
    In Bank.
    Dec. Term, 1846.
    Charles Rands and Wife vs. Uzziah Kendall.
    Where land is mortgaged by the husband and the condition is broken before the marriage, and the equity of redemption is released by the mortgagor during coverture, his widow is not entitled to dower, after his decease.
    To entitle the widow to dower, her husband must have been seized of a legal estate of inheritance during the coverture, or of an equitable interest at the time of his death.
    This is a Petition for Dower, reserved in the County of Hamilton.
    The complainant, Rachel Rands, claims dower in certain real estate of the defendant, part of lot number forty-nine, in the city of Cincinnati, as the widow of Adbeel Coleman, deceased, who died November 16th, 1824, and to whom she Was married on the 18th of March, 1821.
    The facts of the case, as they appear from the bill, answer, exhibits and testimony, are these: On the 24th of April, 1818, being before the marriage, Adbeel Coleman mortgaged out-lot, number forty-nine, to James Ferguson, to secure the payment of a note of that date to the said Ferguson, or his heirs or assigns, for the sum of $2910, on or before the 24th day of April, 1825, with lawful interest, to be paid annually, from the 24th of April, 1819. The condition of the deed is, that the same shall be void on the payment of said sum of money, according to the tenor and effect of said note, otherwise to be of full force.
    On the 18th of March, 1821, Adbeel Coleman intermarried with the complainant, Rachel Rands.
    On the 4th of October, of the same year, James Ferguson transferred said note and mortgage to Joseph Wright, by assignment duly made, and, on the same day, Wright agreed to an extension of credit on the note of three years.
    On the 2d of November, 1824, Adbeel Coleman conveyed to Joseph Wright the said lot. The deed recites the mortgage; also recites that, “ on the 4th of October, 1821, the said James £ Ferguson, by his assignment in writing, indorsed on the back £ of said indenture of mortgage, did assign and transfer all his £ interest and claim of, in and to said mortgage," for a valuable "£ consideration: "And, whereas, the whole of said sum of $2910 ‘ still remains unpaid, and no part of the interest on' the said ‘ $2910 has been paid, but remains due, to the amount of £ $785.70; and whereas I, the said Adbeel Coleman; am fully £ satisfied that the principal sum, to become due as aforesaid, £ and the interest now due thereon, is the full value of the said £ mortgaged premises, and that I, the said Adbeel'Coleman, am £ not, nor shall be able to redeem the same: Now know ye £ that I, the skid Adbeel Coleman, in consideration thereof, and £ of my being fully and clearly exonerated from the debt and £ interest, secured by said mortgage,” &c. He releases the proviso, or condition in the mortgage, and all benefit of equity of redemption, and also grants, bargains and sells the premises, to Joseph Wright, his heirs and assigns.
    This deed was executed by Coleman, and Rachel, his wife, with a relinquishment of dower on her part. It was acknowledged before a Justice of the Peace; but it is claimed that there is some informality in the acknowledgment, which, under a former decision of this Court, it is said rendered it void as to the feme covert.
    On the 16th November, 1824, Adbeel Coleman died, and, on the 23d of December, 1831, Wright, on the margin of the mortgage, entered an acknowledgment of satisfaction, under his hand and seal.
    • The defendant, Kendall, derives title from Wright, and holds the estate of inheritance. •
    The complainants intermarried before the commencement of this -suit.
    
      Corry fy Russell, for Complainants.
    "First: The mortgagor of fee simple lands is seized of an •estate of inheritance, subject to the lien or incumbrance of the debt. The mortgagee is not seized of any “ estate of inheritanee.” either before or after condition broken, or before or after possession taken. He is a pledgee only-until foreclosure. Lessee of Perkins v. Dibble, 10 Ohio Rep. 439; Moore v. Burnet, 11 Ohio Rep. 341; 4 Kent’s Com. (5th Ed.,) 195. ■ It follows that a mortgagor’s widow is entitled to dower out of lands mortgaged before the marriage and conveyed by the husband alone afterwards. The claim in such case is subject to the mortgage debt, which must be paid by-her, if the same be not held by the heir or grantee of the freehold, in which latter case she bears her fair proportion. Montgomery v. Bruere, 2 South. Rep. 865; Collins v. Torry, 1 Johns. Rep. 282; Coles v. Coles, 15 Johns. Rep. 319; Russell v. Austin, 1 Paige’s Rep. 192; Van Dyne v. Thayre, 14 Wend. Rep. 233; Gibson v. Crehore, 5 Pick. Rep. 147; Cooyer v. Whitney, 3 Hill’s Rep. 96 ; Smith v. Eustis, 7 Greenl. Rep. 41; Bell v. Mayor of New York, 10 Paige’s Rep. 49.
    Second: The mortgage money was not due when the marriage took place, nor when the husband alienated the land, and it is not proved that the condition had been broken in any respect.
    Joseph Wright took possession as grantee of an estate of inheritance, and not as mortgagee. The mortgage was extinguished by the release of the debt.
    Third: An outstanding mortgage estate, in a third person, cannot be set up even to defeat an action at law for dower. If the mortgage estate existed after the discharge of the debt, such estate was in James Ferguson, the original mortgagee. Hitchcock v. Harrington, 6 Johns. Rep. 290; Lessee of Perkins v. Dibble, 10 Ohio Rep. 433.
    If Joseph Wright became the mortgagee, by virtue of the transfer to him, without a conveyance of the land, the mortgage estate must have been a mere pledge, and an incident to the debt, and the mortgagee was not “ seized as an estate of inheritance.” It follows that the mortgagor must have been so seized.
    
      Fourth: A court of equity cannot set up a mortgage as an incumbrance upon the dower, although that is sometimes done where there is a merger at law, in consequence of a purchaser of the inheritance becoming assignee of the pledge. That is not the present case. The debt was released in consideration of the conveyance to Joseph Wright, and the mortgage was thereby extinguished.
    Fifth: When a bill for dower is filed against the owner of the inheritance, and a mortgage exists, and is brought forward as an incumbrance upon the dower estate, the widow is entitled to dower, subject to her proportion of the mortgage. 4 Kent’s Com. 46 ; Swaine v. Perrine, 5 Johns. Ch. Rep. 482; Carl v. Butman, 7 Greenl. Rep. 102; Van Vrouker v. Eastman, 7 Met. Rep. 157, and cases cited above.
    
      Storer. Gwynne, for Defendant.
    Dower is subject to all incumbrances against the husband’s estate, at the time of the marriage. Her dower estate is subordinate to and grows out of the estate of the husband, as the latter existed at the date of the marriage, or the period of its acquisition. Green v. Green, 1 Ohio Rep. 542; Sumner v. Hampson, 8 Ohio Rep. 364; Nazareth Institute v. Lowe, 1 fe. Mon. Rep. 258; McArthur v. Porter, 1 Ohio Rep. 101; 7 Paige’s Rep. 287; 23 Pick. Rep. 80; 1 B. Mon. Rep. -76 ; 1 Ohio Rep. 415.
    The mortgagor, at the time of the conveyance to Wright, had but an equity in the premises, and the release of this equity was equivalent to a foreclosure, and barred the wife of dower. 4 Kent’s Com. 45; 2 Serg. on Vend. 224, n.; Van] Dyne v. Thayre, 19 Wend. Rep. 173; Edwards v. Farmers’ Co., 21 Wend. Rep. 485."
    No dower exists against the mortgage or his assignee, or against any one who can avail himself of and connect himself with the mortgage. Popkin v. Bumstead, 8 Mass.-Rep. 491; Bird v, Gardner, 10 Mass, Rep. 364; Scott v. Hancock, 13 Mass. Rep. 168; Gibson v. Crehore, 3 Pick. Rep. 475; Cooper v. Whitney, 3 Hill’s Rep. 102.
    The mortgage in this case still exists, unextinguished by the release of the equity of redemption. 2 Conn. Rep. 161; 6 Conn. Rep. 388; Jones v. Morey, 2 Cow. Rep. 303 ; Dexter v. Harris, 2 Mason’s Rep. 539; Robinson v. Leavitt, 7 New Hamp. Rep. 95; Loud v. Lane, 8 Met. Rep. 518.
    The estate of Coleman was equitable merely, and the statute of Ohio only gives dower in equitable estates,, where the husband was possessed- thereof at the- time of his death. Derush v. Brown, 8 Ohio Rep. 413 ; Smiley v. Wright,- 2 Ohio Rep. 507; St. Clair v. Morris, 9 Ohio Rep. 15; 2 Ohio Rep. 224; 8 Ohio Rep. 222; Raguet v. Roll, 7 Ohio Rep. (part 2,) 72; Cowles v. Raguet et al., 14 Ohio Rep. 56; Heth v. Cocke, 1 Rand. Rep. 347.
   Hitchcock, J.

The claim of the complainants is not barred by the statute of limitation, for the bill was filed and subpoena served in January, 1825, being but little more than twenty years after the right of action accrued, whereas, under the statute, no period of time less than twenty-one years would operate as a bar.

Whether the acknowledgment of the deed executed in November,. 1824, is defective, so far as the wife is concerned, we do not deem it necessary to decide. It is a question upon which the Court is divided in opinion, and if the determination of the case depended alone upon the decision of that question, it would, probably remain undetermined.

The subject of dower, in this State, is regulated by statute, and the act upon this subject provides, in the first section, “ That the widow of any person dying, shall, be endowed of £ one full and equal third part of all the lands, tenements and £ real estate of which her husband was seized, as an estate of £ inheritance, during the coverture; and she shall in like man-c ner be endowed of one-third part of all the right, title or £ interest that her husband, at the time of his decease, had in ‘ any lands and tenements held by bond, article, lease or other f' evidence of claim;”' There is no. mistaking of the provisions of this law.' Its terms.are clear, precise and explicit.. That a . widow may have dower, her husband must have had,..át some time during the coverture,' a legal .title to the premises in which dower is .demanded, or he must-have' had an equitable interest, at the time of his death. If, at any time during coverture' Of Adbéel Coleman with the complainant, Rachel Rand,, he. had a legal title to the land now in controversy, or if, he h'ad an equitable interest in the same land at the time ,of his death, the complainants are entitled to a. decree.

Then what are the facts ? .On the 24th of April, 1848, and before his marriage to the complainant, Rachel, Adbeel Coleman-mortgaged this land to " James. Ferguson, to .secure the payment of $2,910, with, a proviso or condition in the cj,ee.d, that if this $2,910 should be paid' .on or before the 24th of April, 1825, with lawful interest, to be paid annually, from 24th April, 1819, then the deed to be void/ The mortgage was not to secure the payment of the principal sum alone, but, also, to secure the annual payment of interest. On the 24th of April). 1820, the first installment of interest, fell due, but was'riot paid, and the condition was broken. . What is the consequence ?

Complainants’ counsel contend, that as. it .was'a simple 'security for the payment of a- debt, the mortgage is a mere incident to the debt, and that although the condition is broken, yet that the' legal title, to the land remains, as before, in the mortgagor. The modern.decisions and the decisions of this'.Court, to a certain extent, favor this opinion. It has been repeatedly held that an execution might be levied upon the land, the- mortgagor being in possession; that the mortgagor was to-'be.considered' as having the legal title. But it has never been so held but with this restriction: that as between the parties to a mortgage, the deed, after condition broken, becomes obsolete. As . to all the world but the parties, the legal title is considéred as in the mortgagor; but, as between the parties and those claiming under them, the legal title is'vested in the mortgagee., I think I am not mistaken in saying, that such has been the uniform ' language of the Court; and, therefore, it is, that after •condition broken, the mortgagee may recover the possession of the land in an action of ejectment. Without the legal title, he could not so recover. Such being the law, it follows, that the condition being broken by the nonpayment of the interest which fell due on the 24th April, 1824, the legal title then became, as between Ferguson and Coleman, vested in Ferguson, and was never afterwards vested'in Coleman. It was after this period that his marriage vrith Rachel Rand took place, and during the coverture he had not an estate of inheritance in the land in which dower is demanded.

But during the coverture he had an equity — the equity of redemption. Did this equity continue in him at the time of his death? Wright, in 1821, acquired an interest by the assignment of the note and mortgage, and on the 2d of November, 1824, Coleman conveyed to him his interest in the land. That interest was nothing but an equity of redemption. In fact, it is apparent that the object was to convey or release this equity of redemption. But the language of the deed is broad and comprehensive enough to convey whatever interest he might have had in the property. His wife joined with him in this conveyance, undoubtedly supposing she had a right of dower, and intending to release that right. But now, supposing that there is some formal defect in the acknowledgment, she seeks to avoid the deed. She may, perhaps, avoid the deed, but if she does, it can do her no- good. ' She had not such an interest in the land, as that it was necessary.for her to join in the deed. Whether she could ever have an interest, depended ' upon the contingency that her husband should die possessed of an equity. Having but an equity, he could transfer it by his own deed, and, thereby, defeat his wife of dower. He did not wish to do this, however, without her consent, and, therefore, she joined him in the conveyance.

The complainant may, by possibility, be in a worse situation than she would have been had the equity of redemption not been conveyed; but it is by no means certain. In such case, it is true, she would have been nominally entitled to dower, not because her bus band was seized of a legal estate during the coverture, but because he died possessed of an equity. But her dower would have been subject to the lien of the mortgage, inasmuch as that was a subsisting lien at the time of the marriage. If, upon sale under a decree of a court of chancery, .the mortgaged premises had been sold for the satisfaction of the debt secured, and any surplus remained after the satisfaction of the debt, of this surplus she might have claimed a share in virtue of her right of dower. Beyond this, she could claim nothing.

But it is claimed that the debt was paid , and the mortgage satisfied by the execution of the deed, which operates as a relinquishment of the equity of redemption, and that the widow is to have dower as of legal estate. Now, what was the real nature of the transaction ? The land had been mortgaged in 1818, to secure the payment of a debt. In 1824, the mortgagor became satisfied that it was of less value than the amount of the debt. An arrangement was made between the mortgagor and the assignee of the mortgage and debt, by which the mortgagor was to transfer his remaining interest in the land to the assignee, which was to be received in full satisfaction of the entire debt. This arrangement was carried into effect, and now this Court is called upon, not as a court of law, but as a court of equity, to say that the effect of this agreement was such as to restore the mortgagor to his legal estate, or, at least, so far to restore him as that his widow shall have dower. This may be equitable, but I do not understand how. On the contrary, it is clear to my mind that such decision would be manifestly inequitable and unjust.

And who is it that makes this claim upon the Court ? Not the “ lone widow,” the “ poor, unprotected female” The “ widow made no complaint while a ■“ widowthe “ female ” made no complaint while unprotected.” It is not the “ widow,” but it is Charles Band, the husband of that widow, who , is calling for the equitable interference of this Court. And in order to obtain that interference, his wife is compelled to do an act which she did not do during her widowhood, that is, to deny her solemn deed, on the ground that a magistrate made a mistake in reducing the acknowledgment to writing. ’

Inasmuch as Adbeel Coleman had no legal estate in the land in which dower is demanded, during his coverture with the complainant, Rachel Rand, and inasmuch as he had no equitable interest in the same at the time of his death, she is not entitled to dower, and the bill must be dismissed at complainants’ costs.

Read, J.,

dissenting. I am of opinion that Adbeel Coleman was seized of an estate of inheritance during the coverture, within the meaning of the dower act applicable to this case.'

Up to the present term, although there have been conflicting dicta, the decisions of this Court have uniformly treated the mortgagee as a mere lien holder at law, as well as in equity. Accordingly the estate of the mortgagor has been sold upon a common law execution as legal estate, in fee simple, and mortgagees have not reconveyed on receiving payment of their debts.

The great question is, whether a mortgagee, after condition broken, holds the legal estate in fee. If he be not the owner of the legal estate of inheritance, it is clear the mortgagor is such owner. This Court has expressly decided that a mortgagee may, after condition broken, assign whatever interest he holds in the mortgaged lands by a mere assignment of the debt, and also that payment of the debt extinguishes such interest. That the mortgagee holds a legal interest and has good right to the possession of the mortgaged property, whether real or personal, is not doubted, wherefore he may maintain an action to recover the possession. This right is perfectly' consistent with the character of his lien — whereas the doctrine that the mortgagee of land, after condition broken, is the legal freeholder, and yet that he may transfer his interest without deed, is manifestly inconsistent.

It Is said-that, at all events, as between the parties, the mort- , f , ^ t ’ gagee is the freeholder. But that opinion is irreconcilable with the decision that payment of the debt destroys all the interest of the mortgagee as to all the world, including the parties. The reason given is, that the mortgagee is at law as well as in •equity a mere creditor,-who has a specific:,lien on the property for the payment'bf his debts. Perkins v. Dibble, 10 Ohio Rep. 439; Moore v. Burnet, 11; Ohio Rep. 341; Cameron v. Hill, 5 Hill’s Rep. 276 ; Edwards v. The Farmer's Fire Co. 21 Wend. Rep. 483, 486-7 ; S. C. on error, 26 Wend. Rep. 541. A's between the parties to the mortgage, an assignment of the mortgage debt confers the mortgage title upon the assignee, and he must be regarded by the debtor as.the mortgagee, both at law and- in equity.

In Collins v, Torry, 7 J. Rep. 282, the Court said : “ We cannot now, with any justice - or consistency, say. that the in- { terést of the mortgagor is the real estate- at law, and yet that ‘it is not such'.estate when the' mortgagors widow comes to ask her dower of .the heir or grantee of her husband.” Judge Southard, in Montgomery v. Bruere, 1 Southard, 276, seems most thoroughly to have .understood and most -felicitously to have explained the American doctrine of mortgages.' I shall therefore quote liberally from his opinion.'

“ The great object of inquiry on, this subject is, where was ‘ the legal seizin of the land at the marriage ? in the mortgagor ‘ or mortgagee ? It is the legal seizin which is the object of ‘search, because'that, is subject to dower. . However strong ‘ may be the light in. which the estate of. ihe- mortgagor is ‘ viewed in the courts of equity, that light} although it may ‘ direct to'the reáson and justice of the claim, will not govern ‘ the decision of this Court; We'give dower -in lands, in which ‘ we find the legal seizin.. - But when that "seizin' is'- found, it' ‘ must be subject, to all legal consequences and incumbrances! ‘ We are not -to maintain it for one purpose and deny it for ‘. another:. to toss it backward, and .forward as may suit the ‘ convenience , bf the tenant, at one time giving him .all the ben- * efits, at another freeing him from all the burdens necessarily £ flowing from a full title.

“ The seizin, if in the mortgagor before the mortgage was £ executed, must remain in him, or be transferred to the mort- £ gagee. It must be found somewhere. Is it in the mortgagee ?

££ Originally mortgages were feoffments, conveyances of land from debtor to creditor, with condition that if the money was not paid at the day appointed, the lands became absolutely 1 vested in the creditor freed from the condition. Lit. sec. 332. The strictest maxims of the common law respecting condic tions, were applied to them. Even a subsequent tender of £ the money did not avail the debtor: he lost the land, no mat- £ ter how high its value, or how small the sum which it was de- £ signed to secure. 5 Rep. 95, 114.

££ This was so obviously unjust, that courts of equity inter- fered, and courts of common law have aided in the establish- £ ment of different doctrines. Since the reign of James I. the- £ right of redemption has been fixed so that the mortgagee can in no way invade it, .even by incorporating an agreement in £ the deed itself. 1 Ver. 33, 190, 138, 488; 2 Rep in Ch. 221; ' 2 Ver. 520. Since that time, the mortgagee has had no cer- tain and absolute estate in the land until after foreclosure, and £ that is the- creation of a new. title, not the confirmation of an £ old one. 1 Atk. 603. Even if he recovers the possession by 1 entry, or by suit, he holds not for himself by title ;' he must £ account to the last farthing for the profits, and his possession £ may be at any moment, at the will of the mortgagor, terminae ted. 1 Vern. 476, 45; 2 Atk. 534. He cannot use it as £ his own: he will not be permitted to do waste. Cro. Jac. 172; '3 Atk. 728. He cannot sell or lease so as to bind the mortc gagor. 9 Mod. 1. He could not even bar him by fine or £ recovery, when they were in use. His estate is not at any £ time considered as real, but personal. 2 Ver. 401. It is a mere security, a mere charge on the land, and whatever £ gives the money gives all the estate he has for every purpose. 1 2 Burr 969.

These doctrines, though principally established in equity, ‘ operate completely at common law. A mortgagee is there £ considered as a freeholder for no single purpose of office, of benefit, or of burden. He can hold no public office, he can exercise no public duty requiring an estate in lands. He £ cannot gain a settlement: his property is personal assets in £ settling his estate, if he devises it: it will not pass by the word ‘ land or real estate, nor is it necessary that his will be executed with the legal requisites to pass them. It is not subject to £ courtesy or dower, the necessary attendants upon legal estates £in lands. Even a transfer of the debt in any way terminates £ it. 2 Burr 969. It has not one single characteristic of a 1 legal estate. It is a mere security for the money, and a power c to gain possession of the land in order to make it. ReeVes D. R. 53. Shall we then say that the seizin is in the mort- gagee ? Because it was of old so determined, when all legal £ consequences of an estate followed it, shall we. so determine when not one legal consequence follows ? For the sake of an 1 adherence to an old doctrine, shall we break down every legal ‘ reason, doctrine and distinction ? I cannot doubt on this 1 point.

“ But again,— estates at common law. pass by livery of seizin, £ or what is equivalent thereto, and, when passed, can be re- £ stored to the grantor only by an act of equal validity. If, £ then, the execution of the mortgage transfers the estate, it can £ be restored only by some legal conveyance. This is the ne- £ cessary common law doctrine, and was adjudged and acted £ upon while the estate was considered as transferred to the £ mortgagee; Cro. Car. 190. But the mere payment of the £ money — the discharge of the bond in any mode ■— is now £ said' to re-invest the estate. Is there any principle for this, £ or any . other instance in which it was ever heard that a legal estate in lands could be passed by the mere payment of a sum £ of money, without livery and without deed ? Yet such is here the doctrine.

“ Again, according to the well established rule of this day, a { wife cannot have dower in the estate or interest of the mort- ‘ gagee. If, therefore, dower be not given in the estate of the ‘ mortgagor, all lands mortgaged before marriage are free from * this claim. This is, then, a most easy contrivance to relieve £ all lands from dower, and it is time for us to expunge the as- sertion.that dower is favored in the law. We not only suffer £ it to be easily defeated, but we do not even give it the advant- * age of courtesy, a right surely not founded in equal reason.

“ It appears to me that there is no way of extricating our- ' selves from innumerable absurdities, but by deciding that the £ interest of the mortgagee is a mere incumbrance or security, £ and that the legal estate remains in the mortgagor; and if so, ‘ the consequence follows that the widow is entitled to her ' dower.

££ And is it not proper, according to the nature of the claim, £ and the analogy in other cases, that this should be so ? I think £ it is. The right to dower is acknowledged, on all hands, to £ be one founded on high legal, equitable and moral considera- £ tions, and ought not lightly to be evaded.” ,

Where the mortgage is held to be a lien at law as well as in equity — where it is held that a reconveyance by the mortgagee is unnecessary, and that he may transfer his interest otherwise than by deed, then it is held that the mortgagor is seized of an estate of inheritance, both before and after condition broken, and that his widow is entitled to dower, subject to the payment of the mortgage debt. As, however, the mortgagee has the legal right to the possession until he is satisfied, the doweress, cannot disturb him’ if he be in possession, but must first redeem the mortgage. A conveyance by the mortgagor, without his wife’s concurrence, will not affect her right, and it is immaterial whether the conveyance be to a stranger or to the mortgagee himself. If the mortgagee be in possession under his mortgage, an action at law for dower cannot be maintained, simply because the mortgagee has the legal right to the possession, and the remedy of the doweress is a bill to redeem. After the redemptíon, a court of equity will apportion the debt between the doweress and the heir. . If the latter, or the husband’s grantee be in possession, the bill is filed for dower, and not for redemption, and. the mortgage debt is fairly apportioned. These various propositions are established by the following additional authorities, cited in argument: Coles v. Coles, 15 Johns. Rep. 319 ; Collins v. Torry, 7 Johns. Rep. 282; Harrison v. Eldridge, 2 Halst. Rep. 392; Barker v. Parker, 17 Mass. Rep. 564; Gibson v. Crehore, 5 Pick. Rep. 147; Van Dyne v. Thayre, 14 Wend. Rep. 236; Cooper v. Whitney, 3 Hill’s Rep. 96; Smith v. Eustace, 7 Greenl. Rep. 41; Bell v. Mayor of New York, 10 Paige’s Rep. 54, 68; 19 Wend. Rep. 162; 4 Kent’s Com. 44, 46, 47, 66, 195; 7 Greenl. Rep. 102; 7 Met. Rep. 157; 5 Johns. Ch. Rep. 482.

There is no good reason why a court-of law should not construe a mortgage deed to mean what a court of equity declares it to mean, and what every body understands it to mean, that is, a mere security for a. debt.

It is said the mortgagee must be the freeholder, because he can eject his debtor. Now the plaintiff in ejectment recovers upon a possessory right or title to the possession, and it Í3 conceded that the mortgagee is entitled to the possession; See 2 Cruise’s Dig. 105, note by American Editor. A pledgee of chattels may maintain an action of detinue, but it does not follow that he is the real owner, in legal contemplation. He is not so regarded ; Story on Bailment, sec. 307. If I pledge my house with my creditor to secure a debt, I remain the owner notwithstanding he have both the possession and the right to the possession united. Nor does the bill in equity to foreclose a mortgage of lands or a pledge of chattels proceed upon the assumption that the debtor has only an equitable right; on the contrary, the Court act upon the legal right to redeem and compel its exercise within a reasonable time on penalty of foreclosure. A majority of the Court say that Adbeel Coleman, after the condition broken, had but an equity which he could transfer by his own deed. If he had but an equity, he could transfer it without a deed, and so could his assignee, and as the mortgagee could also transfer all his interest without a deed, the whole fee simple and inheritance might be conveyed, from time to time, without a deed, in defiance of the statute regulating the transfer of land. This is only one of the numerous absurdities flowing from the proposition that the mortgagee is the freeholder, and, yet, that he may transfer all his interest by a mere assignment of the debt. It is worthy of remark, that the assignment of the mortgage from Ferguson to .Wright was not by deed, but by mere memorandum on the mortgage. No sufficient reason can be assigned for a departure from the rule hitherto established, in this State, that the mortgagee does not hold a fee simple estate of inheritance. The rule is now abandoned for the sake of destroying the right to dower, which is acknowledged to be a right founded on high legal, equitable and moral considerations. Besides which, the breach of the rule destroys the symmetry of the whole structure of our law, and lets in inextricable confusion where order reigned before.

It is contended by defendants’ counsel, that a conveyance by the mortgagor ought to bar dower, because a foreclosure of the mortgage would have that effect. But it might as well be said that a conveyance by a judgment debtor would bar dower, because a judicial sale under a judgment rendered before marriage would have the same effect. The simple question is, at last, whether the legal estate of inheritance is in the mortgagee ? It is not in him, as we have seen, and, therefore, the mortgagor’s conveyance cannot bar her dower; nor will the conveyance of the sheriff, under a judgment rendered during the coverture, because the sheriff can only convey what the debtor could convey himself. 2 Halstead, 392.

There is a discrepancy in the opinion of a majority of the Court itself, which is quite remarkable. It affirms that the mortgagor is seized against the whole world except the mortgagee or his grantee. And yet we find that Coleman did not convey to the mortgagee nor his grantee, but to one having a mere assignment of the debt. The Court, in order to defeat dower, must go the impossible length of holding to the different rule, viz: that the mortgagor is not seized, as against such assignee; also, because, I suppose, he is, after condition broken, the freeholder of the mortgaged premises. The proposition of the Court must be materially modified, because it is now discovered that the mortgagor is not seized as to all the world except the mortgagee; for, under that rule, the widow could claim dower against the grantee of the husband, and such grantee could not deny the seizin of the husband, and insist that it was in a third person — the mortgagee. But it is in vain to look for consistency in the doctrine now advanced by a marj.oity of the Court, or to endeavor to reconcile it with former decisions in this State or elsewhere. As to the expression commonly met with, that the mortgagor is the legal owner against all the world except the mortgagee, the meaning of that is, that although the mortgagee has the legal right to the possession, the mortgagor is, nevertheless, the owner, and no other person can set up the mortgage against him in a court of law. His action of ejectment cannot be defeated by proof that the possessory right is in the mortgagee, because that possessory right is qualified and of a peculiar character, unlike the absolute right to the possession for a term certain, which, if vested in a third person, would prevent the owner of the reversion from maintaining an action of ejectment against a trespasser. As against all the world, then, but the mortgagee, the mortgagor has a complete legal litle, but as against him, his title is not complete, because the mortgagee has the possessory right for the single purpose of making his debt.

With these views of the nature of Coleman’s estate in these premises* I need not inquire into the application of the clause of the dower act giving the widow dower out of the third part of the interest of the husband, at the time of his decease, in land “ held by bond, article, lease or other evidence of claim.” If the absolute owner of land is seized, then Coleman was seized of the land, during the coverture, upon the well settled and sound American construction of a mortgage.

There is still another discrepancy in the opinion of the majority of the Court. It is assumed, that the mortgagee is not the freeholder until the condition has been broken, so that he may maintain an action of ejectment. Apply this doctrine to the present case, and the complainants are entitled to recover; for, after the marriage, an extension of credit was given on the mortgage debt. I presume that no action of ejectment could have been maintained, after this transaction, until a failure to pay interest, previous defaults, if any, having been maintained. The only proof of a previous default, is a recital in Coleman’s conveyance to Wright. Whether that is sufficient, or what is the legal presumption under the circumstances, I need not consider. Indeed, there is no end of anomalies under this decisison ; for, if the legal estate of inheritance ever become vested in the mortgagee at all, it must have become vested immediately upon the delivery of the mortgage, subject only to be divested on performance of the condition. This is the old common law doctrine of mortgages; but if we are to restore that doctrine, the mortgagor’s widow is never entitled to dower, no matter whether the marriage takes place before condition broken or after. “ The fee simple conditional ” is always a bar from the delivery of the mortgage. I do not understand that the Court are called upon by complainant’s solicitors to say that the effect of the arrangement between Coleman and Wright “ was such as to restore. the mortgagor to his legal estate.” They insist that Coleman, the mortgagor, was the freeholder at law and in equity, during the coverture, up to the time of the conveyance to Wright. They contend further, that the price of that conveyance was the mortgage money itself, thereby paid off, so that the claim of dower is not subject to any debt; but if it be so subject, they require the defendant, as owner of the inheritance, to bear his proportion according to the settled rules of equity. The bill is filed, as required by the statute,, against the next estate of inheritance. The defendant is such owner by virtue of the conveyance from Coleman, and by no other means, for he does not claim under any legal conveyance by deed from Ferguson, the mortgagee. If there be any lien by judgment or mortgage, it may, under the statute, be set up in the suit for dower against the owner of the inheritance, and be made a charge upon the dower claim. It might be set up independent of any statute; but the express provision to that effect, in our statute, is useful here, as it assumes that the defendant may be the. owner of the inheritance, notwithstanding the existence of a mortgage on his estate, and actually provides for the apportionment of the mortgage debts, upon claim of dower; Swan’s Stat. 298, sec. 10. It has been said, that the female complainant has been “ compelled,” by her husband, to deny her “ solemn deed.” T am at a loss to conjecture upon what ground this remark has been made. There is no evidence, in my opinion, affording the least countenance to it. The deed from Coleman to Wright does not appear to have been understandingly executed by Mrs. Coleman, (now Mrs. Rand,) and we have no right to say that it was so executed and was her “solemn deed.”

I am clearly and decidedly of opinion that Adbeel Coleman was seized of an estate of inheritance during the coverture, and that his widow is entitled to dower.  