Fitcher v. Griffiths

• Decision Date: 25 November 1913
• Parties: FITCHER v. GRIFFITHS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 174

103 N.E. 471

FITCHER v. GRIFFITHS et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 25, 1913

COUNSEL

J. W Cummings and C. R. Cummings, both of Fall River, for appellant.

L Elmer Wood, of Fall River, for appellees.

OPINION

RUGG C.J.

This is a suit to enjoin the foreclosure of a mortgage given in 1898 by the defendant Ezekiel Fitcher, in which his wife, the plaintiff, joined releasing her rights. The note secured by this mortgage, originally for $8,500, had been reduced from time to time so that in 1912, when it was assigned to the defendant Griffiths, $1,300 was due upon it. The consideration for this assignment was furnished by the defendant Mills at the request of the defendant Fitcher's attorney, Griffiths having no actual interest in the transaction. Since the filing of this bill the mortgage has been assigned to the defendant Mills. In 1911 a decree was entered in the probate court to the effect that the plaintiff was living apart from her husband for a justifiable cause, and ordering him to pay her a weekly allowance. It is the intention of the defendant Fitcher to have an actual salemade by foreclosure of the property in question (which is the home where the plaintiff and three of the children of herself and the defendant Fitcher reside) and that thus title may be transferred without further release of dower by the plaintiff. The defendant Fitcher has property of considerable value other than the real estate here in question. The plaintiff is able only through the assistance of friends to pay whatever may be due upon the mortgage.

It is plain that a wife may maintain a bill to redeem from a mortgage real estate in which she has an inchoate right of dower. She has a right to pay the debt and free the estate from the mortgage lien. Davis v. Wetherell, 13 Allen, 60, 90 Am. Dec. 177; Lamb v. Montague, 112 Mass. 352. The reason upon which these decisions rest still obtains, notwithstanding the provisions of St. 1900, c. 450, § 5, now R. L., c. 132, § 1, to the effect that the dower of a widow shall be deemed to be waived unless she files an election to claim it in the registry of probate within a limited time. See Downey v. King, 201 Mass. 59, 87 N.E. 468.

An inchoate right of dower is a kind of property with incidents sui generis. It is (as was said by Chief Justice Parker in Bullard v. Briggs, 7 Pick. 533, at page 538 ) 'a valuable interest, which is frequently the subject of contract and bargain. * * * It is more than a possibility, and may well be denominated a contingent interest.' It has also been referred to as 'a vested right of value, dependent on the contingency of survivorship' (Mason v. Mason, 140 Mass. 63, 3 N.E. 19), though the strict accuracy of calling it 'vested' has been doubted in Flynn v. Flynn, 171 Mass. 312, 50 N.E. 650, 42 L. R. A. 98, 68 Am. St. Rep. 427. But whatever its precise technical description, it is an incumbrance upon land (Shearer v. Ranger, 22 Pick. 447), its release is a good consideration for a promise ( Holmes v. Winchester, 133 Mass. 140), and it is protected by the courts during coverture (Burns v. Lynde, 6 Allen, 305). Therefore, where a wife releases her dower right by joining in a mortgage to secure a debt of ber husband, she stands in a position analogous to a surety for his debt. A wife who has mortgaged her separate estate to secure her husband's debts is entitled to exoneration out of her husband's estate. The release of a dower right for the same end stands on the same basis.

It is familiar law that when a surety pays a debt of his principal he is entitled to be subrogated to the benefit of the securities deposited by the debtor with the creditor. This rule applies to a wife who has become surety for her husband as well as to others. Savage v. Winchester, 15 Gray, 453; Browne v. Bixby, 190 Mass. 69, 76 N.E. 454, 5 Ann. Cas. 642. There is no distinction in reason between the mortgage by a wife of her separate property to secure her husband's debt and her release of her inchoate right of dower for the same purpose. In each case she parts with a valuable property interest for the benefit of his creditor. The same degree of relief should be afforded her in each case.

Although no action at law can be maintained between husband and wife their conflicting rights touching property may be adjusted in equity. Lombard v. Morse, 155 Mass. 136, 140, 29 N.E. 205, 14 L. R. A. 273; Frankel v. Frankel, 173 Mass. 214, 53 N.E. 398, 73 Am. St. Rep. 266; Patterson v. Patterson, 197 Mass. 112, 117, 83 N.E. 364; Woodard v. Woodard, 216 Mass. 1, 102 N.E. 921. Therefore in equity the plaintiff may secure enforcement of her rights by subrogation if she pays the indebtedness of her husband to the defendant Mills as the holder of the note and mortgage. Mills cannot be compelled to assign his mortgage. Kerse v. Miller, 169 Mass. 44, 48, 47 N.E. 504. He...