King v. Stetson

93 Mass. 407

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1865
• Status: Published

Opinion

Dewey, J.

The seisin of King, the husband of the demand-ant, was merely transitory, and not sufficient to entitle her to dower in the lands conveyed to him by MeCollough. Where the husband is seised but for an instant, the wife is not to be endowed.. This principle was early applied in the case of Holbrook v. Finney, 4 Mass. 566, where a conveyance to the husband and a mortgage by him to the grantor were made at the same time. But it is not confined to a conveyance and mortgage between the same nominal parties. The question rather is, whether,the two instruments are to be considered as parts of one and the same transaction, and no interval of time intervenes between the taking of and parting with the estate.

■ In Clark v. Munroe, 14 Mass. 351, the application of the principle that a mere instantaneous seisin excludes dower was made to a case where the husband received a conveyance in fee, and at the same time mortgaged the estate to a third person. In the view taken by the court in that case, all that was necessary was, that it should appear that the whole matter constituted but one transaction. In Hazleton v. Lesure, 9 Allen, 24, it was held that it makes no difference whether the transaction consists of one conveyance or of several, or whether they are executed between two parties or more, if all be done at the same time, and as a part of the same transaction.

Applying these principles to the facts assumed by the court to have existed here, that the loan upon the mortgage to E. S. James was procured for the purpose of discharging the two McCollough mortgages, thereby to enable King to get a conveyance of the property from McCollough; and the two mortgages made by McCollough were in fact discharged by the proceeds of such loan, and such discharge and the deed of McCollough to King and the mortgage of King to James were one transaction, and done at the same time, the facts would only present the case of an instantaneous seisin of the husband, and the wife would have no right of dower as against the mortgage to E. S James.

Exceptions sustained.