Moore v. Esty

5 N.H. 479

• Court: Superior Court of New Hampshire
• Decided: October 15, 1831
• Status: Published

Opinion

Richardson, C. J.

delivered the opinion of the court.

It is contended, in this case, that the demandant is not to be defeated, on the ground that the husband had only an instantaneous seizin, because he took a fee, and parted only with a freehold. It is said the rule that a widow is not to be endowed of an instantaneous seizin, does not apply in such a ease. But we see no ground on which this distinction can be maintained. A widow is not entitled to dower in the cases,twhere the rule applies, because her'husband was never beneficially seized of any present estate of inheritance during the coverture. And whether he reconveys, in these cases, a freehold or a fee. it leaves him no seizin, on which a claim of dower can be founded. It was so decided in Fisk v. Eastman, 5 N. H. Rep. 240; and (he law on this subject must now be considered as settled. 15 Johns. 458, Stow v. Tifft.

It is also insisted, in this case, that the tenant, who derives his title from the husband, is estopped to deny the seizin of the husband, and several casc-s, decided in New-York, are cited. We have examined the cases decided in that state, attentively. The earliest case is that of Bancroft v. White, 1 Caine’s Rep. 185, where it was decided, that a husband, having been in possession of land, and having conveyed the same with warranty and in fee, this was prima facie evidence of a seizin in the husband, against those who claimed under him, so as to entitle his widow to dower. This principle, which is re-cognised in Embree v. Ellis, 2 Johns. 119, seems to be indisputable. In Hitchcock v. Harrington, 6 Johns. 290, where land was conveyed to the husband, and he at the same time reconveyed it in mortgage, it was held that a person, claiming under the heirs of the husband, could not set up the mortgage to defeat the wife’s dower, although the mortgage was never discharged by the husband. But this is only a recognition of the established rule, that a mortgagor is to be considered as seized, with respect to all the world except the mortgagee. The case of Collins v. Torry, 7 Johns. 278, contains a recognition of the same rule.

In Hitchcock v. Carpenter, 9 Johns. 344, it was held, according to the report of the case, in an action of dower, that, as the tenant claimed under the heirs of the husband, who had been in possession, he was estopped to deny the seizin of the husband. These circumstances afforded stron g prima facie evidence of aseizin, but certainly did not amount to an estoppel. For, can it be doubted, that if, in such a case, it could be shown that the husband, although in possession, never had any estate in the land, except a remainder or a reversion after an estate for life, that this might be shown to defeát the claim of dower ? We think not. The cause was correctly decided, but the court used the word estoppel in a new sense, or the case is not accurately reported.

Possession by a husband claiming to be owner, is prima facie evidence to entitle his widow to dower. 7 Cowen, 353, and 5 ditto, 299, Jackson v. Waltermire.

And it is possible, that there may be cases, in which a tenant, in a writ of dower, w*ho claims under the husband, cannot be permitted to set up the title of a stranger to disprove the seizin of the husband. 6 Johns. 293.

Bal there is no pretence that there is any Using in the circumstances of this case, which can preclude the tenant from showing that the husband was never so seized as to entitle this demandant to dower.

It is further contended on behalf of the demandant, that the reconveyance was a mere mortgage, and that therefore the mortgagor was to be considered as seized, with respect to*all the world except the mortgagee, and that he was so seized as to entitle the demandant to dower. We do not doubt that if the reconveyance can be considered as a mortgage, the demandant is entitled to dower in the land. The question then arises, was the reconveyance a mortgage ? We do not doubt that there may be a mortgage for the security of things other than the payment of money, or that this reconveyance was intended as a security. But it does not follow, from the circumstance, that it was intended as a security, that it can be considered as a mortgage in this state. In the case of Lund v. Lund, 1 N. H. Rep. 39, the conveyance was intended as a security, and yet it was held not to be a mortgage.

So in Bickford v. Daniels, 2 N. H. Rep. 71, the conveyance was intended as a security, but it was held not to be a mortgage.

There was a similar decision in Runlet v. Otis, 2 N, H. Rep. 167.

To constitute a mortgage, the land must be put in pledge on condition. It is not enough that it is intended as a security, the conveyance must he on condition.

In this case, the deed of the husband, in terms, conveys the land to Josiah Moore, senior, for life, with a reservation of the possession until the condition of the bond be broken. But this reservation does not make the conveyance a conveyance upon condition so as to constitute a mortgage, For, admitting that it is not amere agreement as to the possession of the lan$, but that it may be considered as a reservation to the grantor of an estate in the land, ad tempus iudeterminatwn absque, aliq.ua certa temporis pmfmiiione, which is a freehold. Bracton, 207 ; Com. Dig. “Estates,” E, 1 ; Co. Litt. 42, a ; 2 Bl. Com. 121 ; and admitting that the reservation, thus construed, is not void as being repugnant to the grant ; yet still the legal effect of the two deeds would be to give the land to Josiah, junior, so long as he performed the condition of the bond, remainder to Josiah senior, for life, remainder to Josiah junior, in fee. And this remainder to Josiah, senior, for life would be a vested estate. Feme’s Remainders, 330. There would, in that case, be no condition that could make the conveyance a mortgage, nor would the demandant be entitled to dower. For it is settled that where a husband has an estate for life, and a remainder in fee, and there is an intervening vested estate in some other person, the husband has not such an estate as can entitle Ids wife to dower. 3 Levintz, 437, Duncomb v. Duncomb; Ferne’s Remainders, 509.