
    Mary Bolton versus Jonathan Ballard.
    One possessed of an equity of redemption conveyed the premises in fee, the grantee agreeing to pay to the mortgagee the amount due on the mortgage, and the balance to the grantor; which was done accordingly. The wife of the grantor was holden entitled to dower in the premises.
    This action, in which the said Mary Bolton demands her dower, as the widow of her late husband, Savage Bolton, was submitted to the determination of the Court, upon the following facts, stated by the parties.
    On the 21st of July, 1778, Edward Bolton, being seized in fee of the premises, mortgaged the same to William Howard in fee, as collateral security for the sum of £ 173 15s. 7d. and interest, for which sum he gave a bond of the same date. On the 11th of March, 1779, £ 52 10s. 3\d. were paid on the bond. The said Edward died without issue and intestate in June, 1782, leaving George Bolton, his father, who, on the 18th of the same June, no administration ever having been taken on Edward’s estate, conveyed the same to the said Savage Bolton, who thereupon entered and occupied the same until the 19th of December, 1796, having, on the 16th of February, 1785, paid £28 16s. 11 \d., on the said bond.
    On the said 19th of December, 1796, the said Savage, for *the consideration of $ 1000, conveyed the premises to the tenant, Ballard, in fee, he agreeing to pay to Howard the balance due on the bond, and the remainder of the consideration to the said Savage, both of which were accordingly done, and the said bond was thereupon discharged ; Ballard immediately entering and taking possession, which possession continued to the date of the demandant’s writ in this case. On the 20th of December, 1802, the said Howard, by deed dated the 19th of December, 1796, and written on the back of the mortgage, released to Ballard all his right and interest in the premises, for the consideration of £ 173 15s. 3d.
    
    The said Mary is the widow of the said Savage Bolton, and regularly demanded her dower, as alleged in her writ; and if, upon these facts, she should be entitled thereto, in the opinion of the Court, the tenant was to be defaulted, and judgment to be rendered for her recovery of dower in the premises, as the same were in December, 1796 ; and her damages, as they should be ascertained by commissioners ; otherwise she was to become nonsuit, and the tenant have judgment for his costs.
    
      Leach, for the demandant,
    argued, that the premises were, in fact, redeemed by the demandant’s husband, and, that being the case, the demandant’s right to her dower was complete.
    
      Williams, for the tenant,
    contended, that Savage Bolton's seizin having been for an instant only, the demandant was not entitled, and for this he cited the case of Holbrook vs. Finney. 
       The deed of Hoioard to the tenant is rather to be considered as an assignment of the mortgage to Ballard than as a discharge of the debt; and then, by the decision in Popkin vs. Bumstead, 
       no estate accrued to Savage Bolton whereof the demandant can claim dower.
    
      
       4 Mass. Rep 566.
    
    
      
       8 Mass. Rep. 49].
    
   Parker, C. J.,

delivered the opinion of the Court. The question is, whether Savage Bolton, the husband of the demandant, was seized, during the coverture, of the land whereof dower is demanded. The seizin, on which the * demandant relies, is derived from a conveyance of the premises to her husband from George Bolton, his father ; whose title was derived from Edward Bolton, his son, who was originally seized,.and died without issue. This Edward Bolton, in his lifetime, had conveyed the land in mortgage to William Howard ; so that he died seized of an equity of redemption only ; which was all that could be inherited by his •ather, and, of course, was all which could pass by the deed of the latter to Savage Bolton, the mortgage subsisting when that conveyance took place.

But for the circumstances which occurred at the time of the conveyance from Savage Bolton to Ballard, the tenant, this state of facts would present the general question, whether a widow can have dower of an equity only ; a question which has not received a direct iudicial decision with us.

There are strong reasons in favor of dower under such circumstances ; and by the common law, which in this regard is founded in public policy as well as upon a due regard to the situation of widows] dower is a favored estate.

Although, between mortgagor and mortgagee, the latter is considered as having the whole estate, defeasible only by a performance of the condition, so that no right can be set up against him by the mortgagor, or any person claiming under him ; yet, as to all other persons, the mortgagor remains the lawful proprietor, and may maintain his right and possession, by any action proper for such purpose, in as ample manner as if he had never conveyed ; until the mortgage is foreclosed, or actual possession taken by the mortgagee. There seems to be no reason, then, why the wife should not be endowed, as long as her claim will not interfere with the rights of the mortgagee. For the husband, was seized in fact, after the execution of the mortgage, against all but him to whom he had thus conveyed ; and, if it should be for the interest of the wife, as in some cases it may be, to redeem the estate, there can be no good reason why she -should not enjoy an estate, which, but for * an incumbrance which she has removed, would always have been subject to her claim.

This right may be enforced in England by the intervention of the Court of Chancery. And there seems to be no reason why the wife here should not be placed in a situation which may enable her to redeem, or to hold the estate, if it should otherwise be redeemed ; as it may be by the mortgagee’s pursuing his remedy for his debt against the personal estate of the husband after his decease. It is enough, that the law- will not permit the wife to affect the contract of the husband, made with the mortgagee before the marriage. No other person has any lawful interest in excluding her from the customary right of the wife in the estate of her husband.

But, upon the supposition, that a wife is not dowable of an equity, there is yet ground in this case for the support of the demandant’s claim. It cannot be denied, that, if Savage Bolton had paid off the mortgage the day before he conveyed to Ballard, her claim would be maintained ; for, in that case, the incumbrance being removed, he would have been restored to an indefeasible estate in fee, and his seizin would have been perfect. Now, by the facts agreed, it appears, that part of the bargain with Ballard was, that he should pay off the mortgage ; and a sufficient amount of the purchase-money was appropriated to that object. The money was in fact paid, and the bond discharged, on the very day the conveyance was made to Ballard; so that Bolton might, according to the terms of his deed, have conveyed an unincumbered estate to him. It is not stated, whether the payment or the delivery of the deed had precedence in point of time. But, to execute the real intention of the parties, it must be supposed that the incumbrance was first removed. Then Savage Bolton was seized, so as to vest a right of dower in his wife ; and although, in one view, this may be considered a seizin for an instant, yet it is to be taken in connexion with the former seizin, which, although affected by the rights of the #mortgagee, was always in force against every other person. And when those rights ceased to exist, the estate was as if it had never been incumbered.

This case differs from that of Popkin vs. Bumstead, which has been cited- and relied on by the counsel for the tenant. In that case, the widow had released her dower by deed, and the husband had done nothing towards redeeming the mortgage. In the case at bar, the demandant has never released ; and the transactions between the husband and the mortgagee are viewed as a redemption by the husband, and a revesting of his seizin, in order that he might convey.

There is also a difference between the present case and that of Holbrook vs. Finney. The ground of the decision in that case was, that the husband was never seized at all ; having taken a deed and given back a mortgage at the same moment. Here, the husband was actually seized of the land during the coverture, and could maintain that seizin, by action or entry, against everybody but the mortgagee; and the incumbrance was actually removed by payment of the money virtually by the mortgagor, before he conveyed to the tenant; for so the whole transaction must be viewed. Upon the whole, it is our opinion, that the demandant is entitled to judgment.

Tenant defaulted.  