
    Cooper and wife vs. Whitney.
    Though a female who married in 1810 immediately deserted her husband, and ever after lived in adultery with another, she may nevertheless be endowed of her husband’s lands, provided he died since the revised statutes took effect, without having obtained a divorce.
    In 1832, M., having three mortgages outstanding against him, owned respectively by S., L. and B., covering the same premises, executed to B. a deed of the premises absolute on its face. At the time of giving the deed a covenant was entered into between M. and B., by which, after reciting M.’s liability for the debts secured by the mortgages, and that the deed was given “ for the purpose and in consideration on the part of said M. of paying his aforesaid debts, and for the purpose and in consideration on the part of said B. of securing his claim,” &c., it was agreed, that B. should satisfy and discharge the mortgage debts of S. and L., &c. and deliver up the bond accompanying his own mortgage to be cancelled: also that, if B. should be able, in a reasonable time, to sell the premises for more than sufficient to satisfy the three debts, together with his expenses, &c. he would pay the excess to M. &c. B. never took possession of the premises, but in 1833, conveyed- them to W. for a sum more than sufficient to satisfy the debts, and the excess was duly paid to M. The mortgages of L. and B. were paid out of the purchase money; and W., during the same year that he purchased, conveyed the premises to the wife of one V., who with her husband went into possession and have continued to occupy ever since. Shortly after their possession commenced, V. took an assignment of S.’s mortgage which was then due; and in 1834 B. died, leaving a widow, who brought ejectment against V., claiming that she was entitled to dower in the premises. Held, that she could not recover.
    If a deed of lands be given, absolute on its face, and a contemporaneous covenant executed between the parties, expressing the object of the conveyance and importing a qualification of the title designed to be conveyed, both should be regarded as one instrument.
    
      Semble, that notwithstanding what was said in Palmer v. Cturnsey, (7 Wend. 248,) the reservation of a right to redeem is necessary to constitute a technical mortgage.
    Whether a deed and covenant, which, construed as one instrument, contain all the essentials of a mortgage, with the single exception of there being no express provision that the deed shall become void on payment, can be deemed a mortgage, quere.
    
    Where a deed of lands is executed, and a covenant made between the parties at the same time, declaring that the grantee shall sell the lands to pay certain of the grantor’s debts, and return to him the surplus, but containing no reservation of a right to redeem, the transaction will be regarded as constituting a conveyance in trust, and not a mortgage. Semble.
    
    Such a trust is valid, both at common law, and under the revised statutes.
    And though in the instrument creating the trust there be no express stipulation on the part of the trustee that he will sell, yet if such be the obvious intent as gathered from the different parts of it, a court of equity will compel a sale.
    A widow is not dowable of a mere trust estate of her husband.
    Though a widow is entitled to dower in an equity of redemption, she canno1 maintain ejectment for it against the mortgagee or his assigns in possession, if the mortgage be forfeited; but must resort to a court of equity.
    Where the purchaser of an equity of redemption is in possession, and takes an as signment of the mortgage, his equitable interest is thereby merged in the legal, and his title rendered absolute. Semble.
    
    A husband and wife may have separate interests in the same real property; though for many purposes they are regarded in law as one person.
    If, after a conveyance to a wife of an equity of redemption, she and her husband take possession of the mortgaged premises, and the husband become the assignee of the mortgage, this is not such a union of the equitable and legal interest in the same person as renders the doctrine of merger applicable; but the wife will be regarded as holding under the mortgagor, and the husband under the mortgagee. Semble.
    
    A grantee of .lands, in ejectment against him for dower brought by the widow of his grantor, is not estopped from showing the real nature of the interest which the grantor had in the premises; e. g., that instead of being absolute owner, he was a mere mortgagee, or trustee with power to sell. Semble.
    
    
      So, it may be shown that the grantor’s interest was an equity of redemption only, and that the grantee has become the owner or assignee of the mortgage.
    Ejectment, to recover an undivided third of a lot of land in the village of Binghamton, Broome county, which the plaintiffs claimed as the dower of Mrs. Cooper, who was widow of John Burlew deceased. The cause was tried at the Broome circuit, in May, 1840. The case was this : Burlew and Mrs, Cooper were married in July, 1810, but had never afterwards lived together. Soon after the marriage, Mrs. Cooper went to live with her present husband, and had continued to live with him ever since, he treating her as his wife. On the 28th of September, 1829, Lewis St, John conveyed the premises in question to Sidney S. and George Morse, who on the same day mortgaged the property to St. John, to secure the payment of §200 with interest. On the 18th of February, 1830, George Morse released his interest in the property to Sidney S. Morse. On the 14th of May, 1832, Sidney S. Morse mortgaged the property to Francis T. Luquire, to secure the payment of about §340 5 and on the 14th day of the same month Morse also mortgaged the property to John Burlew, (the husband of Mrs. Cooper,) to secure the payment of §210 with interest. On the 19th of July, 1832, Morse conveyed the premises in fee to John Burlew. A covenant bearing even date with the deed was entered into between Morse and Burlew, by which, after reciting that Morse was indebted to the several mortgagees in the amount secured by the three mortgages, it was agreed between the parties u for the purpose and consideration on the part of said Sidney of paying his aforesaid debts, and for the purpose and consideration on the part of said John of securing his claim aforesaid, that said Sidney should convey to said John the said mortgaged premises, and that said John should pay, satisfy and discharge the said debts of said St. John and Luquire ; and further, that if said John should within a reasonable time hereafter be enabled to sell said premises for more than sufficient to pay said debts, including his own, with interest, and any charges and expenses to which he might be, before qr at that time, subjected in relation to said premises, that said John should pay such excess to said Sidney. And said Sidney having executed a deed of said premises to said John bearing ■even date herewith in pursuance of said agreement, the said •John, in consideration of the premises and of said conveyance, hereby agrees to pay and discharge the said mortgage debts of said St. John and Luquire, and indemnify the said Sidney against the said debts secured by said mortgages, and also to deliver up his own bond which accompanies his said mortgage to said Sidney to be cancelled ; and further agrees, that if he shall be enabled in a reasonable time hereafter to sell said premises for more than a sufficient sum to pay the three aforesaid ■mortgage debts with charges and expenses which he may incur in relation to said premises, he will pay to said Sidney or his legal representatives such excess.” It was further agreed, that Burlew might take assignments of the mortgages to St. •John and Luquire for the better securing of his title ; but in that case Morse was not to he held personally responsible on the bonds which accompanied the mortgages, but Burlew was to look exclusively to the land for his security.
    Notwithstanding the deed to Burlew, Morse still continued in possession of the property until March, 1833, when he agreed to sell the .premises to Joshua Whitney, jun. for the sum of $1000—telling him that the deed was to come from Burlew. Whitney was to pay the three mortgages, and the balance of the purchase money he was to pay to Morse. Burlew thereupon, on the 25th of March, 1833, conveyed to .Whitney, and Whitney executed a bond and mortgage to Burlew. The bond recited the three mortgages, the conveyance by Morse to Burlew, and was then conditioned that Whitney should pay and satisfy the two mortgages to St. John and Luquire, so as to indemnify Burlew against his covenant to Morse, and should also pay Burlew the amount then due on his mortgage, within two years. Whitney paid the balance of the purchase money beyond the amount of the three mortgages to Morse. He also paid off the mortgage to Luquire, a'hd satisfaction was entered of record. On the 7th of August, 1833, Whitney conveyed the premises to Susan E. Whitney, the wife of the defendant, Vincent Whitney. On the 4th of September, 1833, the defendant, Vincent Whitney, purchased and" took an assignment of the mortgage to St. John. Burlew died in October, 3834, and in November, 1835, the defendant paid off the mortgage to Burlew, whose administrator received the money and acknowledged satisfaction. The plaintiffs were married about two years before this suit was commenced. The judge charged the jury that the defendant, deriving his title directly or indirectly under Burlew, was estopped from denying that title, and that the widow of Burlew was entitled to. recover dower in the premises. The defendant excepted, and the jury found a verdict for the plaintiffs. The defendant now moved for a new trial on a bill of exceptions.
    J. A. Collier, for the defendant.
    Jlí. T. Reynolds, for the plaintiffs.
   By the Court, Bronson, J.

The objection that the demand-, ant forfeited her dower by eloping from her former husband and living in adultery with the present one, is answered by the the case of Reynolds v. Reynolds, (24 Wend. 193.) There was no divorce, and Burlew did not die until after the revised statutes took effect. But there are two very good answers to this action.

Burlew, the husband, did not take an- unqualified fee in the land under the deed from Sidney S. Morse. That deed must be read in connection with the covenant or defeasance' which was executed at the same time. These two instruments arc a part of the same transaction, and constitute but one conveyance, What then was the nature of Burlew’s interest 1 According to the case of Palmer v. Gurnsey, (7 Wend. 248,) he was a mortgagee. In that case the defendant, being indebted to the plaintiff’s wife, executed to the plaintiff a deed in fee of certain lands ; and the plaintiff, by a separate instrument, after reciting the conveyance, agreed that if the land should sell for more than enough to pay off certain incumbrances, and the consideration mentioned in the deed—which was the amount of the plaintiff’s debt—and the trouble the plaintiff should be put to-, he would pay back to the defendant all the overplus. It was holden, that the two instruments together constituted a mortgage. Savage, Ch. J. said : “ it is true, there was no right of redemption of the land itself—that was to be sold; but the avails were to belong to the grantor, after paying all incumbrances and expenses.” He added, that the agreement to return the overplus money “ clearly shews that it was not the intention of the grantor to part with any more of his interest in the premises conveyed than sufficient to satisfy the mortgages, and the amount due the plaintiff.” That case goes the whole length of deciding that the conveyance now under consideration is a mortgage. Morse, being indebted in the amount of the three mortgages to.St. John, Luquire and Burlew, conveys by deed in fee to Burlew, who, by a separate instrument executed at the same time, agrees, that if he can sell the premises within a reasonable time for more than enough to satisfy the three debts and his expenses, he will pay the excess to Morse. Burlew did not, in terms, covenant that he would sell, should an opportunity present, nor did the grantee make any such stipulation in Palmer v. Gurnsey. If Burlew is to be regarded as a mortgagee, then it is quite clear that the demandant has no right to dower. Burlew did not enter under the mortgage. He executed the power to sell, by conveying the land to Joshua Whitney, junior, who has since conveyed to the wife of Vincent Whitney', the defendant. The conveyance has answered the precise end which the parties designed to accomplish by it. The three debts which the conveyance was made to secure, have all been paid off, and Morse, has got the “ excess” for which the land sold beyond the amount of the debts. Mrs. Whitney has acquired the interest Of both mortgagor and mortgagee, by virtue of her purchase under the power. Burlew never had any such seisin of the land as could entitle his widow to dower.

Although the conveyance, consisting of the deed and covenant, was not in the most usual form for making a mortgage, it had all the essential qualities of a mortgage, with the single exception that there was no express condition that the deed should become void on payment of the debts which it was made to secure. It may be that without such a condition Morse could not redeem, and then there is undoubtedly some difficulty in holding that this was a technical mortgage. In Palmer v. Gicrnsey, it was said that there was no right to redeem, and still the conveyance was held to be a mortgage. But as that doctrine is questioned by the demandant, I will assume that this was not a mortgage. What, then, was the nature of the transaction 1 It was not a case of purchase and sale. Burlew did not take the land to his own use. He was to sell and pay three specified debts, and return the surplus money to the grantor. This was a trust—valid both at the common law and under our new code. (1 R. S. 728, § 55.) Although there was no express covenant on the part of Burlew to sell, his duty to sell can easily be gathered from the agreement, and there can be no doubt that the performance of that duty would have been enforced by a court of equity. Burlew would not have been permitted to hold the land to his own use, after an opportunity presented of selling for more than enough to pay the debts. He has treated the conveyance as the creation of a trust, and the trust has been completely executed. The land has been sold, the debts paid, and the surplus money returned to the grantor. And now We have the widow of the trustee claiming dower in the trust estate. I need not refer to books to prove that a woman is not dowable of a trust estate.

I am strongly inclined to the opinion that this should be regarded as a trust, rather than a mortgage. But whether it be. the one or the other, the demandant cannot maintain her claim to dower.

There is, I think, another good answer to the action. Let us assume that the conveyance to Burlew was neither a trust nor a mortgage, but an, absolute, grant of the land to his own use. Still, he took the property subject to the two mortgages to St. John and Luquire, and consequently acquired nothing more than an equity of redemption. The mortgage to Luquire has been paid off, and may therefore be laid out of the case. But the mortgage to St. John is still a charge on the land. It has been assigned to the defendant, who is in possession, and the mortgage, as I infer from the case, is forfeited. How although a widow may have dower in an equity of redemption, she cannot, after a forfeiture, recover the land in an action at law against the mortgagee, or his assigns, in possession. (Van Duyne v. Thayre, 14 Wend. 233, and 19 id. 162.) Such rights as she has must be enforced in a court of equity.

But it is said that the St. John mortgage has been extinguished, and cannot now be set up. I will assume for the present that Mrs. Whitney, who, through several mesne conveyances, holds under the mortgagor, has purchased and taken 'an assignment of the mortgage. How will the question then stand 1 By the deed to her of August 7th, 1833, she acquired nothing more than an equity of redemption. The mortgage, as I infer, was then forfeited, and the legal estate was consequently vested in St. John,, the mortgagee. In September following, she purchased and took an assignment of the mortgage. Now assuming that there was a merger of one of the two interests thus united in the same person, which of the two interests was extinguished 1 Did the mere equity which she had previously acquired under the mortgagor swallow up the legal estate which she purchased from the mortgagee; or was the equity drowned in the legal estate ? There is much reason for saying that the equity is gone, and that the conditional fee created by the mortgage has become absolute. In this view of the case the supposed union of the two interests in the same individual proves nothing in favor of the demandant. As the mortgage was anterior to the husband’s purchase, and the title under it has novv become perfect, it is difficult to see how the demandant can recover dower either at law or in equity. (See Jackson v. Dewitt, 6 Cowen, 316 ; 4 Kent, 45, 4th ed. ; Van Duyne v. Thayre, 14 Wend. 233, and 19 id. 162, and the cases there cited.)

But it is not necessary to determine what would be the effect of a union of the two interests in the same individual, for the mortgage was not assigned to Mrs. Whitney, but to her husband, the defendant. She holds under Morse, the mortgagor, and he holds under St. John, the mortgagee. Although for many purposes husband and wife are regarded in the law as one person, there can be no doubt that they may have separate interests in same real property.

It is said that there is an estoppel in the way of the defence which has been set up. In the first view which has been taken of the case, we have seen that Burlew took either a mortgage, or a trust estate, and that he executed the power or trust by conveying the land. It is now said that the purchaser is estopped from denying that Burlew had an absolute estate in the land. If that be so, then the wife of every mortgagee or trustee who has sold lands in pursuance of his authority may recover dower in the mortgage" or trust property. The thing is preposterous.

In the other aspect of the case, Burlew was neither mortgagee nor trustee; his deed was absolute. But, as we have already seen, he purchased subject to the mortgage to St. John, and consequently acquired nothing more than an equity of redemption-. That equity he transferred through Joshua Whitney, jun., to Susan E. Whitney. What possible objection can there be against allowing her to show what was the true character of the transaction 1 She is not setting up a paramount title in a stranger. She does not deny that Burlew had a title or interest of some sort to convey; but only proposes to show what particular interest he had, and transmitted to her. We have gone very far—too far, I fear, in some cases—in allowing estoppels in the action of dower; but I am not aware of any case which will answer the demandant’s purpose. If the action was against Mrs. Whitney, who holds under Burlew, I should not think her concluded from showing what particular interest Burlew had to convey. But the action is not against her, nor against any one claiming under her. The defendant, as we have seen, holds under St. John, and clearly he is not estopped to set up his legal title.

New trial granted. 
      
      
         See Cowen & Hills Notes to Phil. Ev. 1421, 2, and the cases there cited,
     
      
       See Germond v. Jones, (2 Hill, 569, 573 ;) Powell v. The Monson and Brim, field Manuf. Co: (3 Mason's Rep. 347.)
     