§ 28-11-303 — Mortgaged land

(a) When a person seized of an estate of inheritance in land shall have executed a mortgage of the estate before marriage, the surviving spouse, nevertheless, shall be entitled to dower or curtesy out of the lands mortgaged as against every person except the mortgagee and those claiming under him or her. (b) (1) When a person shall purchase lands during coverture and shall mortgage his or her estate in the lands to secure the payment of the purchase money, the surviving spouse shall not be entitled to dower or curtesy out of the lands as against the mortgagee or those claiming under him or her, although he or she shall not have united in the mortgage. However, he or she shall be entitled to dower or curtesy as against all other persons. (2) When, in such a case, the mortgagee or those claiming under him or her, shall, after the death of the mortgagor, cause the land mortgaged to be sold, either under a power contained in the mortgage or by virtue of the decree of a circuit court and any surplus shall remain after the payment of the moneys due on the mortgage and the costs and charges of sale, then the surviving spouse shall be entitled to the interest or income of one-third (1/3) part of the surplus for life, as his or her curtesy or dower. (c) A surviving spouse shall not be endowed of lands conveyed to the deceased spouse by way of mortgage unless the deceased spouse has acquired an absolute estate therein during the marriage.

Legislative History

Rev. Stat., ch. 52, §§ 4-7; C. & M. Dig., §§ 3517-3520; Pope's Dig., §§ 4401-4404; Acts 1981, No. 714, §§ 27-30; A.S.A. 1947, §§ 61-210 -- 61-213.