
    Olive McArthur v. Nelson Franklin.
    1* A widow, who, in the lifetime of her husband, united with him in a mortgige of lands, of which he was seized in fee, has, in equity, after his death, a right to redeem.
    2. A foreclosure, during the lifetime of the husband, by suit in chancery, to which the wife is not a party, does not bar her equity of redemption.
    8. Process against, and service thereof on, the husband alone does not effect her appearance.
    Petition for dower. Demurrer to answer. Reserved in the district court of Pickaway county.
    On January 21,1842, Allen C. McArthur and Olive, his wife, united in a mortgage to the Bank of Circleville, of certain lands, of which he was then seized as an estate of inheritance, to secure to the bank the payment of $6,000, his indebtedness to the bank.
    The mortgage was in the usual form, conveying the premises to the bank in fee, subject to the condition, that on payment of the indebtedness at maturity, etc., the conveyance should be void; “otherwise, to be and remain in full force and virtue as a mortgage to secure the payment of said sum of money.”
    The plaintiff united with her husband in the granting part, and in the due execution of the mortgage, but her dower, in terms, was not expressly released.
    Allen C. McArthur being dead, the plaintiff seeks to be endowed in the lands mortgaged, and sets forth in her petition.
    That on the 2nd of November, 1842, the condition of the. mortgage being broken, the mortgagee filed a bill in chancery against said Allen C. McArthur and the plaintiff, praying for a foreclosure of the equity of redemption and sale of the mortgaged premises, to satisfy said indebtedness; that no process was issued against, or served on her, or her appearance in any way effected iñ that behalf, nor any decree rendered against her. That at the April term, 1843, a decree was rendered that said Allen C. McArthur should pay $6,546, etc., witbin twenty days, to the bank, or, in default, that the mortgaged premises should be sold, etc. That such proceedings were had in that behalf, that the premises were sold to Joseph Olds, the sale confirmed and deed made, and so much of the proceeds as was necessary to pay the mortgaged debt applied thereto, and the residue, to satisfy certain judgments recovered against said Allen C. McArthur, after the execution of the mortgage. That Olds afterward conveyed the premises to the bank, and that the bank conveyed the same to the defendant, Nelson Franklin. That Olds, the bank and the defendant, have had possession and enjoyed the rents and profits of the premises since July, 1844, and that the rents and profits exceed the mortgage debt, taxes, interests and costs; but, if not, she proposes to pay any deficiency necessary to redeem the premises from the mortgage, so far as to entitle her to dower therein, and prays that dower be assigned, etc.
    The answer sets up the mortgage and the proceedings in chancery upon it at large, including the sale of the premises, the confirmation and deed to the purchaser, in pursuance thereof, etc., and adniits that no process was issued against, or served on the plaintiff in the suit to foreclose the mortgage, and that no decree was rendered against her. A subpena in chancery was duly issued against, and served on, Allen C. McArthur, the husband of the plaintiff.
    The plaintiff demurred to the answer, and, upon the questions thus raised, the case was reserved for decision in this court.
    
      A. G. Thurman, for plaintiff, argued:
    I. The inchoate right of dower of a married woman, in lands of which her husband is the legal owner in fee, though not technically an estate, is, nevertheless, an interest in the lands. And it is a valuable interest, a release of which is a good consideration for a promise to pay her for it, or for a conveyance to her, or to a .trustee for her use. Bullard v. Briggs, 7 Pick. 533; Garlick v. Strong, 3 Paige, 440; 4 Kent’s Com. Lec. LV, sec. III, page 50; 8 Barb. 620, 623.
    II. That an inchoate right of dower is not assignable, in nowise militates against the foregoing proposition. It has been sometimes called a “ chose in action ” — the reason for which, is that an assignment of dower is obtained by action. A chose in action, id est, a thing in action, is the antithesis, or opposite, of a thing in possession; and is called, “ in action,” because the possession or enjoyment of it can not be obtained without an action. And as, formerly, no chose in action was assignable, an inchoate right of dower was not. The rule now is, that every chose in action that survives to the representatives of the owner, is assignable; but, as a dower right dies with the dowress, it remains unassignable, until turned into an actual estate, by being set off. But just as all choses in action, though unassignable, were valuable rights and interests, so is inchoate dower a valuable, existing, substantial right and interest.
    III. But all choses in action, have always been the subjects of releases. Hence, an inchoate right of dower, though it may not be assigned, may be released. 1 Jac. Law Die. 453.
    IY. Every chose in action, right or interest, may be released absolutely or conditionally. ' When a woman joins her husband in an absolute conveyance of his lands, she thereby absolutely relinquishes her right of dower. But when she joins in a mortgage, she only conditionally releases it; and, hence, upon performance of the condition the release becomes void, and she holds her right just as if she had never executed the mortgage. It is not a new right just accrued, it is the old right, the release of which no longer exists.
    Y. It is familiar law, that a mortgage is as effectually extinguished by payment after condition broJcen as before. Any person entitled to redeem, may thus extinguish it at any time before his or her right of redemption is foreclosed, or barred by the statute of limitations, or surrendered. The husband mortgagor may thus extinguish it, for though absolute at law, it is not so in equity. And, for the same reason of justice, the wife’s release of dower, though it becomes absolute at law by the breach of the condition, is not so in equity; and she may redeem at any time before her right of redemption be lost in one of the modes above specified.
    I assume here, what I will demonstrate hereafter, that she has a right to redeem, and assuming this, I put this plain and very common case, by way of illustration: Husband and wife join in a mortgage; the condition becomes broken. In this state of the case, and no foreclosure having taken place, no bar of the statute of limitations having intervened, no surrender of any right of redemption having been made, the wife tenders to the mortgagee full payment of the mortgage debt. Who will say that he can rightfully refuse to take it? that he is not bound to receive it? Certainly no one can say so, consistently with the law. Rut if she have the right to thus make payment after condition broken, it is demonstrated that her release of dower does not become absolute in equity upon the breach of the condition. In other words, there is not one rule for the husband and another for the wife. The law is not guilty of the enormity of saying that the mortgage, as to him, shall, in a court of equity, remain a mortgage after condition broken, but as to her, it shall become, in the same court, an absolute release; that his estate shall not be forfeited by a breach of the condition, but that her right shall be. The rule of equity, “ once a mortgage always a mortgage, until the right of redemption be lost,” applies to every party entitled to redeem, to the wife just as much as to the husband; to the husband having curtesy inchoate, just as much as to the wife, where the mortgage is of her lands; to the judgment lienholder just as much as to the mortgagor. M sic de similibus. Each of these redemptioners is entitled to the benefit of this rule, and one no more entitled to it than another. And it has, again and again, been decided, and is now settled law, without even a dictum to the contrary, that this rule, “once a mortgage always a mortgage, until the right of redemption be lost,” has no exception.
    
    YI. It inevitably follows from the forgoing premises, that if the plaintiff, Mrs. McArthur, ever had a right to redeem, she has it yet, unless she has lost it by the foreclosure of her husband’s right in a suit to which she was not a party. Of that I will speak presently.
    That she had such a right of redemption, is too well settled to admit of controversy — first, by reason; and next, by authority.
    1. As to the reason of the thing. We have seen that the wife’s inchoate right of dower is a valuable interest in the land, that her release of it in a mortgage is conditional only, and that if the mortgage debt be paid, either before or after condition broken, her release becomes void, and she holds her dower right just as if she had never executed the mortgage. Such beiiig the case, what reason could be given for disabling her from performing the condition ? She is no stranger, no mere volunteer. She is a party to the mortgage; she is a conditional releasor; she has a valuable interest in the land to protect, an interest most favored in the law, and the mortgagee loses nothing by taking payment from her. What possible reason then can be given why she should not have a right to redeem? There is none. Indeed, to deny her that right, would be the greatest injustice, as 'might easily be shown by putting cases, and not far-fetched ones-either.
    Defendant’s counsel seem to argue, as if nobody but one-having an estate in the land had a right to redeem. But no> idea could be more erroneous. Any one “ having an interest in, or lien upon, the land,” may redeem. Hence, a mere-judgment creditor may redeem, though he has no estate, bu1r a lien. And so a tenant for years, though he has but a chattel interest. A mere bond creditor in England under certain circumstances, a dowress, a tenant by the curtesy, etc. 1 Powell on Mort. 261a, note b; 261a to 268a, and notes.
    I have already said, under the last head, that the wife or widow’s right to redeem stands upon precisely the same principles of equity as does the husband’s. The equity of each arises from the fact that the mortgage is but a pledge. The-husband pledges the fee, the wife, her inchoate right of dower, each is interested to redeem, and the same reason that makes it equitable to allow the one to redeem, makes it equally so to allow the other. Indeed, if there is any difference, the equity of the wife might well be deemed the stronger, since she needs it more for her protection. Her interest is entirely separate from her husband’s, and he, in no wise, represents it. On the contrary, his interest is antagonistic to it. It is his interest that the land be freed from dower. Hence, she stands in peculiar need of the aid of a court of equity.
    But that she has at least equal rights, has been repeatedly declared. Thus, in Denton v. Nanny, 8 Barb. 620, 623, the court asked, “ are not the equities of the wife as strong as those of the husband?” and they answered the question in the affirmative. To which answer, and the reasons given for it, I respectfully ask particular attention. And, in Mills v. Van Voorhis, 20 N. Y. 412, the court said: “The inchoate rights of the wife are as much entitled to protection, as the vested rights of the widow.”
    But I maintain, that if any thing can be deemed settled as American law, it is, that a wife or widow may redeem. Mr. Scribner, in his work on Dower, page 460, truly says: that, “it is the general, if not the universal American doctrine, that the widow may redeem the husband’s lands from an existing in•cumbrance, and thus entitle herself to dower, as against the •mortgagee.” And he cites, perhaps, fifty cases in support of •this statement, to Avhich I refer, without citing them again Fere. See the cases cited in the notes, as well as tliose mentioned in the text.
    All the questions in this case will be found learnedly discussed in Scribner on Dower, pp. 459-494, to which I beg leave to refer the court.
    In some of the cases, the fact of the wife having an inchoate, or the Avidow a vested right, of doAver in the equity of redemption, is spoken of as a ground for allowing her to ■redeem, though it is easy to perceive, that in a casé like the present it is -not the only one. And it is agreed by defendant’s counsel, if I understand them, that there is no such thing in Ohio as an inchoate right of dower in an equity of redemption, and hence the reason for allowing the wife to redeem does not exist here. The proposition is not supported by Rands and wife v. Kendall, 15 Ohio Rep. 671, cited for that purpose.
    In the other states, generally, if not now universally, a wife’s inchoate right of dower in a mere equity of redemption (the husband never having had a legal estate at any time during the coverture), is contingent upon two things only, to-wit: 1. That she shall do nothing to bar or release it. 2. That she shall survive the husband. In Ohio, it is contingent upon three things, namely: the two above mentioned, and 8. That the husband shall die owning the equity. But this addition of another contingency by which the right to dower, in such a case, may be defeated, does not prove, or tend to prove, that no such right can have an existence; for it is, in no wise, inconsistent with the right.
    The reason before mentioned, for allowing a wife to redeem, to-wit: That she has an inchoate right of dower in an equity of redemption, exists in Ohio, as fully as elsewhere.
    Indeed, it is stronger here than elsewhere, for her very object in redeeming may be to protect herself against a conveyance by the husband of the equity of redemption. Her only mode of saving her dower may be by such a redemption; and as her doing so injures no one, there is a stronger reason here, than in states where the husband can not by his own mere conveyance defeat her right, for allowing her to redeem. Before this right can be denied her, the old maxim that, “ dower is the favorite of the law,” must be reversed.
    But were I -wrong in all this, it would not prove that Mrs. McArthur has no right to redeem. Eor she does not come asking dower in a mere equity of which her husband did not die seized. Her title stands on the impregnable ground, that she is within the very terms of the dower act; that her husband, during the coverture, was seized of a legal estate of inheritance ; that her undeniable inchoate right of dower in that legal estate has never been absolutely released by her, but only conditionally released, or in other words, pledged; that it is universal law that a releasor or pledgor upon condition, has a right to perform the condition; and that of this right she has never been- deprived.
    YII. Was the plaintiff barred of her right to redeem, by the foreclosure to which she was not a party ?
    1. If the foregoing propositions be true, it follows that it was necessary to make her a party in order to forclose her.
    2. But, it is said by defendant’s counsel, that no decree could have been taken against her, and therefore, she was not a necessary party.
    Not so. Although a decree for the money could not have been rendered against her, a decree forclosing her right to redeem could have been taken.
    No decree for the mortgage debt can be taken against subsequent mortgagees, subsequent purchasers of the estate or equity of redemption, judgment lienholders, etc., yet if they be not made parties to the foreclosure suit, they may still redeem. In one sense, they and the wife or widow are not necessary parties, that is, the case may go on to a decree without them. But in another and the material sense in this case, they are necessary parties; because a decree of foreclosure may be rendered against them if made parties, and if not made parties they will not be foreclosed.
    3. But, say defendant’s counsel, the husband represents the wife; they can not, without leave of the court, answer separately; and, therefore, it is unnecessary to make the wife a party.
    Wrong in fact and wrong in inference. For:
    1. The husband never represents the wife unless their interests are perfectly identical. If there is the least antagonism of interest possible, he does not represent her. But the interests of husband and wife, quoad dower, are obviously directly antagonistical. It is his interest to free his estate from the incumbrance of her dower; it is her interest to preserve that incumbrance.
    
      2. That husband and wife can not answer separately, without the 'leave of the court, proves nothing as to the necessity of making her a party. That is the general rule even where the suit against them respects her separate estate. But it is a mere rule of practice, founded on reasons wholly distinct from those which prescribe the necessary parties to the suit. And, wherever, there is the least diversity of interest between husband and wife, the court will grant her leave to answer separately if she desire it>; and she is a necessary party, in order to give her an opportunity to ask for this leave and defend her separate interest.
    3. Defendant’s counsel say that-Mrs. McArthur’s right was to be endowed of the surplus moneys after the satisfaction of the mortgage. I grant that would have been her right had she been made a party to the suit, and foreclosed of her right to redeem. And the very fact that she would have had such a right, shows that she was a necessary party to the suit.
    4. It is said, that Mrs. McArthur was named as a party defendant in the forclosure bill. But it is averred in her petition, and not denied in the answer, and is, therefore, to be taken as true, that no process was ever served upon her, nor was her appearance in any way effected, nor did she appear, nor was she, in any way, made a party to the suit. It surely requires no argument to prove that, merely naming a person as a defendant, without effecting his appearance, does not make him a party to the suit. Service of subpena on the husband, was not, under our chancery act, service on the wife. See Swan's St. of 1831,701; Moore v. Starks, 1 Ohio St. Rep. 372.
    5. Defendant’s counsel cite some cases, to show that a wife is an unnecessary party to a foreclosure bill. I have not examined them, and shall, probably,-content myself with your honor’s examination of them. I suspect, however, that they were made, when, at the time, the English law denying dower where the fee was mortgaged, prevailed. Be this as it may, the weight of authority decidedly is, that if the wife be not made a party’to the foreclosure-bill, she will not be barred of her right to redeem, and her consequent dower. Frische v. 
      Kramer’s Lessee, 16 Ohio. Rep. 125, 139, 140, 141; Denton v. Nanny, 8 Barb. 620; Mills v. Van Voorhies, 20 N. Y. Rep. 412, 418, 420. See also cases cited in the last two of the aboye cases; also Swan’s Code PI. 105; Childs v. Childs, 10 Ohio St. Rep. 339; 11 Hilliard on Mort. 399, 76 d; Scribner on Dower, 482.
    6. Counsel for defendant endeavor to draw a distinction between the cases where the foreclosure was in the husband’s lifetime, and where it took place after his death. But there is no difference in principle or substance, and the court of appeals of New York, well said, that, “the inchoate rights of the wife, are as much entitled to protection as the vested rights of the widow.”
    
      Milton L. Ciarle, in argument for plaintiff,
    cited: sec. 1 of the dower act, S. & C. 516; Kitzmiller v. Van Renselear, 10 Ohio St. Rep. 63-5; Foster v. Dwinel, Amer. Law Reg. vol. 1, New Series, 601, 610; Barbour v. Barbour, 46 Me. 1; 1 Story’s Eq. 583; Kennedy v. Nedrow, 1 Dall. 417; Ward v. McIntosh, 12 Ohio St. Rep. 231; 4 Kent’s Com. 45, 184-5-6; Harrison v. Eldridge, 2 Halst. Rep. 392; Barber v. Parker, 17 Mass. 564; Taylor v. Fowler, 18 Ohio Rep. 567; 1 Scribner on Dower, 482-3-4—5, 528—9; McArthur v. Porter, 1 Ohio Rep. 99; Carter v. Goodwin, 3 Ohio St. Rep. 75; Wheeler v. Morris, 2 Bosw. (Superior Court of New York), 524; Mills v. Van Voorhies, 6 Smith (20 N. Y.), 412; Bell v. The Mayor of New York, 10 Paige, 49, 56; Ib. 67; Denton v. Nanny, 8 Barb. 618; Lewis v. Smith, 5 Smith (21 N. Y.), 502; Hitchcock v. Harrington, 6 Johns. 290; Collins v. Torry, 7 Johns. 278; Fish v. Fish, 1 Conn. 559; Snow v. Stevens, 15 Mass. 279; Gibson v. Crehore, 3 Pick. 475; 5 Pick. 146; Coles v. Coles, 15 Johns. Rep. 319; Titus v. Nielson, 5 Johns. Ch. 452; Haines et al. v. Beach et al. 3 Johns. Ch. 459; Story’s Eq. Pl. sec. 72; Eaton v. Simonds, 14 Pick. 98; 1 Hilliard on Real Property, 398, 428; Swaine v. Perine, 5 Johns. Ch. 482; 2 Vernon’s Rep. 603, 663; Palmer v. Danby, Prec. Ch. 137; Saville v. Saville, 2 Atk. 463; Banks v. Sutton, 2 P. Wms. 716; Elwys v. Thompson, 9 Mod. 396; 15 Viner, 447; Exparte Carter, Ambl. 733; Powell on Mortgages, 392, 708, 709; 1 Hilliard on Mortgages, 390-1; Van Dywne v. Thayer, 14 Wend. 233; 19 Wend. 162.
    
      Hunter $■ Daugherty for defendant, argued :
    It is claimed in argument by the learned counsel of the plaintiff, that by the sale of the lands under the decree of foreclosure, and the application of the proceeds to the payment of the mortgage debt, the mortgage is extinguished, and she remitted to her full right of dower in the fee, as would have been the case if her husband had, in his lifetime, paid the mortgaged debt in any other way, she not having been served with process as a party defendant in the cause.
    The principle asserted by this proposition, is, that the mortgage debt being, in fact, paid, the mortgage' is extinguished, and the plaintiff’s release of her inchoate right of dower, abrogated, irrespective of the mode or means" of payment.
    Whether the plaintiff, by reason of her not having been served with process, is entitled to redeem, is another and a different question, to be noticed afterward.
    Is the plaintiff remitted to her right of dower, by reason of payment of the mortgage debt out of the proceeds of the sale of the mortgaged premises, made under the decree in the foreclosure proceedings ?
    The proposition is so manifestly absurd as to seem to render argument about it unnecessary; yet the principle involved in it has been upheld by courts of justice, and may, therefore, be entitled to more respect than it seems to us to merit.
    In Frische v. Kramer’s Lessee, (16 Ohio Rep. 125,) the game principle was advocated, not in respect to the right of dower in behalf of the widow of the mortgagor, but in behalf of an assignee of the equity of redemption, or purchaser of the mortgaged premises from the mortgagor, who was not joined as a defendant in the foreclosure suit. It was claimed in Ms behalf, that, not having been made a party to the suit, the decree and all proceedings under it, were void as to Mm, and that the mortgage being in fact satisfied, although by the proceeds of the sale under the decree, it no longer subsisted, and that he was entitled to recover the lands in ejectment, from the purchaser under the decree.
    This court, however, held that “the purchaser under the order of sale was vested with the title and interest of the mortgagee, and subrogated to all his rights; and became vested with the interests of all the parties to' the bill.”
    This decision effectually supersedes all further argument in regard to the proposition under consideration in the present case. The mortgagor, the husband of the plaintiff, was á party defendant to the foreclosure proceedings; the condition of the mortgage was broken, and the title of the mortgagee, as against both the mortgagor and his wife, the plaintiff,0 had become absolute at law, and the mortgagor, the husband of the plaintiff and owner of the fee, was, by the decree foreclosed of all right in equity to redeem; and the purchaser under the decree became vested with the legal title, and the same is now held by the defendant, free from all right of redemption by the mortgagor’s heirs at law; and free from the right-of dower of the plaintiff, so far as her joining with her husband as a grantor in the mortgage, has effect, in law, to extinguish it.
    The right of redemption was in the husband alone, to the time of the decree of forclosure — no part of it in the plaintiff. If she had wished to redeem after forfeiture and before foreclosure, she could not have sustained a bill for that purpose, nor would she have been a proper party to a bill to redeem, filed by her husband. No lawyer ever heard of such a case— the fee being in the husband. Before the death of the husband, the wife hss no estate in Ms lands — nothing but an inchoate or imperfect right — a possible future interest, capable, in law, of being surrendered or released in connection with a grant or conveyance by the husband of his title or estate; but it is not per se alienable or mortgageable, either by the act of the wife alone, or' jointly with her husband. If the husband grant or convey his inheritance, in which his wife has an inchoate right of dower, she not uniting with him, her right still adheres to the property; but if she unite with him ir a mortgage, of such inheritance, and the condition be forfeited, and the hushand’s right to redeem be foreclosed in his life time, the effect is identically the same as if the original conveyance had been absolute; it has become so, at law, by the operation of its own terms, and by the legal effect of the foreclosure, the fee, at law, being vested in the mortgagee, or the purchaser, if sold by virtue of a decree of foreclosure. Thus the matter stands at law and in equity, certainly, during the life of the husband, sealed by the foreclosure against all right of redemption by either husband or wife, and as certainly, as to the inheritance, against his heirs, after his death,, and as a necessary legal consequence, the inchoate right of dower never having embraced any part of the inheritance, it follows, that if she can be regarded as vested with any redeemable interest after the death of the husband, it is of something not included in the inheritance.
    But being debarred of all right during the life of her husband, to redeem, on what ground of reason is it possible to maintain that she has a right of redemption after his death ? Can it be said that the released and extinguished inchoate right, is, by his death, resuscitated? If so, on what does it depend, from what arise? This, and only this: that she was not served with process as a party defendant in the foreclosure proceeding.
    To what practical end or purpose, should she have been made a party? If named as a party no decree could be made for her, or against her. If, being a party, she should, propose to redeem in her own right, no such decree could be entered in her favor, for the plain reason that she has no estate or interest to redeem; and for the same reason no decree could be rendered foreclosing her from redeeming. To foreclose a right implies the existence of a right; and if none-exist, none can be foreclosed.
    
      Nor could she demand any compulsory decree against her husband requiring him to redeem.
    In short, the only decree for relief in such cases, is, for foreclosure and sale of the premises (formerly foreclosure alone in certain classes of cases), subject to a provision for redemption by the husband upon equitable terms to be fixed by the court. 1
    It is a mere truism to say, that no one is a proper party to a suit in chancery, against or for whom no decree can be rendered ; and it is equally a truism to say, that the omission to make such a one a party, can neither work any injury to ■•them, nor clothe them with any right.
    Such is plainly the category in which the plaintiff in this •case stands in respect to the foreclosure suit. She admits that she joined in the execution of the mortgage; and it is clear that no decree could have been rendered in the case that could have affected her interest in any possible way. .She had no equity of redemption; could assert no right to ■•redeem; of which she might have been foreclosed, or which :she had the right to demand the decree of the court to be allowed to exercise; and no liability, duty or obligation could lawfully have been imposed upon her .by the decree, not even for costs.
    On what footing, then, can it be pretended that the plaintiff is not divested of her inchoate right of dower by uniting with her husband in the mortgage, because she was not served with process as a defendant in the foreclosure suit?
    It has been truly said, that, “ she is deprived of her dower, not by force of the judicial proceedings, but by force of her •deed;” (Carter v. Walker, 2 Ohio St. Rep. 342). “She would not have been a proper party to the proceeding. Grantors are never necessary parties to a suit seeking to charge their grantees, unless it appear that they have, or may have some remaining interest.” (Id. 343.)
    In view of these self-evident propositions, therefore, we feel warranted in saying, that if any precedent can be adduced, holding that the widow of a mortgagor, who ha8 united with her husband in the mortgage, is entitled to dower, generally, in the mortgaged premises, or to redeem them, or any interest in them, to the end that she may be endowed in them, after a sale of the premises pursuant to a deeree of foreclosure in the lifetime of the husband, in a proceeding against him, upon the ground that she was not made a party to such proceeding, is unsound in principle, and not good law. And we doubt if any such precedent can be adduced. We have not met with any such.
    The nearest approach to any such case, are cases in which the husband’s equity of redemption had been sold (not foreclosed), in his lifetime, either by the direct act of the husband, or under execution or other judicial process — and the purchaser of such equity had paid off, or taken an assignment of the mortgage. Such were the cases of Gibson v. Crehore, 3 Pick. R. 475; 5 Pick. 146; Eaton v. Simonds, 14 Pick. 98; Titus v. Nelson, 5 J. C. R. 452; Swaine v. Perine, 5 J. C. R. 482; Bell v. The Mayor of New York. 10 Paige’s R. 49.
    An examination of the cases relied upon, on behalf of the plaintiff, will show that, in no one of them, has the proposition been maintained, or even the question presented, which arises in this case, namely, that the widow of a mortgagor., who united with him in a mortgage, is entitled to dower in the premises which have been sold by the fee simple title, upon a decree of foreclosure in the lifetime of the husband, she not being a party to the bill to foreclose — nor in any of them has it been held, in any such case, that a wife, so having released her inchoate right of dower, is a necessary party to be joined with her husband in a chancery proceeding to foreclose and sell the mortgaged premises.
    There is, besides, another reason in law, why she is not, in such a case, a necessary party; the object being to effect a sale of the premises in fee, and, by the law of Ohio, the sale being subject to an appraised value of the fee.
    
    In Frische v. Kramer’s Lessee (16 Ohio. Rep. 141), Judge Hitchcock, delivering the opinion of the court, says: “ By our practice, the proceedings in chancery, which we sometimes denominate proceedings to foreclose an equity of redemption, are, in fact, in the nature of proceedings in rem. The object is to procure by a decree of the court, the sale of the mortgaged premises, and for no other purpose. In the case of Ratterman v. Germain and others, such was the object of the bill. And upon this bill the court decreed that the mortgaged premises should be sold. They were sold pursuant to the decree, by the proper officer of the court.- Under this sale, unless the proceedings were utterly void, the purchaser took these identical mortgaged premises, and could transmit them to others.”
    That, was an authoritative.settlement of the law applicable to like cases in Ohio, and became a rule of property, and is not lightly to be turned aside or trampled under foot. We ask the court to ponder, weigh, and well consider its bearing and effect. It is a proceeding in rem — to procure a sale of the mortgaged premises, and for no other purpose; they were sold pursuant to the decree — and, unless the proceedings were utterly void, the purchaser took the premises, and could transmit them to others. How transmit them ? — incumbered? or free from incumbrance ? What was the res ? — the mortgaged premises — the lands, of course, as required by law to be sold, namely, subject to an appraisement of the unincumbered fee simple title. If not that, what did the court intend in saying that the purchaser took, and could transmit the premises ? Did they mean this, sub modo, only, in reference to subsequent mortgages? That would hardly justify the assimilation of the proceeding to that of a proceeding in rem. The meaning was, rather, that expressed; for a somewhat different purpose, in the last paragraph of the opinion of the pourt, in Scott v. Hickox et al. (7 Ohio. St. Rep. 95), “It s.eems, however, that the purchaser at-the judicial sale took something more than the title of the mortgagor; that he became invested, by operation of law, with the title of the mortgagee as well as that of the mortgagor.”
    If, however, the effect, in regard to subsequent mortgagees, not made parties to a foreclosure proceeding, having for its objeet & sale of the premises in fee, would be to leave them vested with the right to redeem from the purchaser at the sale, would it also be the effect, as to the inchoate right of dower of the wife, she having joined in the mortgage — the proceeding to foreclose and sell being instituted and carried into effect in the life time of the husband, and when her right still remains inchoate; and when, as a legal consequence, she has no right in law or equity to redeem, but her husband only ? Does she stand in the light of a subsequent mortgagee or incumbrancer? We think not. We admit, to the fullest extent, the rule - of equity, in proceedings o.f foreclosure, strictly, which requires subsequent mortgagees to be made parties. They are, virtually, assignees of the equity of redemption, and unless made parties, and a day given them to redeem, they are not foreclosed of their right to do so, provided they became such assignees or mortgagees before forfeiture of the condition of the first mortgage. Till then, the mortgagor is vested with the legal title; and afterward, so long as he is in possession, as to all others, except only the mortgagee. Any assignment, or new mortgage, after forfeiture, is not, so far as regards the mortgagee, a conveyance or mortgage ‘of the legal title, but only of an equitable interest — the equity of redemption — not a thing, necessarily, in law, to be conferred or conveyed by deed, required to be recorded, as a means of notice to others interested, but which may as well be in any other form, and equally valid between the parties. This, we think, is worthy of consideration; but its further investigation draws us too far away from the actual case. We must pause in dealing with generalities, and not too hastily draw conclusions from them to govern particular cases. When we admit that a junior mortgagee is a necessary party to a bill for a strict forclosure, let us consider whether that principle extends to cases of proceedings in the nature of proceedings in rem, resulting in a sale, by the fee simple title, and subject to be appraised _as such, under the order and judgment of a court of competent jurisdiction. We are to take notice, in such cases, in establishing a rule, not only of the rights and interests of other lienholders, but also of those of purchasers, investing their money under the guaranty of judicial authority and sanction. Is it wise, in such cases, after years of possession, attended with expenditures for improvements, to open up the proceedings and let in some dormant interest to redeem the mortgage, holding the purchaser to account for rents and profits to be applied toward the redemption? Is such a rule founded in wisdom, or does it tend to promote justice ? Would it not be the wiser rule, and tend far more to establish justice, to require such lienholders to look to their rights upon the distribution of the fund, at their peril? Do we not perceive an intention on the part of the court, in Frische v. Kramer’s lessee, to adopt the latter principle? If it were a case of first impression, under our system (in which, formerly, either a sale or strict foreclosure, was admissible, according to circumstances, but now a sale, in all cases), which would be the wiser rule, to protect the purchaser, leaving the incumbrancers acquiring their interest after condition broken, to take care of their rights, in respect to the proceeds of the sale; or to protect such incumbrancers, at the sacrifice of the interests of the purchaser ?
    These questions have a remote bearing upon some of the views that may be taken in this case, and, especially, as the learned counsel of the plaintiff seek to place the case, so far as regards the necessity for her to have been served with process in the proceedings, for the sale of the premises, upon the same footing with subsequent mortgagees. Rut the wife of a mortgagor who unites with her husband in the mortgage, which mortgage becomes forfeited in the life time of the husband, is not an incumbrancer, within the meaning of any rule upon the subject, during the life of the husband. Until his death, her interest is a mere possibility; and that, she releases for all the purposes of the mortgage by uniting in it. She is not the mortgagor; her husband, alone, is such. She unites with him, simply and expressly, for the purpose of releasing her inchoate right, and freeing the premises from the same, in the event of a breach of the condition. In no sense can it be said that she is vested with a right in equity to redeem, in the event of a forfeiture of the condition, like that of an assignee, or purchaser from the husband before or after condition broken, of his equity of redemption. Such assignee or purchaser, before condition broken, by deed duly recorded becomes vested with the husband’s equity of redémption, although the husband remains liable to the mortgagee for the payment of the mortgage debt; and both are necessary parties to a bill for forclosure and sale.
    In Childs v. Childs and others (10 Ohio St. Rep. 339), the mortgagor, before condition broken, sold and conveyed the premises, by deed duly recorded, to the plaintiff. After breach, a bill to foreclose was prosecuted by the mortgagee against the mortgagor, alone, his assignee- not being made a party defendant; a decree of foreclosure and sale of the premises, was made in the case, and a sale made and confirmed, and deed made to the purchaser by the sheriff, under whom the defendants claimed and derived title, and held the possession. The plaintiff, in the case (the purchaser from the mortgagor by deed before breach), prosecuted his suit against the defendant, claiming, under the purchaser, under the decree, praying to be let in to redeem. It was held that the plaintiff was entitled to redeem, not having been made a party to the foreclosure proceedings, subject to an equitable account for improvements, taxes paid, and debt, equal to the amount of the purchase money paid for the property at the foreclosure sale, with interest thereon, to be stated in favor of the defendant; subject to a like account to be stated against him for rents and profits enjoyed. It was also held, that the mortgage was not, by virtue of the foreclosure sale, extinguished, but passed by virtue thereof to the purchaser, and those claiming under him, as by assignment, he, and they, being subrogated in equity, to the rights of the mortgagee, to the extent of the purchase money — the case of Frische v. Kramer, above cited (16 Ohio Rep. 125), being affirmed in this regard. The points thus held, in Childs v. Childs, stand upon clear grounds of equity, in no wise analagous to the case of the present plaintiff. Tbe plaintiff in that ease became tbe purchaser, by deed duly recorded, from the mortgagor before breach, and when the mortgagor, on well established principles, was seized of the legal title in fee. He, the purchaser, thereby became vested with the legal title in fee, subject to the mortgage ; and when the breach happened, the» equity of redemption remained in Mm alone. Therefore he, and he alone, was the necessary party to be foreclosed, and no decree against the mortgagor, his grantor, in a case to which he was not a party, could affect him, or foreclose his equity of redemption.
    But our case is different, to to coelo. In it, the husband of the plaintiff, the mortgagor, who had never conveyed or parted with his interest, in whom alone was vested the equity of redemption, was a party defendant to the foreclosure proceeding ; and by the decree, foreclosed of his equity — and both his interest and-estate, and that of the mortgagee, vested in the purchaser, under the decree. He took free from all right in equity on the part of the mortgagor, to redeem.
    But further: The plaintiff in this case, was, in fact, a defendant to the foreclosure bill of complaint, regularly, and in proper form, named as such, with her husband, the mortgagor, he being duly served with process issued upon the bill.
    The law seems to be clearly and well settled, that in suits against husband and wife, service of process upon the husband alone is sufficient, except in eases concerning the separate property of the wife. Indeed, the rule is so clear and full upon the subject, that the husband will not be permitted to file a separate answer for himself, without answering also for his wife, unless for special reasons to be shown and leave granted by the court. See Ferguson v. Smith and others, 2 J. C. R. 139; Leavitt v. Cruger and wife, 1 Paige R. 421; Gee v. Cottle, 3 Mylne & Craig’s Ch. R. 180; Barry v. Cane, 3 Mad. 472; Whittingham v. Garey, 1 Sim. & Stu. 162; Bushnell v. Bushnell, Id. 164; Perine v. Swaine, G. C. R. 24; 1 Hoff. Prac. 229; 1 Daniel’s Ch. Pr. 500.
    Having thus taken a general review of the subject, in the light discussed by the counsel of plaintiff, and by way of reply to their arguments, we now, in conclusion, beg leave, again, to ask the attention of the court, to the leading, and, as we think, controlling proposition upon the merits of the case— the effect of the mortgage, and the forfeiture of its condition, upon the nature of the estate and interest in the premises of the husband; and the further effect upon his remaining interest, and of the right of dower therein, of the plaintiff, resulting from the foreclosure proceedings and sale.
    Without repeating matter of argument, our propositions are:
    1. That the effect of the mortgage, executed in conformity with the statute, by both husband and wife, and of the forfeiture of the condition, was, in law, to vest the legal title in the mortgagee, leaving in the husband, an equity of redemption, merely.
    2. In that state of the case, the wife, under the statute, became vested with the inchoate right of dower in the husband’s equity of redemption, her previous inchoate right of dower in the fee being vested with the husband’s previous legal title in fee, in the mortgagee.
    3. By the foreclosure and sale of-the mortgaged premises, •under the decree for that purpose, the husband’s equity of redemption, together with the legal title, so vested as aforesaid in the mortgagee, became vested in the purchaser, in the life time of the husband, whereby the inchoate right of dower of the plaintiff in the husband’s equity of redemption became extinct, by force of the statute.
    P. G. Smith, in argument for defendant,
    cited, 1 S. & C. 516; Fosdick v. Risk, 15 Ohio Rep. 84; Freeby v. Tupper, Ib. 467; Bancombe v. Love et ux, Barnes, 406, 412; 3 Chit. Gen. Pr. 263; St. Clair v. Morris, 9 Ohio Rep. 15-17; Smith v. Handy, 16 Ohio Rep. 191; Rands and wife v. Kendall, 15 Ohio Rep. 676, 677; Popkin v. Bumstead, 8 Mass. 491; Carter v. Walker, 2 Ohio St. Rep. 339, 342; Coats v. Cheever, 1 Cowen, 479; Stow v. Tifft, 15 Johns. 460, 479; Hawley v. Bradford, 9 Paige, 200; Moore v. Mayor of New York, 4 Seld. 110; Weaver v. Gregg, 6 Ohio St. Rep. 547; Frische v. Kramer's Lessee, 16 Ohio Rep. 125; Kershaw v. Thompson, 4 Johns. Ch. 613; Simers v. Saltuss, 3 Denio. 216; Lansing v. Goelet, 9 Cowen, 401; Turner v. Johnson, 10 Ohio Rep. 203; Corder v. Morgan, 18 Ves. 345, note 2; 4 Kent, 139; Brisbane v. Staughton, 17 Ohio Rep. 482, 488; Wilson v. Troup, 7 Johns. Ch. 27; Rell v. Ulmer, 18 N. Y. Rep. 146; Perry v. Barker, 13 Ves. 198; Powell on Mortgages, 343; 2 Story’s Eq. sec. 1023; Williard’s Eq. 447; Park on Dower, 137, 209, 350; Smiley et ux. v. Wright, 2 Ohio Rep. 506.
   White, J.

Two questions, arising in this case, have been elaborately argued by the learned counsel of the respective parties. 1. Whether the plaintiff, as widow of Allen C. McArthur, deceased, had the right to redeem, under the mortgage executed by herself and her husband, to the bank of Cir cleville ? and 2. If she would otherwise have had such right, whether process against, and service thereof, upon her husband, in the chancery suit; had the effect of extinguishing the right by foreclosure ?

We are of the opinion, that the first question must be answered in the affirmative, and the second, in the negative.

It is not deemed necessary, in this opinion, to enter into an elaborate examination of the numerous authorities cited, and relied on by counsel. They have been, with great research, collated and classified by Mr. Scribner, in his recent learned treatise on the law of dower, which, it is presumed, will be as accessible to the profession of this state, as our own reports.

In the consideration of the first, and main question stated, it is necessary to bear in mind the broad and well-recognized distinction between legal rights and remedies, and such as are merely equitable, and of which, formerly, courts of chancery alone took cognizance. The denial of a party’s right, in a court of law, was in no way decisive against the existence of equity in his favor. Indeed, if his right was recognized in a court of law, he had generally no status in a court of equity. The jurisdictions were distinct, and resort could usually be had to the last-named court, only where the former was not competent to recognize the right sought to be enforced, and administer adequate relief.

The right to dower is given by statute, and is a legal right. The alleged right of the widow to redeem an outstanding legal impediment to the assertion of her right of dower, is quite distinct from the legal right of dower. If such right of redemption exists, it is of equitable origin and exclusively of equitable cognizance, and is the remedy which equity affords for restoring the legal right which has been forfeited by breach of the condition in the mortgage.

It is quite manifest, therefore, that decisions against the widow’s right, in cases in which dower was directly sought to be recovered by her against an outstanding legal mortgage, without a previous redemption, fall short of reaching the question, here raised, as to her right in equity to redeem.

Whether such right in fact exists in favor of the plaintiff, in the present case, must be determined by the application of the recognized principles of equity to the subject matter in controversy. And, in the first place, it should be noted that this is neither the case of a mortgage executed by the husband before the marriage, nor of one given by him to his vendor to secure the purchase money, nor of an incumbrance existing on the land at the time his title was acquired. In these cases the dower rights of the wife would be subordinate to the paramount title of the mortgagee; and whether foreclosure against the husband alone, or the release by him of his equity of redemption to the holder of the mortgage, would cut off or extinguish the equity of redemption of the widow is a different question from that presented by the case before us.

In Rands and wife v. Kendall (15 Ohio Rep. 671), the controversy was in regard to a mortgage given by the husband, and in default, before the marriage, and where the husband had released, in his life time, the equity of redemption to the holder of the mortgage.

Rut here the defendant does not set up a title paramount. He elaims under the plaintiff. Her husband during their coverture was seized of an estate of inheritance and she became invested with an inchoate right of dower which, in the absence of the mortgage, would have become consummate on the death of her husband; and the defendant relies solely on her mortgage deed, and the judicial proceedings had thereon, as a bar to her right of dower which would otherwise have been perfect. What then, in the light of a court of equity, is the operation and effect of this mortgage, as against the plaintiff? The nature of the instrument shows it to be a mere security, independent of the express stipulation to that effect contained in the one in question. After setting out the debt to be secured, the condition proceeds thus: Now, therefore, in ease said bill of exchange should be promptly paid at maturity, then this conveyance to be void, otherwise to be and remain in full force and virtue as a mortgage to secure the payment of ■said sum of money,” etc.

There is nothing showing that the release of the wife was designed to be absolute, while the conveyance of the husband was conditional. The same language is used throughout the instrument with regard to both. And upon no principle of construction can we give to it a different operation against the plaintiff from what it should have against her husband. If it is to have a different effect against her, from what it has against him, this must result, alone, from the law as applied to their respective interests. The instrument is, in fact, conditional as to both — the conveyance of his estate by the husband and the release of her dower by the wife — and, before condition broken, either might have satisfied the mortgage by payment of the debt, and upon the estate becoming absolute in the mortgagee, the equity of redemption, or right, in equity, of being relieved against the forfeiture, upon performance of the condition, arose. Dower is highly favored in equity, and we do not perceive the principle upon which a widow is to be denied the right to relief from its forfeiture, upon the performance of the condition of her mortgage, and yet the right be conceded to the husband and all claiming. under him. The principle of equity is not designed exclusively for, nor is it limited in its application to, those holding and pledging estates, but it applies to all penalties and forfeitures designed merely as a security. Although the right of a wife to dower is contingent upon her surviving her husband, nevertheless it is a right or interest in the land, created by the law for her benefit, and vested in her. Kent says: “Dower is a title inchoate, and not consummate until the death of the husband; but it is an interest which attaches on the land as soon as there is a concurrence of marriage and seizin.” 4 Kent’s Com., side p. 50. It is true she can not assign to a stranger. Her right attaches to the land, and no one can claim it discharged of the right of the wife except through her. As she may make an absolute release, we know of no' principle of law that forbids her doing so conditionally, nor do w-e see, as already stated, why she may not claim the benefit of the ordinary principles of equity in the event of a breach of the condition. The statute to provide for the proof and acknowledgment of deeds, etc., seems to contemplate the conditional release by way of mortgage of the wife’s right of dower5 as well as its release by absolute deed. Curwen’s Stats.,, vol. 8, p. 2449, sec. 2; S. & C. Stats., vol. 1, p. 461, sec. 2.

n. If the plaintiff was possessed of the equity, under the mortgage, to which we recognize her as entitled, her right, upon general principles, would not be cut off or foreclosed by a suit to which she was not a party. The general rule, in courts of equity, as to parties, is, that all persons materially interested in the subject matter, ought to be made parties to the suit either as plaintiffs or defendants, so that there may be a complete decree which shall bind them all. Story’s Eq. Plead., sec. 76 a. And it is said, however minute the interest which a person may have, still he must be a party. Spencer’s Equitable Jurisdiction of the Court of Chancery, vol. 2, side p. 703. Courts of equity, says Judge Story, adopt two leading principles for determining'the proper parties to a suit. One of them is a principle, admitted in all courts upon questions affecting the suitor’s person and liberty, as well as his property, namely, that the rights of no man shall be finally decided in a court of justice, unless he himself is present, or, at least, unless he has had a full opportunity to appear and vindicate his rights. The other is, that when a decision is made upon any particular subject matter, the rights of all persons, whose interests are immediately connected with that decision, and affected by it, shall be provided for, as far as they reasonably may be. Story’s Eq. Plead., sec. 72. And in discussing the application of these principles to the dower rights of married women, in deciding Denton v. Nanny (8 Barb. S. C. R. 624), Brown, J., uses the following language :r “ Now, it is impossible to say that the interests of a married woman, who unites with her husband in a mortgage to secure his debt, and who, if she survives him, will be entitled to dower in the estate, after the payment of the debt, is not connected with, or affected by proceedings which aim to deprive her of that right. Nor is it possible to say that such proceedings, when consummated, will not affect h,er rights in the very sense spoken of by the learned commentator. She is, therefore, a necessary party, to the end that the court may provide for and protect those rights, as far as reasonably may be.” And in Mills v. Van Voorhies, decided by the court of appeals of New York (20 N. Y. Rep. 415), it is said, if the wife has any interest, either legal or equitable, complete or inchoate, in the mortgaged premises, then, upon the plainest and most familiar principles, that interest can not be affected, unless by virtue of some statute, by a suit in equity, to which she is not a party. • This is not only well settled by authority, but results from the simplest and most obvious principles of justice. The inchoate rights of the wife are as much entitled to protection, as the vested rights of the widow,” p. 420.

III. It is further insisted, on behalf of the defendant, that process against, and service thereof, upon the husband alone, in the foreclosure suit, effected the appearance of the plaintiff, or authorized him to represent her, and that, consequently, she is bound by the decree. The effect of this would be to enable the husband, where the wife had united in a mortgage upon a valuable estate, to secure a small sum of money, at his discretion and without her knowledge, to defeat her dower in the entire estate, and thus, by means of judicial proceedings, to obtain the control, in a great measure, of rights which the statute has carefully sought to guard from his interference. But the interests of husband and wife, quoad her dower, are separate, and, indeed, antagonistic, and, in reference to it, he can in no just sense be regarded, under our law, as her representative.

It would be futile to recognize in her a separate equity, adverse in its nature to the interests of her husband, and for the protection or foreclosure of which she is held to be a necessary party, and yet deny the necessity of the only means for securing to her a day in court.

The demurrer to the answer will be sustained.

Brinicerhofe, C.J., and Scott and Day, JJ., concurred. Welch, J., dissented.  