Fisher v. Grimes

This bill is filed, by the administrator of Jesse S. Brown, to foreclose, the statutory mortgage, given by our laws, on a tract of land, sold by him under an order of the Probate Court of Yazoo county. It appears that Edrington, who became the purchaser at that sale, has since died, and the land was again sold, as his property; at which sale the present holders became purchasers, with full notice of the prior lien in favor of the complainants. It also appears that Mrs. Brown, the widow of Jesse S. Brown, claimed and had allotted to her dower in the land thus sold, and that Edrington afterwards purchased her dower right therein. Upon the death of Edrington, his widow claimed and had allotted her one third of the dower right so purchased by her husband from Mrs. Brown, and she now claims to have that right protected, under any decree that may be made in this case. It is clear that, by the purchase of the right of dower from Mrs. Brown, Edrington became thereby clothed with a vested fee simple title to the entire tract of land, and his whole estate in it became thereby subject to the operation of the statutory mortgage; Here was a union of the life estate and the estate in. remainder, in the same person — thus the *109former became completely merged in the latter. I take it to be well settled, that a purchase by a mortgagor of an outstanding title to the land, will enure to the benefit of the mortgagee. The widow would, perhaps, be entitled to dower in the equity of redemption of her husband, upon paying a ratable proportion of the money due on the mortgage.' But this she does not ask. She asks to be endowed of the life estate her husband purchased in the land, after the statutory mortgage took effect. I have already shown that this life estate became merged in the fee, and was thus made subject to the mortgage. But if it were possible to consider a life estate separate from the remainder, after they were both united in the same person, still it is evident that the widow could have no claim to dower in the life estate. The wife is dowable only, at common law, out of an estate of inheritance, of which the husband was seised, either at his death or during coverture ; and our statute has made no change in this particular. A mere life estate is not the subject of dower. Both the freehold and the inheritance must unite in the husband, in order to entitle the wife to dower. 4 Kent’s Com. 39. I am of opinion that the complainants are entitled 'to foreclose the mortgage against the claim set up to dower.

Let a reference be made, to ascertain the amount due on the purchase.