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Ruth Cass versus Samuel Martin
May 1, 1832 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| May 1, 1832 | Ruth Cass versus Samuel Martin Current page | Opinion | Supreme Court | Reporter |
Ruth Cass versus Samuel Martin.
A widow may be entitled to dower in a right in equity to redeem lands moit-gaged,
But she can maintain no writ of dower against any person, who, liaving the rignt to redeem, has actually redeemed the land, until she has contributed her due portion of the mortgage debt., according to the value of her life estate.
This was a writ of dower, and was tried here, at November term, 1831, and a verdict taken, by consent, for the tenant, subject to the opinion of the court, upon the following* ease.
E. Webster, being owner c.f the premises, in which the said Ruth now claims her dower, on the 12th November. 1820. conveyed the same to B. Cass, then the 1ms-hand cf the demandant, in fee; and, at the same time, the said Ca-s reconvened the same promises to Webster, in fee and in morhguTe. Cass immediately cmcrod and condtmed to reside r.pon the preñase» unid April, 1828. when he then.
en ~he 3d June, 1 C23, Samuel Cro~5v \vas duly appoin~ ad administrator of the said Cass' mtate. nod. by deed. dated April 39. 1825, in;vhith it was ro~ited that the conveyance was made by virtue of a liceeco from the judge al probate, coove~ ed, to the tenant. all the rthht which th a said Sass ha~I. to redeem the land. The tcaant then 1 to Woh~tcr, th amount die upon C e m~rtgou~. It net annear ~hat the demardant had over o ~n tributed any thing, or offered to contribute any thing, towards the discharge of the mortgage.
Thompson and Bliss, for the demandant.
Bmdley and Joel Parker, for the tenant.
Richardson, C. J.,
delivered the opinion of the court.
It is very clear, in this case, that the husband had nothing in the land, during the coverture, except the equity of redemption. 4 Mass. Rep. 566, Holbrook v. Finney.
But when her husband died, this demandant was entitled to her dower in the equity of redemption. 5 N. H. Rep. 431, and the cases there cited. 5 Pick. 146, Gibson v. Crehore.
It is, however, certain, that a widow, entitled to dower in an equity of redemption, can maintain no writ of dower against the mortgagee or his assignees, until she has redeemed the land, by paying the amount clue on the mortgage. 5 Pick. 146, Gibson v. Crehore.
Nor can she maintain a writ of dower against any person, who, having the right to redeem the land, has paid the amount due on the mortgage, until she has contributed her due proportion of the money thus paid, according to her interest. 5 John. C. R. 482, Swaine v. Perine.
The mode in which the incumbrance upon her right of dower, in such a case, is to be removed, has not been settled in this state. But it seems to be a case within the equity of the statute of July 3, 1829, relative to the redemption of real estate mortgaged, and, probably, in cases where the matter could not be settled by agreement of the parties, it might be done upon a petition under the statute.
In this case, as the demandant has made no offer to the tenant to contribute her due proportion of there-demption money, there must be
Judgment oil the verdict.