from the avails of the land sold by the administrator, upon wh'ose Bond the demandant, as a surety, will be liable to repay to the tenant the balance of that debt. And that debt will be made the larger by her recovery in this suit, and to the very amount of such recovery, because it lessens to that extent the value of the property upon which ■the mortgage was foreclosed. Wherefore, to avoid circuity, the demandant must be estopped to recover in this suit.
    
      Moody, for the demandant.
    The instrument, executed by the demandant upon the back of the mortgage deed, is no bar to her right of dower. It was the deed of herself alone, unapproved by her husband. It does not recite the mortgage as a consideration. That it was indorsed upon the mortgage has no effect to make it a part of the mortgage, any more than an assignment upon a mortgage becomes a part of the mortgage. It bears a subsequent date, and was made at a subsequent time. It shows upon its face that she did not intend to be bound by it, unless her husband should join in its execution.
    But, if she did design and attempt to bar her right of dower by that deed, it was not effectually done. At the common law the sole deed of a covert feme is merely void. 7 Mass. 14; 14 Maine, 435.
    It becomes important to ascertain what modifications of the common law have been introduced by the legislature. The colonial ordinance of 1641, by implication, provides that a wife might bar her dower by a writing acknowledged before a magistrate. Anc. Charters, page 99. That ordinance was abrogated upon the revocation of the first charter in 1685. The principle, however, was revived by two provincial statutes passed in 1692. Anc. Charters, chap. 213, 229. These statutes were virtually repealed in 1697 by the proviso to the “Act for registering deeds.” Anc. Charters, page 303 ; Rowe v. Hamilton, 3 Maine, 63; Fowler v. Shearer, 7 Mass. 14. These cases conclusively show that after the passing of the Act in 1697 “ for registering deeds,” no statute was in force to authorize a feme covert, by her deed alone, to bar her right of dower.
    In Fowler v. Shearer, there is a remark of Parsons, C. J., that a wife’s right of dower was sometimes barred by her separate deed, in which the sale by the husband was recited as a consideration.
    The remark was uncalled for by any thing in that case. It was mere dictum. But the “ separate deed” there spoken of did not mean her sole deed, but only a subsequent deed. And there is nothing to show that, in such subsequent deed, it was unnecessary for the husband to join. This conclusion is equally grammatical, and is in accordance with the spirit of the case and with the context.
    The argument of the opinion shows that the deed of a married woman was void at the common law, but that some cases existed by usage where it might operate to bar her dower ; viz.: — Where she joins her husband in conveying her own estate ; — where she joins in his deed of his own estate, for the purpose of relinquishing her dower ; — and where by a deed, distinct and separate from his conveyance, she relinquishes dower. Can it be questioned, that by this last expression, used in such a connection, there must also be meant that the husband should join in the deed ? Shaw v. Russ, 14 Maine, 435. The dictum was based upon a supposed usage. But there is not, and there never was, such a usage.
    C. J. Weston, in Shaw v. Russ, says, “as to a usage to this effect, we are not aware that an instance has been presented' to the consideration of the Court there, (in Massachusetts,) and this is the first attempt of the kind, which has come to our knowledge here.”
    The deed of a feme covert, in which the husband does not join, is void. Andrews v. Hooper, 13 Mass. 476. The dictum of Parsons, C. J. if intended to apply to the deed of the wife alone, is denied by Story, J. in Rowell v. M. fy B. Manf. Co. 3 Mason, 347. At any rate, such a deed, in order to be operative, must recite the husband’s conveyance as a consideration. Such is not the character of the demandant’s deed. It recites a different consideration. But we consider the case of Shaw v. Buss, decisive.
    With regard, then, to the instrument of Feb’y 4, 1829, there is nothing left for the defence, except what argument may be derived from the language, “ or where she may have relinquished her right of dower by deed under her hand and seal,” found in statute of 1821, chap. 40, sect. 6. But the obvious answer to that argument is, that by the deed, there referred to, is meant a deed according to lawin other words, a deed in which the husband joins. I am not aware of any case, in which her sole deed has been upheld under that statute.
    The provision is nothing more than a transcript of Massachusetts statute of 1783, chap. 37, and that of 4 & 5, W. and Mary, chap. 16, sect. 5, which Story, J. construes as not intended to let in any usage or practice, not consonant to the principles of common law, but merely to refer to the “ex-tinguishment of dower in any legal manner whatsoever.”
    The commissioners, Avho compiled the R. S., have shown their understanding of the provision by R. S. chap. 95, sect. 9, Avherein it is expressly said that a subsequent deed “ executed jointly with the husband,” is necessary.
    This certainly may fairly be regarded as an exposition on the part of the legislature, of their views of the existing law as to releasing dower.
    But whatever may be the construction on this part of the clause, it is a perfect ansAver to say that the instrument of Feb. 4, 1829, if intended for a deed, was but a joint deed, uncompleted and therefore inoperative.
    No defence can be drawn from the assignment of dower, made by the probate court. The defendant, by the foreclosure of his mortgage, divested the demandant of all title and claim to the Bangor Exchange House. The doAver assigned her in that property was then taken away by that foreclosure. She has had no dower or equivalent for dower in these premises. The assignment of dower which she accepted was inter alios. The defendant was not affected by it. As to him, it was a nullity. Sheafe v. O'Neil, 9 Mass. 9; Wilkins v. French, 20 Maine, 111. Neither was it a release or in the nature of a release. And if it were, it could not be pleaded where there is no privity. A release of dower to a stranger, under whom the tenant does not claim, is not pleadable in bar of dower. Pixley v. Bennett, 11 Mass. 298.
    
      J. A. Peters, for the defendant.
    The demandant is barred by her release of February 4, 1829. The effect of that instrument is to be found in the Acts of 1821. The chap. 36, §. 2, provides that nothing in the Act should bar a widow of her dower, who did not join with her husband in such sale or mortgage, or otherwise lawfully bar or exclude herself. Chap. 40, sect. 6, provides that the widow shall be entitled to dower in all lands of which her husband was seized during coverture, except where she may by her own consent have been provided for by way of jointure prior to the marriage or where she may have relinquished her right to dower by “deed under her hand and seal.”
    The legal doctrine upon this point is found in the opinion of Parsons, C. J., in Fowler v. Shearer, 7 Mass. 14 and 20. That opinion has ever since continued to be the law in Massachusetts. 9 Mass. 143, 149, 161, and 173 ; 8 Pick. 536. The same has been the law of New Hampshire. Shepherd v. Howard, 2 N. H. 176 and 507, and cases there cited. In this State, (3 Greenl. 63,) the doctrine of the Massachusetts cases is discussed at length by Mellen, C. J. and approved and adopted. Though the case of Shaw v. Russ, 14 Maine 432, undertakes to modify, it by no means overrules it. The marginal note does not correctly indicate the point decided. The decision went upon the ground that the subsequent and separate deed of the wife “ was not made in consideration of the husband’s conveyance,” but for a consideration “ altogether independent and distinct, so that it is not sustained by the case of Foioler v. Shearer.”
    The case of Russ v. Shaw proves our position, for, in the release of the demandant, indorsed upon her husband’s deed, she declares that it was made “ in consideration of «the within named §12000 paid” to her husband, &c. this being done “ in fulfillment of his and my intention to convey a clear title by virtue of the within written deed.”
    Thus the release was amply expressed to be in consideration of her huband’s conveyance; so that if Russ v. Sha.w in some respects limits Fowler v. Shearer, it however leaves our defence fully within the folds of both cases.
    Judge Parsons asserts that it had been usual to make such instruments. He knew then much better than we can ascertain now, what every day practice, what the usage was, and what the law was understood to permit; and he embodied it in 7 Mass. It was acquiesced in as the law of New England. Thousands upon thousands of instruments have undoubtedly been drafted in accordance with the rules laid down in that case. It is too late to disturb it. And although C. J. Weston undertook to cavil at it a little, he left it unmarred and unimpaired.
    Judge Story too, who loved to magnify the greatness of great men, and then show where he had found they Avere mistaken, in a case hereafter named, undertook also to limit Parsons’ opinion, but at same time said of him “ no man was better acquainted with our local law.”
    Neither Ayas the law of Massachusetts overruled in 3 Mason, 347, cited by demandant’s counsel. That case undertook to say that the case of 7 Mass, must be understood as making a separate deed of the wife valid to release her doAver Avhen her husband does not join Avith her, only in cases Avhere her conveyance was in consideration of his conveyance, and was for the same consideration. The case went off upon that point, in the same manner as did our own in 14 Maine. So that the opinion of Story Avith that limitation or rather construction of Parsons’ opinion, actually confirms our defence.
    
      There is another decision in the case from 3 Mason, which makes onr defence at bar a good one. Judge Story, discussing in that case what Parsons intended by “ a separate deed,” says, “ If it means that it may be done by a separate deed of the wife executed after the deed of her husband, but on the same day, or as part of the same transaction, then there is no difficulty in reconciling it with the language of the statute, for the wife may truly be said to join in the sale, when she is a party to it at the time it was made, whether she join in her husband’s deed, or execute a separate deed.’’'’
    
    
      We say that Mrs. French’s release on the back of her husband’s deed of mortgage, was a part of the same transaction.
    
    The facts agreed state, that Zadoc French made the mortgage to Eben, his son, to raise money upon for himself, Zadoc. It was not therefore a mortgage, in the ordinary course of business, but was made in trust to Eben for Zadoc’s benefit. Therefore in legal effect, at all events in equity, Eben was nothing more than a conduit of the title for convenience sake. He held the legal title for his father, as his father’s, until, as his father’s agent, he passed it to Peters for money which was procured for and went to Zadoc. 2 Fairf. 1; 2 Pick. 508 ; Warren v. Ireland, 29 Maine, 62.
    Eben took the deed January 19, 1829, and it was recorded on same day, undoubtedly by Zadoc, and on 4th February, A. D. 1829, received the release of his mother, and on the fifth, next day following, assigned the mortgage and sold the notes to Peters for his father. Her release is for same consideration expressed in the mortgage deed. She recites the deed, fully admits and acknowledges it, makes hers a part of his deed, couples them, concludes her deed by the words “ as witness our bands and seals this day, &c.” Eben all the time holding it in his own hands as an uncompleted conveyance, till his mother had signed, before Peters would buy.
    There cannot be any question that delivery of that assignment to Peters, was in legal effect the first delivery that was ever made of the mortgage deed. It was handed Eben, to deliver Peters on 5th February. Till that day it was precisely the same as if it had remained in Zadods own hands.
    
    It was never delivered Eben to be the property of Eben. Eben paid no consideration for it — did not claim it. The making of the mortgage, and the release of dower'and the assignment of the mortgage, were all for one and the same consideration. They were all made for one purpose, were all delivered at one time to Peters, who took from Zadoc French, or from Eben for Zadoc, all the papers, and paid the money.
    How else can this be than one transaction ? How can it be said there was any delivery till that to Peters ?
    The practice of executing a deed by the wife, in order to bar her claim to dower, at a time many days subsequent to that on which her husband had executed it, is common and unobjectionable. Frost v. Deering, 21 Maine, 156. Our case is within that decision.
    In the case, 3 Mason, Judge Story seems to think, if the husband’s assent is necessary to the wife’s deed, that it may be by parol. His consent must be presumed in this case, because it was done for his benefit. More than that, the full consideration was paid him, or Eben for him, after her release.
    “ Where on one side of a paper was a deed apparently absolute, dated and duly executed, and on the other side a writing, in the usual form of a condition to a mortgage, without date, signature or seal, this condition was a part of the deed.” ■Stocking v. Fairchild, 5 Pick. 181.
    How much stronger is the argument in this case, that her release was a part of the deed ?
    The question of plaintiff’s dower in these premises has been before this Court several times before. Wilkins v. French, 20 Maine, 111; French v. Crosby, 23 Maine, 276 ; French v. Pratt, 27 Maine, 381.
    In each of those cases the mortgage deed and the assignment now in question were before the Court, and parts of the cases ; and in each case it was assumed by the counsel on both sides, and stated in the/opinions of the Court, that the plaintiff, had by her separate release after her husband’s deed, released her dower. It was in neither case regarded as a question.
    The case 27 Maine, 381, decides this case. The only difference between the cases is, that the premises now in question are a portion of the very dower assigned to the demandant. But on principle this difference is nothing; it is only in feature.
    When the widow was endowed against common right and accepted the assignment made in that way, it barred her from obtaining it in any other mode, she abides by whatever rights she can obtain in that way, she cannot be endowed anew. 27 Maine, 381.
    The accepting of that assignment was a release of all other right or mode of dower. If she had a common law claim of dower in defendant’s property, which she could demand and obtain by an action, she released it by the acceptance of that assignment.
    She does not claim any thing that was given her by that assignment now, but something else. By that assignment she was put into the possession, with claim of freehold, of the whole of the premises in question, she now abandons that claim, or has been defeated of it, and claims one third of the same in right of dower, which claim, in that mode, she is estopped to make.
    It was decided in French v. Pratt, that when she received the Exchange House property, she received it subject to incumbrances, all incumbrances made by the husband. The cases cited by Court and counsel are full authority to that effect. In this connection I will also cite, as perhaps analogous upon principle, the cases in 13 Wend. 553 : 5 Mete. 277.
    Her right to dower in the various premises of her husband of which he died seized, (and this comes under that head,) was merely an inchoate right, and lies only in action till assignment.
    After assignment she is considered as holding immediately from the death of her husband, so that the heir is not considered as having ever been seized of that part of his ancestor’s estate, whereof the widow is endowed. Cruise on Real Property, Title 6, Dower, chap. Ill, sect. 24.
    Her endowment was against common right. This was more beneficial to her than to have taken a third in every lot of which her husband died seized. She accepted that endowment, and it was a freehold, and she took it subject to all incumbrances. 27 Maine, 381.
    If she continues her husband’s seizin, she continues it subject to the incumbrances, and his seizin in this case having been subject to a mortgage, it must defeat the widow of her claim till paid, and if, as in this case, it is absolute, her rights are gone.
    Another ground of defence is, that the plaintiff signed the bond which Eben French gave for selling land and paying the debts of the estate. Upon that bond she would be liable to Peters for the misconduct of the administrator. As his mortgage has become foreclosed, the presumption is, that it was of more amount than the Exchange House in value. He could therefore maintain an action against her. She is then estopped in this suit, so as to avoid circuity of action.
    Permit me now to refer the Court to a beautiful arrangement of the facts of the case, and a clear exposition of the law upon them in the argument of Mr. Cutting, in the case of French v. Pratt. It is a handsome structure, upon a strong basis, and will endure as long as truth can last. It saves me much labor, and does him much honor. I shall admire to see the degree of his composure, if in the close of this case he shall undertake to tear that structure in pieces.
    
      Cutting, in reply.
    My associate has proved, I think, that the case of Fowler v. Shearer, if it ever was law, has ceased to be so.
    The pretence that the statutes of 1821 do not require a deed in which the husband shall join, he has also fully obviated.
    The defendant contends that the release upon the back of the deed is to be viewed as a part of the same transaction with the giving of the deed. But it cannot be so. The acts did not occur upon the same day. A bond of defeasance, in order to constitute a mortgage must be of the same day with the deed, and intended at the time to be a part of the same transaction.
    The case of French, v. Pratt, upon which the counsel so strongly relies, was essentially different from this. The demandant had been endowed against common right; that is, she had taken an assignment of certain entire parcels of land for her dower, instead of one third in each parcel. In that case she sued for dower in one of the parcels which had not been assigned to her. In this case her claim is for dower in a parcel which had been assigned to her, but of which she was evicted by the foreclosure.
    The demandant’s suretyship upon the administrator’s bond can operate as no estoppel to this action; most certainly it could avail nothing till after judgment. If sued upon it, she might defend upon several grounds. Among other things, proof that she liad been deprived of this dower, by failing to recover in this suit, would be a defence.
   Shepeey, C. J.

— The tenant derives his title to the premises by virtue of a conveyance in mortgage made by the husband of the demandant to Ebenczer French on January 19, 1829. The demandant did not join with her husband in that conveyance, but by a separate deed written upon the back of it, and executed by her alone on February 4, 1829, she relinquished to the mortgagee her right of dower. She recites in that deed, that this is “ done by the consent of my said husband, testified by his being a party hereto,” but the deed contains no other language suited to indicate, that her husband was to be a party to it. As the consideration is stated to be “ the within named sum of twelve thousand dollars paid to him, the words first named, may have reference to the husband’s being a party to the within deed.

Whether the deed executed by the demandant operated as a valid relinquishment of her right of dower, is the question first arising for decision.

It has become part of the history of this branch of the law, that Parsons, C. J. in the case of Fowler v. Shearer, represented the authority of a wife to bar herself of dower by deed, to have been derived from an ordinance of the province of Massachusetts Bay and from an act of the provincial legislature, and that he states it to have been •“ sometimes done by her separate deed subsequent to her husband’s sale, in which the sale is recited as a consideration, on Avhich she relinquishes her claim to doAver.” He refers to it also as a usage and as New England common laAV. What the usage was, as it respects the mode of execution by the wife, there was no means of ascertaining except from the remarks of the chief justice, and those have not been regarded as free from ambiguity.

When the same question came under consideration in the case of Rowe v. Hamilton, 3 Greenl. 63, the ordinance and usage were not regarded as of practical importance as it respected deeds executed after the passage of the provincial act of 1697, for the court considered, that all previous statutes and provisions Avere thereby superseded. The act last named could have no effect upon such conveyances made after the passage of the Act of March 10, 1784, directing the mode of transferring real estate: and this act. was superseded in this State, by the Acts of Feburary 19, 1821, chap. 40, and of February 20, 1821, chap. 36.

The former Ordinance, Acts, usages, and decisions, can have no further effect than to aid one in arriving at a correct construction of the acts last named.

The construction of the Ordinance, Acts and usages of Massachusetts was considered in the case of Rowe v. Hamilton, and of Powell v. Monson and Brimfield Manf. Co. 3 Mason, 347, and of Shaw v. Russ, 14 Maine, 432. In the latter case the Court concluded, that a release executed by the Avife alone on January 9, 1817, for a consideration paid to the husband, was unauthorized by the statute then in force, and that it was void.

It having been stated in the case of Fowler v. Shearer that the sale by the husband should be recited as the consideration for the separate deed of the wife, it has been considered in some of the subsequent cases to have been an essential ingredient to a valid relinquishment of dower by the wife.

Whatever foundation there may have been in the usage referred to for such a position, there will be found none in the language of the Act of 1784, or in any of the preceding or subsequent enactments. Whether an intention ever did exist or could have existed and have been so frequently carried into effect in the execution of such deeds as to become a usage so as to make the validity of a deed depend upon such a recital may well be doubted.

The provisions of the Act of February 20, 1821, in force, when the deed of the demandant was executed, declared that a widow should not thereby be deprived of her dower “ who did not join with her husband in such sale or mortgage, or otherwise lawfully bar or exclude herself from such dower or right.” The latter clause, as stated in the case of Powell v. Monson and Brimfield Man. Co., has never been construed to let in any usage or practice not consonant to the principles of the common law. It doubtless had reference to modes recognized by that law as effectual for such a purpose, such as jointures, marriage settlements, and accepted devises. If this be the true construction of that clause the only mode provided by that statute for a relinquishment of dower by the conveyance of a wife, was by her joining with her husband. By the provisions of the other statute, chap. 40, sect. 6, a widow is entitled to dower, except when by her own consent she has been provided for by a jointure or where she may have relinquished her right of dower by deed, under her hand and seal.”

It was not the purpose of that statute to prescribe the kind of deed, which should have that effect, but to declare, that when she executed a deed under her hand and seal, that would have the effect to relinquish her dower, it should operate as a bar. A deed executed by her with her husband is a deed under her hand and seal. One executed by her alone, the law does not recognize as her deed. The words of the statute, by deed under her hand and seal, are fully satisfied by a reference to the law, to ascertain, what would be her deed ; and they do not call for a construction, that would make any instrument signed and sealed by her a valid deed. If a construction should be given to these words, which would confer powers not known to the law, that clause of the statute would be in conflict with the provisions of the statute, chap. 36, § 2; and by the provisions of one statute she could only bar herself-of dower by joining with her husband, and by another she could do it alone without the aid or consent, and even against the will of her husband.

It is worthy of notice, that by the Revised Statute, chap. 95, sect. 9, provision is made that a wife may be deprived of her dower by joining with her husband or with his legally authorized guardian in a deed releasing it. In a note appended by the commissioners of revision to that chapter and section as presented by them it is said, there have been differing opinions on the subject of a married woman’s release of her right of dower as to the mode. The better and the received opinion now is, that the law on the subject is correctly stated in this section.”

The Legislature enacted the section, to which this note was .appended, with some verbal but not substantial alterations, thereby presenting, as it were, a legislative sanction to such a construction.

In the cases of Wilkins v. French and of French v. Pratt, the opinions state, that the demandant had relinquished her right of dower in the premises, but it is so stated historically only in a recital of the facts, and not as a matter considered and decided by the Court.

The deed of the demandant must therefore be regarded as inoperative and ineffectual to release her right of dower in the premises.

The next question presented is, whether the assignment of dower made by the Probate Court is a bar to this action.

A [though dower may be assigned to a widow in an estate conveyed by her husband during coverture in mortgage, that assignment cannot be valid against the title of the mortgagee, without an extinguishment of his mortgage. When the mortgage is foreclosed, his title commences from its date, and the widow can have dower only in that estate as in one conveyed by the husband, and can receive only one third part of the rents and income; and an assignment by the heirs or by the Probate Court of the whole estate as dower, is avoided by a foreclosure of the mortgage.

It is insisted, that an acceptance of that assignment by the widow is a bar to an action at law to recover her dower, and that it was so decided in the case of French v. Pratt.

That case and the case of Jones v. Brewer, decide only, that an assignment of dower against common right and an acceptance of it, deprive a widow of her right to dower in lands, in which dower was not assigned, not in lands in which dower was assigned. Nor are the principles or authorities on which those decisions were based, applicable to a case like the present.

The rule as stated by Lord Coke is, that if the heir endow the widow of certain lands, of which the husband died seized, in satisfaction of all dower, as well in the lands of his feofees as in his own lands, the several feofees shall take advantage of it, whether she be deprived of the benefit of such dower or not.

This rule does not affect the relation existing between the “ widow and the owner of lands, in which dower has been assigned.

Tf a widow be endowed against common right in several tracts of land, one of which had been conveyed in mortgage, by the foreclosure of which she is deprived of her dower in that tract, the owner of it cannot plead to an action of dower commenced by her, that dower was assigned to her in other lands, in satisfaction of all dower. When thus deprived of a, part of her dower by the act of the mortgagee or his assignee, no injustice is' done to him by considering the assignment of dower so far void as to enable her to recover her dower in the premises, as she might have done, if her dower had been assigned according to common right. His estate is not subjected to any greater burdens on account of dower, than it might have been, had no such assignment been made. While no injustice is done to either by considering the parties after such avoidance of the assignment of dower, as remitted to their original rights, it appeai-s to be the only mode, in which the rights of the widow can be protected.

If a husband should die seized of one tract of land only conveyed by him in mortgage, the widow, according to the case of Wilkins v. French, should have her dower assigned by the Probate Court; and if she had no other property, she might be deprived of her whole dower by a foreclosure of the mortgage, unless such assignment were held to be good as against him as well as ' against the owner of the equity of redemption. She might thus lose her whole dower without fault on her part, or on the part of the mortgagee ; and if the assignment made by the Probate Court were to be regarded as an effectual bar to an action to recover her dower in the same land, the owner would be relieved from her claim to dower in land clearly subject to it, by presenting an assignment made by the Probate Court, as ineffectual to give her dower as against him, and yet as effectual to bar her action at law to recover it. ■ Such an assignment cqnnot be considered as effectual for one purpose and as void for another purpose, so far as it relates to the same estate. Nor is there any sufficient reason to distinguish such a case from one like the present, in which the assignment has been avoided in part only, so far as it respects the land, in .which the assignment has been avoided.

The strength of the position presented in defence may be tested by considering it, as it would be presented by a special plea setting forth an assignment of dower made to the demandant by the Probate Court and an acceptance of it by her, to which a replication had been made setting forth the execution of the conveyance in mortgage, its assignment to the tenant, and its foreclosure, by which the assignment of dower had been avoided so far as it respects the premises, and that to this replication there had been a demurrer. Judgment could not be rendered for the tenant without deciding, that proceedings which had been avoided so far as it respects the premises, were still operative to bar an action to recover dower in them.

The conclusion is, when dower has been assigned against common right, and such assignment has been avoided in certain portions of the laud by the acts of the owner, both parties are restored to their original rights in such portions.

A third ground of defence presented is, that the demandant was surety on the bond of the administrator on her husband’s estate, who has misapplied a sufficient amount of that estate to have paid the mortgage held by the tenant, who would thereby have been exempted from any loss occasioned by a recovery of dower.

This assumes, that the premises after the recovery of dower will be insufficient to pay the whole of the debt secured by the mortgage, and that a suit upon the bond of the administrator could be maintained to recover for any loss occasioned by the recovery of dower. Neither this, nor some further grounds of defence presented, can be regarded as sufficient to prevent a recovery by the demandant.

Tenant defaulted.  