Thompson v. Boyd

Carpenter, J.,

delivered the opinion of the court.

We have not been furnished with a copy of the will of James Thompson, but, if I rightly comprehended the statements of counsel in regard to the devise to his two sons, I suppose they took a fee simple in the premises subject to the Shields mortgage, and charged with its payment. The doubts suggested in the preamble of the act empowering the executors to sell, were but the suggestions of those who procured that act, and are not entitled to any special consideration. The conveyance or release by William to Robert vested in the latter the whole estate subject to the encumbrance. It will be assumed that Robert was seized, during coverture, of an estate in fee simple subject to the mortgage, and that the wife was dowable in the premises, unless barred by the special matter set up by the tenant.

Since the case of Montgomery v. Bruere, it has been considered as settled law in this state, that a widow is dowable of an equity of redemption, the mortgagor being considered as the legal owner, except as against the mortgagee, and those claiming under him, and the mere assignee of the husband by conveyance after marriage is concluded from denying this seisin. But it is otherwise in regard to the mortgagee. As against him, or those claiming under him, the law is equally *549 well settled that the mortgagor is not so seized as that the widow, where the mortgage was before coverture, can claim dower. The wife’s dower must yield to the superior title of the mortgagee, for (says Chancellor Kent), as against the title under the mortgage, the widow has no right of dower, and the equity of redemption is entirely subordinate tc that title. 4 Kent 45 (5th ed.) As against the mortgagee there is no seisin, which seems an answer to the technical objection to the form of the plea, though that objection, in this case, is excluded by the terms of the consent upon which the verdict was taken below.

The mortgagee holding, as against the mortgagor, the legal title, subject only to the condition or equity of redemption, may unite that equitable interest to his legal title, either by foreclosure or by the voluntary release or conveyance of the mortgagor. Such union of the legal and equitable estate extinguishes, or, as the phrase is, merges the equitable in the legal estate, and the latter becomes absolute. The estate which was before a fee simple, is still the same, but it is relieved of the condition or equity with which it had been previously encumbered. If by foreclosure, the condition is gone for all purposes, and the estate is absolute in the mortgagee. If by conveyance, it is so at law, and if the widow has any right, it is only in equity to redeem pro tanto. In such case the mortgagee does not hold under the subsequent conveyance, but under the mortgage, and, (he equity of redemption being extinguished, his title is paramount to the dower title of the wife. It is an entirely different case where, the mortgage having been discharged, the tenant can rely only on the title derived from the husband. He who claims under the husband by conveyance during coverture will hold subject to the wife’s dower.

But, if such be the law, still it is urged that this case stands on special grounds, which distinguish it from the general rule. It is said that the sale by the executors was under the authority of a statute, which specially directed the proceeds of the sale to be applied to the discharge of the mortgage, and that the conditions of the sale actually were, that the conveyance should be clear of encumbrance. But we do not conceive that *550 the authority so to dispose of the proceeds can affect the title of the mortgagee. The mortgage was an encumbrance upon another part of the estate, which it was desirable to relieve by this sale. The authority so to dispose of the proceeds was necessary to effectuate the object. That the property, therefore, should be sold clear of encumbrance, was properly made a condition, and which would have been important, had the sale been made to any third person. The executors could not affect, by their sale under the authority of the statute, the title of the mortgagee, and it would have been important for such third person, had he purchased, to see to it, that the collateral agreement was duly performed and the mortgage extinguished by payment. But it may have been, and probably was impossible to make a satisfactory sale to a third person, with the additional difficulty as to the widow’s dower, which would intervene upon the discharge of the mortgage. In either case, whether the sale should be to the mortgagee or to a .third person, the title to be conveyed by the executors was but the interest which had been held by Robert Thompson previous to his decease, and which was merely an equity of redemption. When that interest was purchased by the holder of the mortgage, the collateral agreement to discharge the mortgage became not merely immaterial and unnecessary, but inconsistent with his rights. He insisted, as he lawfully might, that he would not relinquish the estate which he already had, but that he would hold his mortgage as a muniment of title of land taken, not in payment, but in substitution for his debt. He received a conveyance of the equity of redemption,, but he chose to hold his prior paramount title; and the executors assented, receiving from him a release of the bond and mortgage, in which he declared, that he so held the mortgage, and his purpose not to relinquish it. However the executors may have chosen to state their accounts, in fact he paid but $120.16 for the release of the equity (all that the executors could convey), which equity he thus extinguished by merger in his legal title.

It is difficult to see how the prior or subsequent acquisition of the legal title under the mortgage can affect the doctrine of merger, which is said to be inflexible at law. Merger is said *551 by Mr. Preston, to be the conclusion of law upon the union of two estates: merger, or in other words extinguishment, is the effect, while union is the cause. It takes place when a greater and less estate coincide and meet in one and the same person, and an instance given is, when tenant.for years obtains the fee; st> when legal and equitable estates unite, the equitable must merge in the legal. But it is the union of the two estates which is described as causing this result, and which seems to owe nothing to the mere order of acquisition of those estates. There is, however, nothing in the case itself which makes it necessary to decide whether one who holds the equity of redemption by conveyance, mediate or immediate from the husband, can protect himself from dower by the subsequent purchase of a prior mortgage. (a) This question, though discussed as part of the general doctrine, is not raised by the case. The present seems to be the plain case of the equity of redemption united by purchase to the prior legal title of the mortgagee, and thus extinguished at law.

The judgment must be affirmed.

Judgment affirmed — Ayes, Carpenter and Ogden, Justices, and Wall, Porter, Speer, Sinnickson, Schenck, and McCarter, Judges — 8.

Nays — None.

The Chief Justice and Justices Neviub and Randolph did not hear the argument, and therefore expressed no opinion; The chancellor did not vote.

Cited in Den v. Brown, 2 Dutch. 204 ; Duncan v. Smith, 2 Vr. 325 ; Chiswell v. Morris, 1 McCar. 103; Eldridge v. Eldridge, Id. 198.

The rule treated of in tlie judgment of the court is the technical application at law of the common law doctrine of merger or extinguishment, which takes place on the union of two incompatible estates in the same person. To the cases cited may be added, Den v. Van Ness, 5 Halst. 106; Cooper v. Whitney, 3 Hill 95 . But tlie view taken by tlie court upon the point here mooted seems to derive some support from the rule held in courts of equity. Payment of tlie mortgage debt by the mortgagor must extinguish the lien, but such is not necessarily the result of payment by a purchaser of the equity of redemption. if the latter, in such case, take an assignment of bond and mortgage given before marriage, it has been held that the widow will he entitled to dower in the equity of redemption only, subject to the mortgage. Hartshorne v. Hartshorne, 1 Gr. Ch. Rep. 356 ; Russell v. Austin, 1 Paige 193 .