DEEDS — MORTGAGES—DOWER.

[Fairfield Circuit Court,

January Term, 1887.]

Albaugh, Foliett and Jenner, JJ.

#### Mary Ruffner v. John T. Evans.

1. Widow of Grantee, as Against the Mortgagee is not Entitled to Dower, When.

A conveyed a quarter section of land to B by deed of general warranty. B gave a mortgage of same date, on said land, to his grantor, to secure the delivery of wheat and hogs, at a stipulated price, in three annual installments: *Held,*that the coincidence in date of deed and mortgage justifies the presumption that the deed and mortgage were a part of the same transaction, and that the mortgage was given to secure unpaid purchase-money, and as against the mortgagee, the widow of the grantee is not entitled to dower.

2. Wife not a Necessary Party to Decree of Foreclosure, When.

The wife of said grantee, not having signed said mortgage, was not a necessary party to the decree of ioreclosure.

Appear from a decree of the Court of Common Pleas of Fairfield county.

The plaintiff, Mary Ruffner, filed a petition for dower in a quarter section of land, in Fairfield county. She was married to one Benjamin Ruffner, February 2, 1837, who died December 8, 1876. April 2, 1841, Thomas Trimble was the owner in fee of the land described in plaintiff’s petition, and on that day he conveyed said land, by deed of general warranty, to said Benjamin Ruffner, for the consideration of $3,800, stated in the deed:

On the same day said Ruffner gave to said grantor a mortgage on the premises, to secure the delivery to the grantor of 500 bushels of wheat at 75 cents per bushel, and 100 head of fat hogs, to average 200 pounds and upward, at $3.50 per cwt. The wheat and hogs were to be delivered at a time stated in 1842 and the same quantity of wheat and number of hogs to be delivered in 1843 and 1844. The aggregate value of the wheat and hogs was about $3,000.

The same persons witnessed both deed and mortgage and the ackowledgment of both instruments was taken before the samé officer. The plaintiff, then the wife of Ruffner, did not sign the mortgage.

The conditions of the mortgage were not complied with and a decree of foreclosure was duly entered and the premises sold to satisfy the same. The sheriff sojd the pré'mises to said Thomas Trimble to whom a deed was delivered September 1, 1848.

The plaintiff was not a party to said decree.

After successive transfers the present defendant became the owner of said lands.

Jenner, J.

Is Mary Ruffner, the plaintiff, entitled to dower in the quarter section of land described in her petition? This is the question presented in the issue.

She avers, that her husband, Benjamin Ruffner, in 1841, was sezied of an estate of inheritance in said premises, and that since his death she duly demanded an assignment of her dower, but defendant has refused compliance with said demand.

*369The defendant admits that demand was duly made by plaintiff, but denies that her husband was seized of an estate of inheritance in said quarter-section of land, or that she is entitled to a dower therein.

There was a contention on the trial, as to whether the plaintiff or defendant, had the burden of proof under this issue. We think it devolved upon the plain-tiff to establish the fact that her husband was seized of an estate of inheritance, as averred in her petition. Her right to dower depended upon establishing that fact.

The plaintiff offered in evidence the deed from Thomas Trimble to her husband, dated April 2, 1841, which contained the usual covenants of a warranty, and she then rested her case. This *prima*facie, established the fact, that her husband was seized of an estate of inheritance in the real estate described in said deed.

Thereupon the defendant offered the mortgage from the husband of-plaintiff to said Trimble, dated said 2d day of April,-1841, and also the decree of tore-closure of said mortgage, and the sale and conveyance of the premises in pursuance of the order of court. The plaintiff had not signed the mortgage and was not a party to said decree.

Do said facts justify the conclusion, that Benjamin Ruffner was seized of an estate of inheritance in said premises, so as to entitle his widow to dower therein?

In the case of Holbrook v. Finney, 4 Mass., 565, Hannah Holbrook, as the widow of Egra Finney, demanded dower on the seizin of her husband, who on the same day that he and his three brothers secured the conveyance from their father, mortgaged the lands to their father, and within the- year the husband of Hannah died. The conditions of the mortgage were broken, and the land sold under a deree of foreclosure. Chief Justice Parsons, in this case says: "The deed and mortgage are to be considered as parts of the same contract, and as taking effect at the same instant!” And it is held that the demandant, "cannot support her claim, as her husband was never so seized so as to entitle her to dower.”

The doctrine announced in Holbrook v. Finney, that a deed and mortgage executed on the same day will justify the inference that they were executed at the same time, and were parts of one and the same transaction, ■ is sutained by Gilliam v. Moore, 4 Leigh, 30; Cunningham v. Knight, 1 Barb., 399. In the last named case, it is said that "the deed and mortgage being acknowledged and recorded at the same time, the presumption arises that they were simultaneous acts and that the latter was given for the purchase-money, though given to another party. Hunt v. Livermore, 5 Pick., 395; and Kittle v. Van Dyck, 1 Sanford’s Ch., 76, are in point.

The inferences drawn from the facts in the cases here referred to, are, no doubt, fully in accord with the experience of lawyers engaged in a general practice.

We conclude, as the deed from Thomas Trimble to Benjamin Ruffner, and the mortgage from said grantee to his grantor, describe the same premises, bear the same date, and were acknowledged before the same officer, the- presumption arises that the deed and mortgage were part of the same transaction, and that the mortgage was given to secure unpaid purchase-money.

It ma}r be regarded as a principle of American law, that a widow is not entitled to dower against a mortgage given to the vendor for purchase-money, so uniform has been the adjudications on that question.

The fact being established, that this was a mortgage to secure purchase-money, it follows, that the plaintiff was not a necessary party to the proceedings of foreclosure. Welch v. Buckins, 9 O. S., 331; Folsom v. Rhodes, 22 O. S., 435.

*370John G. Reeves, for plaintiff.

Charles Kibler, for defendant.

The husband of plaintiff. was not so seized of said lands as to entitle her to dower therein as against the purchaser under the foreclosure proceedings, or his grantee.

Albaugh and Follett, JJ., concurred.