
    Harriet Brown vs. John Duncan.
    The mere transitory seizen of a husband of land for the purpose of re-conveying by way of mortgage, will not entitle the "wife to dower; and if the deed of conveyance and mortgage are simultaneous, the widow can only be entitled to dower subject to the mortgage, or to her dower out of the surplus over and above that incumbrance.
    The value of the land at the time of alienation must be taken as the basis of calculation.
    The Commissioners ought to assign the dower in the land itself, and not assess a sum of money in lieu thereof; but by the act •of Assembly, they are made the judges of the question, and if they assess a sum of money, unless it-is apparent that they have committed some error, their decision must be final.
    The Court refused to set aside their return where they assessed a sum of money, stating- that the dower could not be set off by metes and bounds without great injury to all the parties concerned.
    It is doubtful if the Court can enquire, into the reasons of their decision,
    They are required to go on the premises to enable them the better to judge of the matter.
    This was a suit for the recovery of dower in a tract of marsh land, lying at the upper end of Bro.ad-street, in the City of Charlestorqpurchasedin Avgust, 1817, by Joshua Brown from the City Council of Charleston, and mortgaged by him to them, for the payment of a large proportion of the purchase money. The Council omitted to record their mortgage, and in April, 1818, Brown gave a second mortgage to Jacob R. Yalk, which was recorded on the 5th of May following, in the fall of 1818, Brown failed and assigned all his property. John Duncan filed his Bill in Equity against Jacob R. Yalk, Patrick Duncan, Joshua Brown, Myer Moses, and the assignees of Brown. All the defendants answered the Bill. He claimed to set up a parol agreement by Brown, to mortgage the property then called Brown’s Mill Establishment to him in preference to the mortgage to Yalk, on the ground that Yalk had notice of the agreement. The City Council also filed their bill against Yalk to have their mortgage preferred to his, on the ground of notice of it to him. Yalk an-severed and denied notice. The late Circuit and Appeal Courts of Equity took up both bills and answers as one case, and decreed on them. The bills, answers, and decrees of the Chancellor and Appeal Court were produced in. evidence. The decree of the Appeal Court, so far as effects the present case, ordered the property to be sold, and the first proceeds applied to pay Talk’s mortgage, and the balance to the Council, to the extent of their debt. The property was sold subject, as appeared by the evidence of the Commissioner in Equity, to a contingent claim of dower, and after discharging the mortgage of Valk, a balance of nine thousand five hundred and seventy-two dollars in the bond of the purchaser, John Duncan, was paid over to the City Council, who on the application of Brown, then discharged him from the balance of the debt. On these facts, the case was submitted to the Court and Jury. The counsel for the demandant contended that she was entitled to her dower in the premises, and the counsel for the defendant, that she was not entitled to her dower in an Equity of Redemption, which was all that was in Brown under his mortgage to the City Council. The arguments had closed, and the Court was charging the Jury, when the counsel for the demandant stated that the demandant considered the purchase from, and the mortgage to the City Council, as two distinct transactions, and called the attention of the Court to the date of the conveyance of the 1st, and the date of the mortgage of the 13 th, and that, therefore, she was entitled •to her dower, in the whole lands. The counsel for the defendant insisted that until that moment, both the purchase ánd mortgage had been treated by all parties as one transaction, and that evidence could be immediately produced to prove this allegation.
    Eichaecson, J. who tried the case, charged the Jury that the widow was entitled to dower in whatever re-maincd after payment of the mortgage. What-that would amount to was not then a question for adjudication; but that the only question for them was, whether the husband had been seized. And under the case made by the pleading without prejudice to the rights of either party, or to the evidence that might be produced as to the extent of the dower, the Court directed the Jury to find the demandant entitled to dower in the lands.
    The defendant now moved for a new trial on the grounds:—
    1st. That a wife was not entitled to (lower in an Equity of Redemption.
    2nd. That if the plaintiff in this' case was entitled to her dower in the Equity of Redemption, it must be subject to the mortgage, and the Jury on the pleadings ought to have been directed so to find.
    3rd. That after the evidence was closed on both sides, and the case had gone to the Court and Jury, a new point was made by the plaintiff, which was supposed to have been conceded to the defendant, and which he was furnished with evidence to disprove.
    Before these points were argued in the Court of Appeals, the Commissioners made their return, which was confirmed by the Court, and the additional grounds of appeal were taken, viz:
    1st. That the Commissioners should have set off a part of the land for the demandant’s dower, by metes and hounds, and not have assessed money in lieu of land.
    2nd. That in the assessment of the value of the premises in question, the sum paid by the defendant to the City Council, to wit: $8000 and upwards on the original purchase money of the premises, should have been deducted from the sum of $30,000 fixed by the Commissioners as the value; and that a proportional abatement in the assessment of dower should have been made.
    
      King, for tlie motion.
    By the common law the mortgagee stands in the relation of trustee, and therefore she is not endowable of an equity unless she redeem. 2 Cruise. Tit. Mort Chap. 15; 1 Bro. C. C. 326; 1 Cruise. 466, Tit. Trust. 12, ch. 2, p. 12. Attorney-General vs. Scott, Cases Tern. Talbot.
    In the case of Bogy vs. Rutledge, 1 Bay. — the rule laid down is, that the wife is not endowable in lands purchased by the husband, and at the same time mortgaged for the purchase money, unless it is redeemed.— Under this rule she is only entitled to dower in what remains after paying the mortgage to the Council. The Court ought to eontiwf the Commissioners in the capricious assessment of money in lieu of 1 and. It is apparent that it will operate unequally and unjustly in this case. The. whole fee simple will notin all probability sell for more than the sum assessed, perhaps not so much. The objection that a partition of the mill pond would be destructive of the value of the whole, will apply even with more force to the defendant, and it does not lie with the demandant to say, that she will not accept a part of the soil because it will injure the defendant.
    Petigru, Attorney-General contra.
    Dower is favored in law.. In the case of Bogy vs. Rutledge, the mortgage was executed at a time when the mortgagee was by law the legal owner of the estate, and there the deeds were contemporaneous.
    So in the ease of Crafts: There the conveyance and mortgage was before the marriage, and the husband was not seized except sub modo during the coverture, and therefore the wife could not be endowed,
    The cases cited are instances in which the husband was only seized in the instant, and yet the wife was entitled to dower. 2 Bacon, 372; Cro. Eiiz. 802; Cro. Car. 190. The rule inlaw and equity is the same. In equity the seller has a lien for the purchase money; büt nó case can be found in which the wife has in such case been deprived bf dower.
    Dower is so much favored, that the wife of a mortgagor before marriage, is entitled to dower against all but the mortgagee. 1 Day, 559, Fish vs. Fish. So although the husband was never seized of any thing except the equity of redemption, as when the husband inherited the equity. 15Mass..278, Snow vs. Tuttle; 13th -Mass. 227, Bottom vs. Ballard. 15 Johnson, 319; 1 Johns. C. C. 45, Tavel vs. Tavel; 5th do. 452, Titus vs. Nelson. Harrington vs. Hitchcock, 6 Johnson, 290'. Admitting'that the sale in this case was made under an. agreement to mortgage; the question then is, whether the wife is barred by an agreement to mortgage, and there , is no case, book, or record in which a precedent for it can be found.— Collins vs. Terry, 7 Johns, 217. According 'to the rule laid down in this case, the wife was entitled' to be endowed of the value at the time of alienation. Duncan gave $4!,000, and according to that rule she was entitled to be endowed of the third of that sum. The act confines her dower to the value at the time of alienation, and it must work both ways, whether the value be improved or diminished. 2 Const. Rep. 254, Russell vs. Gee; Acts of ass. 1824.
    
      King, in reply.
    It will be found by reference to the cases quoted, that none of the persons resisting the claim of dower claimed under the mortghgee, all of them seem to save his rights. Defendant. claims Under the City Council the mortgagee.
   Curia per

Nott, J.

This is an application to this Court to reverse an order of the Court below affirming the return of Commissioners assessing the sum of five thousand dollars for the dower of the demandant in the lands in question. The principal ground relied on by the appellant, is, that the deed from the City Council to Jonathan Brown, and the mortgage by him to the City Council, were simultaneous acts, and, therefore the momentary seizin of Brown merely for the purpose of reconveying the same back by way of mortgage in order to secure the purchase money was not such a seizin as would entitle his widow to dower, and that although the dates of the two deeds are different, yet that the delivery of both was contemporaneous and that the advantage taken after the testimony was closed, of the difference in the dates, was a surprise upon the party and an objection which the defendant could have removed, if he had bee’ri apprised that such a ground would have been relied on. I consider it a very well settled rule, both in Law and Equity, that a mere transitory seizin of a husband of a tract of land for the purpose of reconveying by way of Mortgage, would not at common law entitle the wife to dower. A mortgage at common law was a conveyance of land subject to defeasance upon the payment of the money which it was intended to secure, and as the fee ves - ted in the mortgagee, there was nothing left in the husband of which the wife could be endowed. It is, however, otherwise in this State.' The mortgagor retains the legal estate, and the mortgage is only considered as a pledge for the security of the money. But it was held in the case of Mrs. Crafts vs. the Ex’ors of Crafts, 2nd M‘Cord, 54, that although the husband still retained the legal estate, yet that the mortgagee having obtained a vested lien before marriage, his security could not be varied or diminished by any after act of the mortgagor, and that although the wife was entitled to dower, it must be subject to the prior incumbrance. I think that the same principle will apply in this case. If the two deeds were simultaneous, the widow can only be entitled to dower subject to the mortgage to the City Council, or of the surplus over and above that incumbrance. If, therefore, tbe Court could see that the defendant had sustained any injury, or rather, if we did not see that no injustice has been done by the sum assessed, a new trial might, perhaps, have been granted on the ground of surprise. But it will be seen by looking through the whole case, that the amount ultimately found due to the City Council was about eight thousand dollars. That the land was sold to the defendant for forty thousand dollars; so that the sum of which the widow was entitled to be endowed, was thirty two thousand dollars. The act of the Legislature of 1824, declares that the value of the land at the time of alienation shall be taken as the basis of calculation. The sum of forty thousand dollars was not only the sum for which the land was sold, but it was sold subject to the claim of dower, and that was the sum at which it was valued by the commissioners by whom the dower was assessed. But they considered the property as having deteriorated in value, so that at the death of Brown, it was worth only thirty thousand dollars, and they took that sum as the predicate of their assessment. In that respect the Commissioners did'wrong, as the act expressly requires that the dower shall be assessed according to the value of the land at the time of alienation, and not at the time of the death of the husband; and although that rule may perhaps, sometimes operate oppressively, yet I do not know that as a general rule, a better one could be adopted. But whether correct or not, it is one established by the Legislature, and must, therefore, be the rule of decision for this Court. The sum, therefore, out of -which the dower has been assessed is less than the value of the land at-the time of alienation, after deducting the sum due the City Council. it is less than the amount to which the widow would be entitled upon the principle contended for by the defendant himself. Admitting, therefore, that the fads exist on which the defendant i’elies, they furnish no ground for a new trial on his part. Another ground relied on is that the Commissioners ought to have assigned the dower in the land itself and were not authorized to assess a sum of money in lieu thereof, without the consent of the defendant. It is apparent that injustice must sometimes be done by this method of proceeding. I recollect a case where the sum raised by the sale of thp whole tract of land in fee simple was not sufficient to satisfy the amount assessed for the dower. But the act is express on the subject. The Commissioners -are made the judges of the question, and unless it is apparent that they have committed some error, their decision must be final and conclusive. But there does not appear to be any error in this case. The Commissioners have returned that “ on consideration of the state of the premises, we are of opinion that the de-mandant’s dower cannot be set off by metes and bounds, without great injury to- all the parties concerned.” It is, at least, doubtful whether the Court can enquire into the reasons on which these opinions are founded. They are required to go on the premises to enable them the better to judge of the matter from their own view, and even if we are authorized to reverse their proceedings, I do not discover any evidence which made it the duty of the Commissioners to come to a different conclusion. I am of the opinion, therefore, that the motion ought to be refused. ' New trial refused,  