#### Lilley Bird *versus*Henry Gardner.

A purchases of B his right m lands previously mortgaged by B to C; A further mortgages the same lands to C, and afterwards releases to him his equity of redemption; — it was holden, that A was never seised of an estate in those lands, of which, by law, his wife was dowable.

This was a writ of dotoer, and came before the Court upon the following facts, agreed by the parties: “On the 24th of March, 1801, *John Moies*was seised in fee of the premises described in the writ, and on that day, for a valuable consideration, by his deed, duly acknowledged and recorded, mortgaged the same in fee to *John Hawes,*to secure to him the payment of 350 dollars, and interest, in one year. On the 30th of April, 1811, said sum remaining unpaid, and the said mortgage not being discharged nor foreclosed, said *Halves,*for a valuable consideration, by deed acknowledged and recorded, assigned the premises with the said mortgage to *Gardner,*the tenant in this action. The said *Moies*being in actual possession of the premises after the execution, acknowledging and recording of the aforesaid mortgage, by deed duly acknowledged and recorded, for a valuable consideration, conveyed his right and equity of redemption to *Benjamin Bird,*the husband of the demandant, who entered, and was in actual possession of, the premises during the coverture of the demandant. After-wards, on the 24th of September, 1810, the said *Benjamin,*being in possession of the premises, for a valuable consideration, conveyed the same to the tenant, in fee and in mortgage, to secure to him *363payment of 1000 dollars, in one year; and afterwards, for a valuable consideration, by deed, released to the tenant all his right and title in and to the premises; and the tenant thereupon entered, * and lias ever since been in possession. The [ * 365 ] tenant admits that, more than one month before the commencement of this action, the said *Lilley*demanded of him to set off her dower in the premises, which he refused to do.”

If, upon these facts, the Court should be of opinion that the demandant can maintain her action, the tenant agreed to be defaulted, and that judgment should be rendered for the demandant to recover her dower in the premises, with such damages as should be assessed by a referee to be agreed on, or by a jury, with costs; otherwise the demandant was to become nonsuit, and the tenant recover his costs.

*Richardson,*for the demandant,

confessed that, when he commenced the action, he was ignorant of the mortgage which existed previous to the title acquired by the demandant’s husband; and he was doubtful whether the demandant could recover her dower at law. But in *England,*courts of equity have assigned dower in such cases, on the dowager’s giving security to keep down one third of the interest arising on the mortgage. (1)

*Chickering,*for the tenant,

relied on the want of seisin in the demandant’s husband, and he cited the authorities in the margin. (2)

(1)

*2 p. Will.*632.

(2)

4 *Mass. Rep.*566, *Holbrook*vs. *Finney.*--8 *Mass. Rep.*491, *Popkin*vs. *Bumstead.*— 7 *Mass. Rep.*253, *Eldrige*vs. *Forrester &*Al.— 1 *Bro. Ch. Rep.*326, *Dixo*vs. *Seville.*

Sewall, J.,

delivered the opinion of the Court.

The demandant’s husband, *Benjamin Bird,*in his lifetime pur chased the premises, of which dower is demanded from *John Moies.*They were then encumbered with a mortgage, which *Moies*had made to *John Hawes,*and which he had assigned to *Gardner,*the tenant. After *Bird*became the owner, subject to that mortgage, he conveyed the same premises in mortgage to the tenant. The first mortgage remains unpaid; and the tenant has therefore the legal title, as it was conveyed by *Moies*before *Bird*had any interest in the premises. It is upon the strength of that title, by *Hawes’s*assignment vested in the tenant, that he is enabled to resist the demand of dower.

The title of *Bird,*the demandant’s husband, was a seisin during the coverture, whereof she was entitled to dower against all othei persons than *Moies’s*mortgagee and his assigns. ' But against them, until the redemption of the mortgage, * the [ * 366 ] demandant’s husband had nothing but an equity of re*364demption — no seisin of any estate of which his wife was dowable. The tenant, therefore, as assignee of the mortgage before the demandant’s husband had any thing in the premises, must prevail upon this title. It is well settled that a wife is not dowable of an equity of redemption; and, as a purchaser of the premises, subject' to *Moies’s*mortgage, *Bird*had only an equity of redemption.

The demandant’s right of dower might be maintained against the, second mortgage, that which her husband in his lifetime made to the tenant, if his title under the first mortgage were removed; and it may be, that in a court of chancery, having a general jurisdiction in matters of equity, the demandant might have relief, and her demand of dower might be enforced by some specific remedy to compel the representative of the mortgagor to redeem. (3) But whether this can be done in this Court, with the very limited jurisdiction indulged to it which has any resemblance to the powers of a court of chancery, is at least questionable.

If there is any remedy in this jurisdiction, it must be in the form of a bill in equity; which, it may be, the demandant and the repiesentatives of *Benjamin Bird*are competent to maintain for the redemption of the first mortgage. The representatives of *Bird*are competent to redeem the two mortgages; and the claim of dower by the widow might be adjusted by some equitable arrangement, that would do justice between her and the creditors, or heirs at law of the husband. But she has, at present, no remedy at law against the demandant. (a)

*Demandant nonsuit*

ADDITIONAL NOTE.

[See *Van Duyne*vs. Thayre, 14 *Wend.*233. —19 *Wend.*162.— *Cooper vs.*Whitney, 3 *Hill,*95. — *Carll*vs. *Butman, 7 Greenl.*102. — *Smith*vs. *Eustis, 7 Greenl.*41. — *Cass*vs. *Martin,*6 *N. H.*25. — *Reed*vs. *Shepley,*6 *Verm*602.

*Stille*vs. *Carroll,*12 *Pet.*201. — *Kirby*vs. Dalton, 1 *Dev. Eg.*195. — *M’Arthur*vs. *Porter,*1 *Ohio,*102.— *Smiley*vs. *Wright,*2 *Ohio,*507.

A testator devised his real estate, which he had mortgaged, to his son, who died, leaving a widow, and the executor sold the equity of redemption,purchased it him self, and redeemed the mortgage, paying one half of it with assets in his hands as executor, as directed in the will, and the other half with his own money. The heirs and widow of the son elected to affirm the sale. Held, the widow was entitled, on account of her right of dower, to the interest during her life on one third of the sum for which the equity was sold, and on one third of the amount paid out of the testator’s estate towards extinguishing the mortgage. — *Jennison*vs. *Hapgood,*14 *Pick.*345.

A party seised of a remainder expectant upon a life estate mortgaged in fee and died. The widow brings an action for dower against the mortgagee. Held, the defendant was estopped to deny the husband’s seisin. — *Nason*vs. *Allen,*6 *Greenl.*243.

A, upon receiving a conveyance of land from B, mortgaged it back to secure notes

*365given for the price. B sold and delivered the notes and mortgage to C, who, some years afterwards, the mortgage never having been recorded or transferred in writing delivered the securities to A, taking a note and mortgage to himself for the balance then due, in which mortgage the wife of A did not join. Held, upon A’s death, she was entitled to dower in the land. — *Hobbs*vs. Harvey, 4 *Shepl.*80. — F. H.]

(3)

 1 *Ch. Rep.*186. — *Hard.*469, 512.

(a)

**[See note to *Sheaf*vs. *O’Neil,*9 *Mass. Rep.*p. 13. — Ed.]