Carll v. Butman

• Decision Date: 01 June 1830
• Citation: 7 Me. 102
• Parties: CARLL v. BUTMAN
• Court: Maine Supreme Court

7 Me. 102

CARLL v. BUTMAN

Supreme Judicial Court of Maine, Penobscot

June, 1830

THIS was an action of dower; in which the wife of Stephen Carll from whom she had been divorced for adultery committed by him, sued for her dower in one acre of land.

It appeared that in 1813 one Ephraim Holmes mortgaged a tract of land, including the acre in question, to John Coffin Jones and in 1814 conveyed the acre in fee, with general warranty to Carll. In 1817, the last payment from Holmes having become due, Jones brought a writ of entry on his mortgage against one Prescott as tenant in possession; and having obtained judgment, the writ of habere facias was put into the hands of Carll, who was a deputy sheriff, for service; who made return in 1818 that he had put Jones's attorney into possession of the premises, having removed Prescott and his effects therefrom. In 1821 Carll conveyed the acre, by deed of release and quitclaim, to the tenant; who, in 1822, obtained a similar deed of conveyance from Jones, the mortgagee.

The demandant was lawfully married to Carll in 1819; and it appeared that he was in actual possession of the acre at the time of the commencement of Jones's action against Prescott, and so continued till the latter part of the year 1821.

Upon this evidence a nonsuit was entered by Parris J. subject to the opinion of the court upon the question whether the demandant was entitled to dower.

Williamson for the demandant, contended that the entry of Jones did not operate against Carll; because it was only into the portion occupied by Prescott, against whom alone he had brought his action. Groton v. Boxboro, 6 Mass. 53; 4 Dane's Abr. 191, sec. 24; Varnum v. Abbot, 12 Mass. 474; Fosdick v. Gooding, 1 Greenl. 50.

He further argued that the tenant could not claim under the mortgage, the release from Jones to him having extinguished it. Barker v. Barker, 17 Mass. 554; Gibson v. Crehore, 5 Pick. 149; Bolton v. Ballard, 13 Mass. 227; Snow v. Stearns, 15 Mass. 280; Collins v. Torrey, 7 Johns. 277.

Brown, for the tenant, cited Holbrook v. Finney, 4 Mass. 568; Bird v. Gardiner, 10 Mass. 364.

OPINION

WESTON, J.

In Bird v. Gardiner, cited by the counsel for the tenant, Sewall J. states that it is well settled that a wife is not dowable of an equity of redemption; but he there means, as is very manifest, as against the mortgagee or his assigns, whose title commenced before the seisin of the husband. That a widow may be endowed, notwithstanding an outstanding mortgage, under which the tenant does not claim although such mortgage, so long as it remained unextinguished, would defeat her claim in favor of those holding under it, has been repeatedly recognized in Massachusetts ; and in this State in Smith v. Eustis & al. (ante p. 41. ) The mortgage in evidence in the present case was made before the seisin of the husband, and his title was derived from the mortgagor. If therefore the tenant holds under the mortgagee, he has a good defence against the demandant's claim of dower. Prior to this action, the mortgagee for a valuable consideration released to the tenant; but as the latter had previously taken a conveyance from the husband of his interest, and thus become the owner of the equity of redemption in the land demanded, it is insisted that the release to him by the mortgagee operated not as an assignment, but as an extinguishment, of the mortgage. And the cases of Bolton v. Ballard and of Snow v. Stearns are cited in support of this position. But the former of these cases was decided upon the ground that the mortgage was paid with the husband's money, a part of the consideration of the purchase from him being by express agreement reserved and applied to this purpose. And in the latter case, the sum due on the mortgage was paid, not by the tenant, but by the administrator of the grantor of the husband. Here the sum paid to the mortgagee, was the tenant's own money. It was not paid with a view to extinguish the mortgage, or to pay the debt due thereon, but to purchase the land, after the right to redeem was understood to be foreclosed. To regard this purchase as an extinguishment of the mortgage, would be to give a...