
    Lucius P. Culver et al., Executors of James Harper, v. Lucinda Harper et al.
    The widow of a purchase-money mortgagor, mortgage given before marriage, and property sold by executors to pay the mortgage debt, is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage.
    Error reserved in the District Court of Morgan county.
    On December 20, 1869, the plaintiffs, as executors of James Harper, deceased, filed a petition in the. Probate-Court of Morgan county, to sell lands of decedent to pay debts of the estate. Daniel S. Wadsworth, a mortgagee of the premises, was made a party. Lucinda Harper, the widow of the decedent, who declined to take under his will, being a party, answered, claiming dower in the entire mortgaged premises, and asked that her dower he assigned to her in money.
    The land was sold, and the Probate Court gave the widow dower only in the surplus of the avails of the sale of the mortgaged premises after payment of the mortgage, amounting to $637.35, The widow appealed to the Court of Common Pleas, where she was endowed of the full value of one-third of the amount for which the land sold, amounting to $1,328, there being enough left to fully pay the mortgage debt.
    The plaintiffs thereupon filed their petition in error in the District Court, where the case was reserved for decision by the Supreme Court.
    The case in the Common Pleas was decided upon a special finding of facts, which are as follows :
    “ On the 23d of March, 1867, the testator, James Harper, purchased ffom the defendant, Daniel S. "Wadsworth, the-lands described in the petition for the sum of $6,000. That on the same day, and contemporaneously with the delivery of the deed, said Harper executed to defendant, Wadsworth, a mortgage upon the same lands, to secure the payment of the residue of the purchase money, to wit, $4,625, payable as is stated in the answer of said Wads-worth.
    “ That, afterward, to wit, on the 11th of September, 1867, the said James Harper was married to the defendant, Lucinda Harper; that no part of the money was due upon the said mortgage until the 23d of March, 1868, when the first note became due and interest upon all the notes ; ,that said note was not fully paid during the lifetime of said James Harper, and no part of the interest; that on the 6th’ day of January, 1869, James Harper died testate, leaving Lucinda Harper his widow, and several children by a former wife. The widow refused to take under the will, and brought suit, and was endowed in all the real estate of the testator prior to the bringing of this suit, except the lands in the petition described.
    
      “ The property of the testator consisted of sixty acres of land in Morgan county, Ohio, worth about $2,000 ; storehouse in Reinersville, in said county, worth about $2,000 ; the lands described in the petition, and about $6,600 in personal property. The executors converted the personal property into money, and paid the preferred debts, costs of ad-' ministration, and general debts, amounting to $5,400, and ■on the 6th day of January, 1870, applied all the residue upon the mortgage claim set out in Wadsworth’s answer herein, leaving a balance due upon the said mortgagefound by the probate court, to wit, $3,170.40; that the executors had no means out of which to pay said mortgage claim, except from the sale of real estate, and thereupon brought this suit; that the widow was thirty-seven years of age at the time of the order of distribution herein ; that the land sold in this case brought $6,020.’
    
      E. M. Stanbery, for plaintiff in error, cited and relied on The State Bank of Ohio v. Hinton, 21 Ohio St. 509.
    
      F. B. Pond, for defendant in error.
    The mortgagor, or husband, in this case, in possession until condition broken, was seized of the lands during «overture, as an estate of inheritance, not part of them, but all, not subject to the mortgage claim, but clear of it. McArthur v. Franklin, 16 Ohio St. 206; Carter v. Goodwin, 3 Ohio St. 77; 1 Hilliard on Mortgages, 162.
    Under our statute, the widow is dowable of “ one full, ■equal thii;d part of all lands and tenements and real estate of which her husband was seized as an estate of inheritance at any time during coverture.” S. & O. 516.
   Wright, J.

From the above statement of facts, it appears that Harper gave a purchase money mortgage. Afterward, but before condition broken, he married Lucinda Harper, the defendant in error, claiming dower. Harper’s executors sold the mortgaged property to pay a balance due upon the mortgage. After paying the debt, a surplus re•mained. The question is: Is Lucinda Harper dowable of this surplus alone, or of the whole sum for which the mortgaged premises sold ?

The widow is dowable: First, where the husband is -seized of an inheritable estate during coverture. Second, where he has an equitable estate at his death.

In this case, the right of dower in the whole sum for which the mortgaged premises sold depends upon this: "Was the husband seized of this estate during coverture?

The proposition is often stated, that the mortgagor has a legal estate, and that he has a seizin in law. Perhaps this 'idea generally prevails in the State of Ohio. For the interest he has in -property which he has mortgaged, and which is denominated his equity of redemption, may be levied on and sold, like any other legal estate.

At common law, the mortgage was an estate upon condition. The legal estate was conveyed to the mortgagee^ subject to be defeated by the payment of the money. The mortgagor, therefore, could not be said, technically, to be ■seized. Really, all 'the husband owned at any time during coverture was the residue remaining after the mortgage debt was paid. If the wife seeks dower in more than this, upon the technical doctrine of -seizin, she must be content with exactly what the technicality gives her.. And if, by making the mortgage before marriage, conveying away his legal estate upon condition that he might redeem it, the husband retains seizin no longer, the ground of the wife’s ■claim is gone.

Under our decisions, it is held that the seizin of one who makes a purchase-money mortgage is technical, and is not .an estate to which dower attaches. Welch v. BucMns, 9 Ohio St. 331. ■ Of that character is the seizin in this case. It was a purchase-money mortgage, made before marriage, and the seizin, whatever it was, instantaneous or otherwise, was conveyed away by this mortgage, in strict law. The ■deed of conveyance was a deed of condition, by which the liusband might redeem, still it was a deed sufficient to transfer this technical seizin, though named a mortgage.

This doctrine of instantaneous seizin is somewhat technical. It was invented for righteous ends, and is therefore useful. It would he the height of wrong that, a wife should have dower as against the purchase-money mortgage. But the fact is, it is not the duration of time so much as the beneficial interest in the husband, that is the criterion. 1 Wash. Real Prop. 175, 218. According to this, the husband has no beneficial interest except in what was left after paying1’ the debt, and the wife takes the husband, as she takes the estate, cum onere.

In State Bank v. Hinton, 21 Ohio St. 509, the wife joined in the mortgage and she was held dowable of the surplus and not of the whole proceeds payable.out of the surplus.

In the present ease the mortgage was made before marriage, and we think the same rule should apply. Nor do we think that because the marriage occurred before condition broken, the case is varied. At the time of his death the husband had but an equitable estate, and to that extent alone his widow is dowable.

Judgment of Common Pleas reversed, and cause remanded to that court for further proceedings.

Scott, Chief Judge, Day, Johnson, and Ashburn, JJ.r concurred.  