45 Me. 493 (Me. 1858), Moore v. Rollins

Citation:45 Me. 493
Opinion Judge:APPLETON, J.
Party Name:SARAH G. MOORE v. ALFRED ROLLINS.
Attorney:Gould & Robinson, for demandant. L. H. Howes, for tenant.
Judge Panel:TENNEY, C. J., RICE, CUTTING, MAY, and DAVIS, J. J., concurred.
Court:Supreme Judicial Court of Maine
 
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Page 493

45 Me. 493 (Me. 1858)

SARAH G. MOORE

v.

ALFRED ROLLINS.

Supreme Judicial Court of Maine.

1858

A widow is dowable of a lime quarry which was owned by her husband, and had been opened and wrought during her coverture.

Where one has received a deed of an estate and given back a mortgage of the same, to secure the payment of the purchase money, if the deeds are of the same date, have the same attesting witnesses, and are acknowledged before the same magistrate, and the notes secured are of the same date with the mortgage, in the absence of all proof to the contrary, the deeds will be regarded as one and the same transaction. And, as against the mortgagee or his assignee, the widow of the mortgager will be dowable only of an equity of redemption.

And the circumstance that the mortgager included in his deed other land than that conveyed to him by the mortgagee, does not change or affect the rights of the parties, in her suit for dower.

DOWER is sued for by the demandant in a lime-rock quarry, of the whole of which she alleges her late husband, Abel Moore, was seized during her coverture with him.

The action was tried at January term, 1857, APPLETON, J., presiding. Verdict for plaintiff for dower, in one undivided half-part of the premises. The case is presented on EXCEPTIONS taken by each party. The evidence was also reported on motion for new trial.

The facts necessary to an understanding of the case, and questions of law, which were argued, appear in the opinion of the Court.

Gould & Robinson, for demandant.

L. H. Howes, for tenant.

OPINION

APPLETON, J.

Each party alleges exceptions to the rulings of the presiding Judge at Nisi Prius.

The defendant is dissatisfied, because the jury were instructed that the widow was entitled to dower in a lime quarry, if the same had been opened and wrought during coverture.

The law is well settled, in England, that a widow is dowable

Page 494

of her husband's mines which had been opened and wrought during coverture, and in which he had an estate of inheritance. Stoughton v. Leigh, 1 Taunton 412. The Court of Massachusetts, in Billings v. Taylor, 10 Pick. 460, which was the case of a slate quarry, say " that it would be too narrow a construction to say that no part of this quarry was opened, except that portion which had been actually dug; but it must be...

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