
    Frances H. St. Clair v. William R. Morris.
    Where the wife joins her husband in a mortgage containing a renunciation of dower, a sale of the land by the administrator of the husband for the payment of his debts extinguishes the right of dower, and transfers an unincumbered title to the purchaser.
    Bill in Chancery, claiming dower in lot 101 in Bonham’s subdivision of Cincinnati, part of out lot 34, of which the late Arthur •St. Clair, the plaintiff’s husband was seized in fee during coverture. Reserved in Hamilton county. The answer alleges, that the plaintiff, in *March, 1820, joined-with her husband in mortgaging the whole of out lot 34, to the Cincinnati College, to secure the payment •of four thousand dollars, in ten years, with annual interest, which was afterwards assigned to the Bank of the United States. That in February, 1822, St. Clair's administrator petitioned the Court of Common Pleas for leave to sell all his intestate’s real estate in Hamil-ton County, including out lot 34, to pay debts. The court ordered an appraisement of the land, and the assignment of dower to the plaintiff. Bower was assigned in all but out lot 34, as to which the appraisers reported the dower had passed in the mortgage to the College. A ■sale was ordered, and the out lot was sold for nine hundred dollars free of dower. These proceedings were approved by the Court. The .mortgage is uncaneeled. The facts set up in the answer were proven in the case.
    J. C. Wright, T. Walker, and H. Hall, for plaintiff,
    contended -that dower never was assigned in 34: the commissioners were mistaken in supposing a release of dower by a femme covert in a mortgage, was th'e same as such release in an absolute deed. Had Mrs. •St. Clair been a party to the proceedings and objected, there is little -doubt the assignment of dower in this respect would have been corrected. The confirmation of the proceedings by the, court only ■operated upon the dower actually assigned. The right of dower is ■highly favored by equity. In M’Farland v. Febiger, 7 Ohio 194, this ■ court went to the very verge of injustice in order to sustain it. The widow’s tabwlum, in infragio is to be saved if possible. Had the mortgage been paid off without legal proceedings, there can be no doubt the Rower would have remained. The equity of redemption can only be •extinguished by foreclosure, where the widow is a party. In these proceedings she was no party, had no day in court, and can not be concluded. Her claim has precedence over the debts of her husband.. When a mortgage debt is paid, no matter how, the mortgage is extinguished. The effect of the administrator’s sale, and the payment of' the mortgage debt, extinguished the mortgage, and restored the right of dower.
    W. R. Morris m person,
    contended that these proceedings barred, the dower, certainly to the extent of the incumbrance, although either the widow or heir had a right to redeem. If the widow redeemed she-might claim dower of the whole, and hold the mortgage lien on the remainder of the estate. 5 Johns. 452, 482, 497 ; *1 Johns. Ch. 45 ; 4 Kent. C, 45, 46. The sale by the administrator free of dower for less than the mortgage debt, left nothing for the plaintiff to be endowed of. The sale by the administrator is the same in effect upon the widow’s interest, as if the premises had. been sold under a decree-in Chancery to pay the debt, and passed the whole estate. A widow is not endowed in this state of a mere equity of redemption. 29 O L. 249; 1 Ch. St 472 ; 4 Kent. C. 40.
   By the Court,

G-rimke , J.

The position taken by the counsel for the plaintiff is, that when the mortgage money is paid, no matter how, the mortgage is extinguished, for the debt is the principal and the mortgage only the incident; that the effect of .the sale by the administrator, was to extinguish the mortgage, and by so doing to revive-the right of dower. But this position can hardly be true to the extent to which it is attempted to carry it; for if a bill had been filed to-foreclose this mortgage, it is very certain that the purchaser under the decree, would have taken a title discharged of the encumbrance of dower. The debt would have been paid, and yet the right of dower-would not have been revived, but would have been extinguished together with the debt. The language, the debt is the principal and the land only the incident, which was first attributed to Lord Mansfield in 2 Burr. 978, is calculated to mislead, for it never was true in the-universality with which it is thus stated. A mortgage in fee, as this is, is in reality a fee simple conditional, which is as large and ample an estate, as a fee simple absolute, though it 'may not be so durable, Co. Lit. 18 a., and a transfer of such an estate can not be effected by the mere assignment of the debt. All the eases, when strictly examined, are reconcilable with this view. If the mortgagee’s estate in-the land is the same thing as the money due upon it, then the money due upon the land is the mortgagee’s estate in it; and consequently' there would he no difference between the mortgage of land for a term only, and a mortgage of it in fee. The land is the incident in one sense, because it is uncertain whether it will be necessary to resort to it as a fund for the discharge of the debt. If it is, then it ceases any longer to be the incident. By the same process by which the debt is discharged, the right to the land is also transferred. Mrs. St. Clair, by joining with her husband in the deed of mortgage, barred herself of dower in express terms, so far as the mortgagee and his assigns, and ■all persons claiming under them, are concerned. The only difference between a renunciation of dower in a deed in fee simple, and á deed of mortgage is, that in the former case, the right ^of dower is ipsa facto extinguished, and in the'latter it is dependent upon some future event, whether it shall be so or not. But that it may be, is most certain ; otherwise there would be no meaning or utility in a relinquishment of dower. lie who takes a conveyance in fee, in which is contained a relinquishment of dower, is a purchaser of the right of dower ; and he who takes a mortgage to secure a debt, is also a purchaser of the right of dower, if it shall be necessary to the satisfaction of the debt; if it were otherwise, the mortgagee and the purchaser, under a judicial sale, would be iu the same predicament as if the deed had been executed by the husband alone.

The act under which this sale was made, 2 Ch. St. 929, like the one now in forcé, authorizes the administrator, where the personal property is insufficient to pay the debts, to sell the land for that purpose. But «ven admitting that the sale of the entire interest in the land was irregular, yet I do not see how it can be now cured. The proceedings «f a court of probate are strictly in rem and not in personam. If it has jurisdiction, its acts are binding as against all the world. But there was no irregularity in this ease. The proceeding was justified by the law, and was indispensable to carry out the provision regarding the estate of intestates. The ,35 th section of the act directs the administrator to make a deed for the land, which shall vest in the purchaser as complete a title as if the deed had been made by the intestate in his lifetime. And admitting that this will have reference in this instance to some period in the lifetime of Arthur St. Clair, after he had executed the mortgage, then the deed would, at any rate, transfer the whole equity of redemption, freed from the encumbrance of dower. This is on the supposition that the administrator had no right to sell any thing but the equity of redemption, and yet in that case the effect of the sale would he to extinguish the right of dower. But the power •of the administrator was broader than this. A creditor, other than the mortgagee, can only sell the equity of redemption, because, as to him, it is the only interest in the land which the mortgagor has. But the mortgagee may, for the satisfaction of the mortgage debt, cause the entire interest in the land to be sold. The proceeding by foreclosure, which now exists, and that by scire facies, which formerly existed, shows this. Now, an administrator, acting on behalf of .creditors by mortgages, may do the same. As the agent of the intestate’s estate, and of all the creditors also, his power necessarily reached to the equity of redemption which belonged to the intestate, and to the mortgage estate which belongs to the mortgage creditor. In other words, the power of the Probate Court to direct 4a sale of the land was concurrent with the power of a Court of Equity to decree a foreclosure and sale. Yery great inconvenience would be the consequence if this were not the case. The administrator is directed to settle up the estate, the personal property may be insufficient to pay the debts, the only real property which an intestate may have left, may have been encumbered by a mortgage, there may be a residuum after the payment of that debt, which may be wanting to pay other creditors, and the only just and regular mode of proceeding would be to sell the land and to distribute the proceeds among the creditors according to the priority of their claims. In the present instance, the proceeds were not near sufficient to discharge the mortgage debt. The petitioner, therefore, has no equity, and the bill must be dismissed.  