Den or dem. Taylor v. Fen, 10 N.C. 125, 3 Hawks 125 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 125, 3 Hawks 125

Den, or Dem. Taylor v. Fen and Parsley.

From Wake.

“ A. conveyed, by deed of trust, his real estate to trustees, to satisfy creditors, and continuing in possession, died ; his widow is not entitled to dower therein.”

Ejectment, tried before Paxton, Judge. — On tbe trial of this cause, it appeared, that on the 18th day of November, 1820,Robert Parsley, of Wake County, was seised in fee-simple, in possession of the lot of ground and improvements in the declaration mentioned ; and on that day, he executed a deed to the lessor of the Plaintiff in fee, in trust, to secure and pay certain debts therein mentioned, as due to third persons, who were parties to the deed; which deed, was duly proved and registered in the Register’s office of Wake County: and it further appeared, that the said Robert Parsley continued in the possession of the said lot up to the time of his death, which happened on the day of March, 1821; and .that the Defendant is his widow and relict, and that she, after his death, instituted proceedings in Wake County Court, for her dower in the said lot and premises, at August Court, 1821; whereof notice was given to the administrator of Robert Parsley, but no notice whatever to the lessor of the Plaintiff, or to the heirs at law of the said Robert: and at August Session aforesaid, of said Court, it was ordered that a writ of dower issue; whereupon, a writ of dower issued to the Sheriff of Wake County, who proceeded to iinpannel a Jury, which assigned to her the premises in dispute, as her dower; and made due return thereof, to the November Sessions, 1821, of the County Court of Wake; when their report was by said Court, ordered to be confirmed: and besides, it further appeared, that the debts and moneys mentioned in the deed to the lessor of the Plaintiff, remain unpaid, and are fully due.

Upon all which, the Defendant’s attorney moved the Court to instruct the Jury, “that the Defendant was entitled to dower in the said lot and premises, and that the same ]ia{] l)eel1 properly assigned to her, and therefore, the Plaintiff could not recover in this action the said premises mentioned in the said assignment of dower, of which the Defendant admitted herself in possession; which instruction, the Court refused to give, and the Jury thereupon, rendered a verdict for the Plaintiff, and the Court gave judgment accordingly.

The Defendant thereupon, moved for a new trial, upon the ground of the Court’s refusal to give instructions as above required, which was refused, and the Defendant appealed to this Court.

Gaston, for the Appellant,

is the widow of a mortgagor, or grantor of a deed of trust, dying in possession, before foreclosure of redemption, or sale under trust deed, entitled to dower ? The correct answer to this question depends, mainly, on the interpretation to be given to the act of 1784, Chap. 204, sec. 8, JYew. Rev. and to aid in a correct interpretation, it is important to ascertain what was the law before this act passed.

At common law, from the very definition of dower, a widow should have been held to be dowable of an equity of redemption, because, in equity, the mortgagor is the owner, and equity follows the law. In 1732, a decision, favourable to the claim of the widow of a mortgagor, was made by Sir Joseph Jekyll; Banks v. Sutton, (2 F. Wms. 700,) but it was ultimately decided, in 1783, that the widow should not be endowed. — (l Brown, 326.) This latter decision was admitted to be against reason and principle, and was upheld in England, only from fear of perplexing titles. — Burgess v. Wheate, (1 W. Black. 123.) B’Arcy v. Blake, (2 Scho. Lef. 387.)

The colony of North-Carolina was settled when little was known of trusts, except those arising on mortgages. and, (from the then state of the country,) in lands purchased, but not patented. This anomaly in the English law, relative to dower, was unknown in a country where land was abundant, and constituted the principal part of every man’s possessions. It was here an established principle, that, of right, a wife was dowablo of whatever lands her husband owned, unless she barred herself by voluntary act, and she had this dower when the lands were mortgaged or unpatented.

See the act of 1715, Ch. 3, Mew Rev. and the 7 Ch. of the same year, sec. 9, which after providing, among other things, for the registration of mortgages, enacts that nothing contained in the act shall be construed “to bar any widow of any mortgagor of such lands or tenements, from her right of dower to the said land, who did not, legally, join with her husband in such mortgage, (i. e. in the manner pointed out by Ch. 3, of the same year,) or otherwise bar or exclude herself from such her dower of right.” See, also, Ch. 4, of the same year, sec. 6, which enacts, “ tiiat all surveys or patents, hereafter to be made or granted, for the land or plantation of any deceased person, the same shall be made and granted in the name of the heir at law, which, nevertheless, shall not bar any that have title thereto, by dower or curtesy, &c. It surely cannot be doubted that, in 1715, the legislature intended that, under these acts, a widow should have dower of an equity of redemption, and of land unpatented. She was regarded as having, by the marriage, a vested rigid, which could be defeated by her own act only.

This was the received law of the sister colonies of New-York and Connecticut. — (7 Johns. R. 280, and note lo the same case.)

This then was the law prior to 1784 ; the act of that year made important alterations in the law of dower, yet with a view to the advantage of widows. In one respect it diminished the extent of dower? it left the bus-band a free and full power of bona Jide alienation, and confined dower to that whereof he died “ seised or possessed,” and that which he bad given away with intent ,Q defraU(j her; her uniting in the conveyance of the husband became unnecessary; he could pass it all away by his deed; but of all remaining, not thus passed away, of which, at his death, he yet had seisin or possession, she had dower, unless he gave her, by will, a full equivalent.

The words, “ seised or possessed,” are, alone, sufficient to decide this question ; as used by the legislature, they are, obviously, applicable both to legal and equitable estates. In the 2d, 3d and 5th sections of the act they are used, and unquestionably apply to both legal and equitable fees. The second and third sections of the act, speak of persons “ seised or possessed, or having a right to any lands;” iti the eighth section, giving dower, the words, “ having a right, &c.” are omitted, because it was not intended to give dower of estates, not in possession. The Defendant comes within the plain purview of the words, her husband did die possessed of these lands ; but she comes. more clearly within the spirit of the act. The preamble recites, that wives are “entitled to share in the estate they have contributed to raise;” she is barred by an equitable estate given to her, an estate “to some other for her use.” By the fourth section of the act of 1791, Glu 351, Mew Rev. her claim is preferred to that of creditors; the act of 1789, Ch. 312, M. R. directs Courts of Law to notice, that the mortgagor is, in fact, owner, and the mortgage only security for the debt.

The alteration made by the act of 1784, is avowedly for the benefit of widows; it should not be extended, therefore, to repeal,, by ambiguous implication, a right before existing.

The construction, for which we contend, has been adopted by a learned writer, Judge Griffiths, (2 Griffiths’ Law Register, 757, note 2,) and it is a construction supported by reason, humanity, justice and policy. By reason, for the widow’s claim was, originally, excluded against reason; by humanity, which would save the helpless widow and children from being turned house-less on the world, banished from the home where they had known a father’s society and affection; by justice, for the widow has bought her claim, and paid for it the highest price known to the law; and by policy,1 for in the wreck of misery, a plank should be afforded to the surviving sufferer. These deeds of trust are tremendous engines, against whose, explosion some sheltered nook should be secured for the helpless.

Ruffin, contra.

Neither at Common Law, nor in Equity, is a w idow dowable of a trust estate, whether the husband hath, before the marriage, parted with the legal estate in trust for himself, or whether a trust has been limited to him, by deed or will, before or during the marriage. — Bottomly v. (Fairfax, (Free, in Ch. 336.) Ambrose v. Jlmbrose, (1 P. Wms. 321.) Mto. Gen. v. Scott, {Cas. temp. Talbot, 132.) Nor of the equity of redemption, of a mortgage in fee, made before marriage. — Dixon v. Soville, {Pow. on Mart. 321.)

If, in England, the mortgage be made, or the trust created by the husband himself, after marriage, of course the wife is not barred, because there was a seisin during coverture. Our act of 1784, puts conveyances, made at any time during the life of the husband, upon the same footing as if made before marriage in England. It is said to be a modern doctrine, that the wife is not to be endowed of an equity of redemption, and that the law was held otherwise at the settlement of this country, as appears by the case of Banks v. Sutton, in 1732.

There was neither dower nor curtesy of a use, at Common Law; that is one of the evils recited in the Stat. 27 Men. viii; which shews the doctrine to have been established very long ago. The anomalous case is, that there should be curtesy in such interests, and not that the wife should be excluded. — Dixon v. Saville, (Tow. on Mart 332.)

Banks v. Sutton, is the first and the last case, in which dower was allowed; it never was followed in a single 'instance, notwithstanding the great character of Sir Joseph Jekyll.

The ground assumed for giving dower in these equities, that equity follows the law, fails altogether.

There is nothing in the situation of our country, that will enable our Courts tri alter this settled rule of law1, nor in our early legislation that shews that the Assembly meant to change it. /

Collins v. Torry, (7 John. Bep. 27$,) has been cited, to shew that the Courts in New-York, without a legislative act, hold that there shall be dower of an equity of redemption of a mortgage in fee; and an analagous decision is demanded here. Our Courts have no right to change the law, from any fanciful analogies, or for any supposed reasons of justice, humanity or policy. Those considerations properly weigh with the legislature alone.

But Collins v. Torry, which is, itself, a modern case of 1810, is founded, or rather professes to be founded, upon legislative enactment. The rule in that case, is laid down as a consequence of the decision in Waters v. Stewart, (1 Caine’s cas. in Error, 47,) that such an equity of redemption was real estate, within the statute of New.-York, subjecting such estate to salé upon execution ; consistency required the Court to go to the full length, and when they held the equity of redemption to be the land at law, for some purposes, they were bound to hold it so for all. For the history of this doctrine, vide the opinion of Kent, C. in Titus v. Neilson, (5 Johns. C. C. 454.) The very ground of the New-York rule fails here. The Courts of North-Carolina, have always held an equity of redemption not to be subject to execution, mr-der our act of 1777, and the point was finally settled in Kirkland v, Gregory <$• Mlison, in 1810, and in Lynch v. Gibson 8r Fisher, it was held that the mortgagee’s legal estate was subject to sale, and would draw after it his beneficial rights to the mortgage money $ upon this the legislature hath since acted by the statute of 1812.— (JV5. R. Ch. 830, sec. 2.) Consistency, therefore, requires our Courts to declare, that equities of redemption are not legal estates, for any purposes, nor liable to any legal claim, (of which character is dower,) except as far as they may be so expressly made by statute.

It is, moreover, to be observed, that even in New-York, the rule is restricted and specially tied up to an equity of redemption ; no case has given dower in a trust or other equity. Although New-York has a particular statute, subjecting uses and trusts to sale by execution, and the statute of frauds, in England, does the same tiling, yet neither in New-York nor in England, do we find, since those statutes, the rule established as to sales extended to dower.

Our own legislation, prior to 1784, has been relied on by the other sidenone of the acts bear out the position eon tended for.

The act of 1715, ch. 4, sec. 6, gives dower in entries. "We know nothing of the mode of entering or getting grants for vacant lands, at that time, nor of what nature the estate of the enterer was considered •, probably it was deemed a kind of, or incipient legal estate, as it is now in most of the states, especially as it was held that the king could not be seised to a use or in trust. This is the more probable from the last clause of the section, which shews that the Assembly had in view, the difference between legal and equitable estates, as to the right to dower, for it is declared, that in case of the death of the enterer, before the issuing of the grant, “ the title by dower shall stand good and valid in law, as it might or ought to have done, if the deceased possessor had survived and taken out a patent in his own name,”

The object was to provide against the effect of the Ie-gal title in its consummation, appearing to be in a person, against whom, the widow would not, upon the face of the ^}e) jiave a preferable claim. ' .

If the entry was a legal title, .this provision proves nothing to the present point. If it was an equity, then dower in an entry was an exception, created by statute, which does not extend it generally to all, or any other equities, The act of 1.715, Ch. 7, does not affect this question: it does not confer dower where it did not exist before. At that time, the common law was, in force here, and the wife was dowable of all the lands to which her husband was seised during the coverture. The proviso, in section 9, plainly relates only to mortgages made after marriage, for it speaks of the wife barring herself by joining in the mortgage with the husband, and of her right, (that is, present right, at the time of making the mortgage,) of dower in the land: in case of a mortgage before marriage, she could not join, nor even according to the present argument, would she be entitled to dower, in the land, but only in the equity of redemption. If it had been intended to give her dower in an equity of redemption of a mortgage, made before marriage, it would have been plainly said so; nor, if such was the design, can any reason be conceived why.the Legislature should not have embraced trusts also, which are much more important than equities of redemption; the one, being the whole estate in equity, and the other, only the residue after payment of the mortgage money; especially, as at that time, from the unimproved state of the country, dower could be worth very little. The proviso, is, as its words in the first part import, nothing more than a saving of the right of dower, against the operations of the conveyances provided for in the preceding sections of the act. By Ch. 3, of the acts of that year, provision was made for the passing of lands by femes covert, in which it is recited, that there had been many sales by the husband, with the wife’s consent, and others by them both, by deed.

By 1st arid 2nd section of Gh. 7, deeds thereafter made and registered, according to the act, or those before made for a valuable consideration paid, and then registered, or that ,should be registered within twelve months, are declared valid to pass estates in land, and shall be good and available in law and equity, against the vendors and their heirs, and all persons claiming by, from, or under them, in as full and ample a manner, to all purposes, as if the title had been made either by fine, common recovery, livery of seisin or any other way whatever. It may be, that it was apprehended that thhse broad terms would take in the dower of the wife, as oho claiming by, through, or under the husband. Possibly, that apprehension might be groundless, as the Courts might not think such a case within the fair construction, though within the letter of the act; but the proviso could do no harm, and was inserted for greater safety. The words, “other than mortgages,” in the first section, do not relate to deeds by way of mortgage, and registered, operating to pass the estate, as the other deeds mentioned in the act do; they relate simply to the registration: absolute deeds, were to- be registered in twelve months, mortgages, in fifty days. The argument of the other side, proves too much ; if correct, there must be livery of seisin and at-tornment upon mortgages, at this day. More probably, however, the proviso relates only to the two sections immediately preceding it; especially, as it does not extend, to the wives of all vendors, but in its terms, is restricted to the wives of mortgagors. Those sections introduced two new principles into the law of mortgages : by section 7, a junior mortgage in date, if registered, was preferred to any former mortgage, unless the prior one should be registered within fifty days after date: the first registered, is declared to be the first mortgage. If the wife joined in the prior mortgage, and not in the second, and the latter was first registered, but for the proviso she would be charged with both: at all events, a material question could be made on it; for the wife would be clearly bound by that to which she was a’party, by which she had passed her legal title to dower, in the mortgaged premises. The second mortgage, by the act, is placed above the first, and what would there be to prevent such second mortgage, when sued by tbe wife, from protecting his preferable mortgage, by setting up against her, that which she herself had executed? The proviso, wisely declared therefore, that although, as between the mortgagees themselves, the first, should be last, and the last, first; yet, as between the mortgagees and the wife, only that mortgagee, to whose incumbrance the wife was a party, should set it up against her: again, by section 8, the prior unregistered mortgage, lias a right to redeem the registered mortgage, and in casé of double mortgages, the mortgagor is excluded altogether from redemption. Suppose the wife to have joined in the junior mortgage, which was registered, and the mortgagee by the prior mortgage, in which she did not join, redeems it; having her legal estate with equal equity, lie would hold until she redeemed boil); for she has parted with her whole estate at law, by joining in either deal: or suppose her to join in the second mortgage, knowing of the first, she would be excluded from redemption, if her right were not saved by the proviso. This section cannot, as has been contended, be regarded as laying down any general rule of law-in relation to dower: it is simply a limitation upon the general expression of the preceding parts of the act. It is by way of proviso, which from its very nature, would have the restrictive operation alone, which wc contend for, and its terms arc, “that nothing in this act shall be construed, &e.” and not, that hereafter, a widow shall have dower out.,of estates mortgaged by the husband before the marriage. It must be obvious too, that the construction demanded by the other side of the two acts of 1715, is liable to be charged with this absurdity, that the Legislature, at the same session, enacted the same thing twice j for, if chapter 4/ either gave dower generally, or be an acknowledgment that the law, as then understood, gives it in trusts and other equitable estates, where was the necessity of giving it a second time in chapter 7 ? But if this construction be wrong, then it is plain that the act of 1715, as well as the Common Law, was repealed by the act of 1784. — (JV*. R. ch. 204, see. 8.) This latter statute lays down a new rule, upon which, alone, dower has ever since rested and now rests. The Common Law is plainly altered in every respect by it.— Winstead v. Winstead, (l Hay. Rep. 243.) It repeals all prior, inconsistent rules, whether existing at Common Law or by statute.

By it, dower is to be of all lands, tenements and hereditaments of which the husband died seised or possessed. The preamble, it is true, professes a wish to better the condition of a widow, and so tiie act does in the point in which it is recited, that the provison for her is inadequate, which is in having dower in unimproved lands.

At Common Law, dower was one-third in quantity of each parcel. — (1 Cr. Big. 164.) This being laid off to the widow in wild lands, which she was to have for life only, was of but little value to her. The relief given is, that she shall have one-tbird of all the lands, which third .shall include the mansion-house, offices, out-houscs and other improvements. It also gives her dower of lands, held in joint-tenancy. So far the act goes for the benefit of the widow.

But there is nothing in flic preamble, nor in the body of the^act, nor in the purposes of the legislature, extending dower to trust estates.

The words embrace only estates that are purely legal, “lands, tenements and hereditaments, of which the husband was seised or possessed.” If does not include those of which another was seised, in trusty for him.

So important a change in the law, would have been plainly expressed. It is not possible to attribute to the law-makers, the design to legislate so darkly. In many 0f ¿¡)8 states, statutes have been passed on the subject of dower, and in some of them it is given of trusts; but it is expressly given. — StaL of Virginia, of 1785 — of Kentucky, 1796 — of JTcw-Jerseij, 1799; besides others.

The Legislature could not have omitted it, in this act, upon the supposition that it previously existed. It has been already shewn, that none of the previous acts gave it; and if they had, this statute, by embracing the whole subject and laying down a new rule, would repeal them. By sec. 17, “every law, heretofore in force in this State, and every clause or part thereof, which came within the purview of this act, are repealed.”

■ It can make no difference, in this argument, whether the trust was created before or after marriage, upon the supposition of the latter being bona fide. And, to su,p-^ port the Defendant’s claim in this case, it most be she. a that it w ould be good to every trust, in any manner, and at any time, vested in the husband.

The act would surely have been as explicit, if it had been intended to alter the law in relation to trusts, as it has been in the alteration respecting the legal estates, out of which she shall be endowed.

Reliance is, however, put upon the word “possessed,” and it is agreed that it must mean something more than a fee-simple at law; for of that, there is not a possession, but a seisin. And it is contended, that “possessed” embraces trusts, because it is used in the previous parts of the act, in the regulation of descents.

No such inference can be drawn from that term. It may not be obvious, what meaning \vas intended by it, but it is obvious that trusts were not meant.

The word, itself, is technically legal; as much so as “ seised” is. There can be no more a possession of a trust than there can be a seisin of it. It is true, that the tech nicej. .sense of “ possessed,” confines it to terms for years; and hence it is said, it cannot be taken in that sense, because there cannot be dower of a term. But why may there nor be, as well as of a trust, if the Legislature so choose? Dower is, indeed, for life, and a term is a less estate; but whether its duration will be less than a life, depends, in point of fact, on the length of the term ; and the widow would have it for her life, if it lasted so long. And by the act of the succeeding session, of the same year, we find that dower of slaves was given, in which the widow has a life estate in chattels purely personal. Probably it may relate to entries, as mentioned in the act of 1715, ch. 4, whereof the enterer is called “ the deceased possessor.”

But. it may be admitted to be used in the same sense, in the 8th sec. about dower, as in the 2d, 3d and 5th sec. respecting descents of fee-simples, and the docking of entails. Such an admission docs not prejudice, but helps our argument; for the act does not profess to regulate the descent of any equitable estates, but only estates at law. In no act of Parliament, nor of our Assembly, is found any provision for the descending of trusts; none was necessary, for it was always well known that equity regarded the trust, as law regarded the estate, and that, following the law, the trust would descend in equity, as the legal estate did at law. The act is, therefore, entitled “ an act to regulate the descent of real estate,” and provides for the case of one dying seised or possessed, or having any right, title or interest, in and to any estate, or inheritance, of Land or other real estate in fee-simple.

But the term “ possessed,” may have an appropriate sense in relation to real estates at law, besides terms for years, and in this’act lias such a one that is very important. At Common Law, only actual seisins descended, and he who claimed as heir, must make himself so to the person last actually seised: as grandfather, father and son — the grandfather is. disseised, the father may claim as his heir : but if the father die, before entry, the son cannot claim as heir to the father, from whom the ñght should descend, blit must claim as heir to the grandfather from yvhom the seisin came. The act alters this rule of the Common Law, and provides that real estates shall directly descend from him having the right and title at his death, as if he had the seisin.

Again; at Common Law, this seisin descended whether acquired by right or wrong. By wrong, it was acquired either by an actual disseisin, by force, or by feoffment; which, of itself, operated as a discontinuance and passed the estate in the lands, whether the feoffer had it in himself or not. A wrongful seisin, thus acquired, was, for many purposes,.protected by the law; as, upon the death of the feoffer, his heir would have the apparent right of possession; and if the true owner acquiesced,, for a particular period, that apparent right might become the actual right of possession, and by a longer (acquiescence, be ripened into the absolute right of property." — (2 Black. Com. 198.)

But after the passage of the statute of uses, conveyances under it, were held only to pass rightful estates;* that is to say, the estate which the bargainor really had, auil no more. They produced no discontinuance nor disseisin, but only passed the use to which the statute carried the possession. Conveyances of this kind are the only ones that were ever in use in this state; and it w'as the design of the act of 1784, to prptect interests derived under them, for the benefit both of the heir and widow'.

For if one, who has no right to land, convey by bargain and sale, the bargainee, even after entry, has nothing but the possession, not the seisin. If he had the latter, his death wmuld toll the entry of the true owner, who "would be, thereby, barred of his ejectment and put to his real action. Yet these possessions, by our statute of limitations, as they are in England by Stat.Jac. are protected in the same manner, and for the same reasons of policy, as the wrongful seisins were by the Common Law, and, in time, they becotne perfect rights. In framing canons of descent, therefore, it was just and proper that they should he regarded and be passed, so that the possession of the ancestor should be continued in, and connected with, the possession of the heir, and thereby ripened into the right of property. The cases provided for by the act, and the estates made descendible, are, first, the mere right of property, unaccompanied by either possession or seisin $ 2d, the possession without seisin and without right, because acquired from a person who had not the right, by a conveyance which, per se, does not vest a seisin, but which may, in time, become a rightful possession, and finally an actual seisin; and, thirdly, the full se.isin and comnlete title, in which the

the subjects of dower to the wife.

If, however, the argument, that the act regulates the descents of equitable as well as legal estates, could find any support in the words, it must be much more on. these, “ having any right, title or interest in, or to, any estate of land,” than in the word “possessed.” Those words might possibly raise some, question, if it were not contrary to all our previous legislation on the subject of trusts, tofembrace them by construction, where the act docs not profess to do so.

It is remarkable that those words are omitted in the 8th section, and dower is not to be of lands in or to which the husband had right or interest, but is confined to those of which he was seised or possessed. This omission, and the fact that trusts are not expressly na- . . 1 J med, prove our position the more, strongly, because the Legislature had the subject of trusts, in one respect, directly in their view; for, by the. same,section, it is provided that the wife shall be barred of her dower,' by a devise of a satisfactory part of his estate to her, or to some other for her use. It is inconceivable that, if such *had boon intended, the same words would not nave been found in the description of the estate, out of which'she was, to have dower.

• No inconveniences can arise from this construction, by the husband putting his estate into trust. If he do it, before marriage, the wife is now, but as she was at Common Law, and the Legislature lias not thought proper to alter it. if, after the marriage, or even just before, and with the view to marriage, and with concealment from her,-he put‘his estate into trust for liim, or for any volunteer, she is*- redressed by the act. Such trusts arc plainly fraudulent,- within the first proviso of the 8th section; so,’I think,-if a particular trust be created after marriage, for a purchaser, or to pay debts, and it be satisfied in the husband’s life-tiine, and kept on foot with the intent to bar.the widow, it would likewise be fraudulent, within the proviso, and void, and perhaps it may be a fraud, per se, to keep a satisfied trust on foot. In all such cases, she would be entitled to dower against the heir, devisee or other volunteer;, claiming from the husband. But in all these cases it is plain, that the dower is of the land and not in the trust, for the deed and estate of the trustee, by reason of the covinous trust, is avoided by the act. There is, therefore; no argument to be drawn from any of our acts of Assembly, that the Common Law has been changed in this particular. A trust created by the husband to defeat the wife is not good; but a trust created by another, for the husband, is still good. The parent of the husband, for instance, -is not bound to provide for the. wife, and may, lawfully, to avoid dower, convey to one, to the use of his son, instead of to the son himself. The construction contended for, by the other side, would assert the right of the wife against this plain purpose of the grantor. In England, curtesy is allowed of a trust, but if it be for the separate use of the wife, it is not allowed, upon the ground of the intention to exclude the husband. — Hearle v. Green-bank, (1 Ves. 298 — 3 dtk. 695.)

It is but the same rule applied to the trusts of the husband. They as e all presumed to be upon the intention of excluding the wife 3 and it is upon that very ground, and the practice of conveyancers upon it, that dower has never been allowed of them. — (2 Sch. <$* Lef. ‘387.)

The usage of the country, and the practice of the pro- - fession, is entitled to equal weight here. Not a single ease Isas reached us, in print or by tradition, from 1715 to 1784, of dower in an equity of redemption, nor from 1784, to this time, of dower in a trust of any kind. There is not even a decision on the circuit 5 the question was never raised before.

It is not true, therefore, as a general rule, that the wife is dowabie, as against, the lien, of a trust 3 it is only true, that, she is dowabie of the land, of which there is a fraudulent trust.

But this is not a question with the heir. The present claim is against the trustee and the creditors of the husband, whose debts are provided for in the deed. The* trust, in favour of the husband, is only of the residue, after those debts shall be paid. Admitting that the wife is dowabie of that, in £p controversy for which she and the. heir would be alone interested, and the only parties, yet that right of dower does not extend itself to the land itself, against incumbrancers. The present claim is not for dower of the trust, belonging to the husband, but of the land, above and free of the trust. The very stating of such a claim evinces its futility. It is'first contended that a widow is dowable of a trust against the heir ; because she is so, it is next contended, that she is dowa-. ble of the land, not only as against the trust for the husband, descended to the heir, but against the trusts for other persons. The answer is, that the, husband has an absolute right to sell out and out, so as to bar the wife. It necessarily follows, that he has a right to sell, in part, so as to bar her pro tanto.

If any one purpose, of the act of 1784, be more clearly to be gathered than another, it is this : That the power of alienation should be perfectly free; that every fetter should be knocked off, but that which restrains the husband from dishonesty. Dower is said to be a legal and a just claim. It is legal, that is, it is created by the law and cannot extend beyond the statute; it is, also, just that the wife should be provided for ; but not more so, than that children should. The feudal policy of restraining alienations, so that the heir should succeed, has, long ago, been abandoned. Tim owner was first allowed to sell; then his estate was subjected to debts by judicial process; then divers contrivances to dock entails, were invented;. and then devises of part, and afterwards of the whole, were allowed. These are the fruits of a wiser policy than that of the feudal system. j Its principle is, that the strength of a nation consists in tlie enterprise and wealth of the citizens, which flourish best when left to themselves ; ami, to this end,' that every one ought to be allowed to make every thing he has, subservient to his purposes of enterprise, the exigencies of his situation, the demands of his creditors, ami the welfare of his family. In a now government, erected in modern times, with the lights of modern economy and of a republican form, these principles are peculiarly applicable; they have been acted on in this state in the fulness of their spirit. Lands, and every interest in them, can be. sold, not only as against the heir, but the wife; not only by voluntary contract of the bus-band, but, out and out, upon process. Entails are, by this very act, swept off at one blow. Shall the Courts arrest this policy of the Legislature, so plainly expressed and so beneficial to the community ? The wife is not left at the mercy of the husband, more than their children are, who arc at least as meritorious as she is ; but she is placed by the act on higher ground than the children. She has the full benefit of the regards she may have excited in the husband’s bosom. lie may, by will, give all iiis substance from his children to her; but is obligadlo lca\ c her one-third of his lands. The Legislature hath wisely thought, that it is more consistent with the rigiits of parents, and best for the interests of the child, to leave his nurture and advancement in life, (o the natural attachment of the father. This was done from a knowledge of the known propensity of human nature to provide for its offspring; and alienations of the father have been allowed, upon the presumption that he would aliene or not, accordingly as the interests of his family might he promoted, and that, at his death, his children would be the objects of bounty, upon whom the fruits of his la-bours would be bestowed. This is a much better reliance, than any legislative guardianship, exercised in tying up the hands of the parent, if this be enough for the child, if it be deemed the best for the child, what more can the wife ask than to be entitled, even against the wishes of the husband, to the full advantage of that affection, which lie bearcth for his children ? By one son, she has it; for if the father provide for his child, by same acts he must provide for his wife ; of whatever he has amassed for his children, she cannot be bxcludcd from a share. With a capacity to be preferred to the children, she is armed with the power of defeating every disposition or effort to depress her below them. Nay, she is much better off, because while the interest of the child is liable, to satisfy the debts of the father, the share of the wife, being an estate independent of and against those of the husband and heir, is not liable for any debts, which have Dot become specific liens, in the life of the husband, so as, in fact, to diminish the estate in him at the time of his death; for the act of 1784, gives hep one-third 0f die lands of which he died seised, to enure to her, and to vest in her as an estate for her natural life, without charging it with any debts; and by the act of Í791, there, is, again, an express saving of the dower from the debts of the husband.

The conclusion from this is, that the wife is not dowable of the land, when the husband had in it only a.partial interest, a resulting trust after the payment of debts. The estate is not altered for her and made different from that which romes to the heir. They both succeed to the same thing whatever it may be ; but the part of it that belongs to the wife is not liable for general dents, while the heir’s is. Hence, if the seisin be divested by a levy of an execution, in the life of the husband, a sale may be made afterwards, and the purchaser will hold free of the dower. — Winstead v. Winstead, per Haywood,J. (l Hay. Mep. 244.)

At Common Law, a widow is dowhble of an estate, of which there is a mortgage for a term for years; because, then the husband is seised. But then she must redeem to get at her dower ; and, as to the mortgagee, she can only do so, by paying the whole debt. Between her and the heir, she must keep down one-third of the interest, during her life, and for the residue she may, as assignee of the mortgagee, hold over the whole estate, until paid by the heir or the profits. — Banks v. Sutton, (2 T. Wins. 632 — 2 Cruise Digest, 139.)

And in all the cases that have been cited from New-York, in which the equity of redemption has been called the estate at law, it is only called so against all persons, except the mortgagor; as against him, it is admitted, she is not dowable.

The act of 1790, is relied on, to prove that she holds even against the mortgagee. That act only saves the dower óf the widow, in the lands of her husband, from liability for the debts of the husband, during her life. The question is .still open, of what estates, she shall have dower ? It is begging that question, ti^say, that because the share of the wife, in the estate of her husband, shall not be liable for bis debts, therefore she shall have a greater estate in the lands than the husband himself liad. The proviso only means general debts, and not specific liens. The power to aliene, includes that of encumbering. This is the more clear, because the same proviso in sec. 4, exempts from the debts of the husband, lands which he may will to her, in bar of her dower, under the act of 1784, provided they do not exceed the quantity she would have a right to as dower. Now it cannot be believed that, if the husband btdng seised of a large real estate, of which he mortgages a particular part, he can defeat the mortgagee by devising that particular part to his wife, in lieu of dower; which would he the consequence of the .construction contended for. Dower, and the. dev ise in lieu of dower, are placed on the same footing by the act.

At all events, we must recover in tins Ejectment. The widow cannot hold over against the heir or a purchaser, unless her «lower has been assigned to her. The allotment here, is absolutely v oid as to us; it ought not to have been rereived even as evidence upon the trial j the lessor of the Plaintiff was neither party nor privy to it: it was res inter alios acta, and does not hind us. ' .

It. is said however, that the act only requires notice to the h«'ir or executor, and the assignment is therefore, good at law, within the words of the act, so that our redress against a partial and unjust assignment, is like a creditor’s, by bill in equity to set it aside, as fraudulent and collusive. The answer is, that the prov ision of the act requiring notice to the heirs, shews that, although the proceeding by p«'tition is summary, it was not intended to be ex parte, as for a year’s allowance. Parties being required, it is reasonable to suppose, that all who* are parties in interest, are proper and necessary. It is impossible to suppose, that a mortgagee was intended to be concluded without a hearing. On thfc contrary, one argument may hence, be justly drawn, that the wife is not dowable of an equity of redemption at all; because, the act would not give dower which it did not provide the means of obtaining; and as the heir and executor are the only parties required to the petition, dower can only be had of those estates in which they are alone interested. The-reason why the executor is mentioned, is, that, by the same section, the widow’s share of the personal estate may be allotted. under the same petition. And here, it may be remarked, that notice was given to the administrator only; so that there was no person before the Court connected with the realty, and the judgment was therefore void, as against thq heir. Creditors in general, must go into equity for relief against a fraudulent assignment of dower, because they have no specific lien on the estate, and cannot therefore, be made parties to a suit for it. Incumbrancers by mortgage or trustees, have the estate itself, and cannot be divested of it by ex parle proceedings, or a suit between other persons.

llayner v. Capehart, (2 Hawks, 375,) was the case of a stranger, a mere trespasser, and the Court particularly say, that it is a very different question from the one, whether the assignhient divested the estate of the heir.

This is not a mortgage: a trust is totally different from an equity of redemption; the former arises from the stipulation of the parties, and may be limited to any person : the latter does not arise upon the face of the contract of mortgage, but is a creature of equity in favour of the mortgagor alone, from the principle that the deed was intended as a security. A mortgage is redeemable after a forfeiture; that is its essential characteristic. The mortgagee cannot raise his money upon, but by the assistance of a Court of Equity. In a deed of trust, a power may be given for a sale by the trustee, or another-; and, after a fair sale, the redemption is gone forever. Suppose a vendor conveys the estate to a trustee, upon trust, to secure, and if need be, to raise the purchase-money, and the vendee die before any payment, would that be an equity of redemption in either the vendor or vendee? Or, would the wife of either of them, and which, bedow-ablo of such an interest, either as a trust or as an equity of redemption ?

Haul, Judge.

The act of 1715, Clu 7. points out the mode by which conveyances for land shall be made, and declares that when so made, they shall be good and available in lawr, without livery of seisin, attornment, or other ceremony in the law whatsoever. By the 2nd and 3rd sections, provision is made for the registration of deeds made before that time, and also for deeds made in foreigu parts, and such deeds are declared valid: the 7th and 8th sections regulate the registration of mortgages, and take away the equity of redemption from a second mortgagor : the 9th section declares that the widow of a mortgagor shall not be barred of dower, who did not legally join with her husband in such mortgage.

I cannot perceive the object that this latter clause was intended to answer, because without it, widows of mortgagors, who had not joined with their husbands, would have been entitled to dower, as much as widows would, have been who liad not joined with their husbands in other' conveyances pointed out by the act as valid for the purpose of passing lands. It seems, however, not to have a prospective operation, the expression is, “who did not join with her husband in such mortgage,*” it therefore, can have no bearing upon the present question. At that time, and since, up to the year 1784, widows were entitled to dower in lands, of which their husbands were seis-ed, at any time during the coverture: the act passed in •that year, (New. Rev. Ch. 204,) malees a great altera-in the rights of dower; that act declares, sec. 8, that widows shall be entitled to one third part of all the lands, tenements and hereditaments, of which her husband died. sejsei] or possessed, it seems to be somewhat difficult to understand what ex vi'termini, the Legislature intended by the word, possessed; because it is difficult to imagine a case when a widow would be endowed of a possession only ; if it be considered as synonimous with seised, and tautologically inserted, there is no difficulty.

It has been argued, that it comprehends the case of possessions of’ mortgagors who die before foreclosure, as in the ■present, case: I cannot adopt that construction of the act, because I think the act of 1715, relative to mortgages not to be. in force, and because I cannot think that the, widow of a mortgagor who has parted with his title to the- land, in a bettor situation than the widow of a person who made a clear conveyance of his land; in either case, the grantor does not die seised of the land, and I conceive the Legislature never intended to give dower of a possession of land when the seisin w'as adversely' in, another person; here it is so, and it is placed so by the husband’s intent, to answer another purpose after his death, inconsistent with dower.

It is time, in the act of 1715, ch. 4, sec. 6, the Legislature consider a widow7 entitled to dower of lands which her husband had entered in his life-time, but for which he had. taken out no grant; but in that case, it will be seen, that there is no adverse seisin, and that case is one sni generis.

There is some colour for the belief, that in the act of 1715. ch. 2, the Legislature used the word possession, as synonimous with the word seisin, when they speak of a seven years’ possession under a defective or colourable title as giving a right: and such continued possessions ripening into title, although called possessions, are in fact, the titles -to the land, but naked possession even held under a trust, will not give dower. By the act of 1791, also passed for quieting ancient titles and limiting the claim of the state, it is declared that twenty-one years • i i . possession under colourable title should be a bar against the state, but that possession, is the title to the land, and is used as amounting to the same thing as if they had said, seised of the land. In my opinion, there is no ground whatever for saying, that the Defendant in the case before us, is in law, entitled to dower.

Taylor, Chief-Justice, and Hrnorrson, Judge, concurred.