Hays v. Cretin , 102 Md. 695 ( 1906 )

This is a suit in equity brought in the Circuit Court of Frederick County by the appellee, the widow of John T. Cretin, deceased, against the appellant, as assignee of a mortgage from Cretin and wife, to Clayonia F. Maynard and Fanny Noonan, for an injunction to restrain the assignee from selling the mortgaged real estate and to enforce her equity of redemption, as the alleged owner of a dower interest in the land.

The injunction and the relief asked by the bill were granted by the Court below, and from a decree so granting the relief an appeal has been taken.

It will be necessary for us to briefly state the material facts, disclosed by the record, in order to obtain a clear and proper understanding of the case.

The bill avers, that John T. Cretin, of Frederick County, died intestate on the 6th of December, 1903, seized and possessed of a tract of land, situate in that county, containing 200 acres, more or less; that the appellee is his widow and as such is entitled to a dower estate in the land; that on May 24th, 1889, Cretin and his wife, executed a mortgage of this farm to secure the payment of two promissory notes dated the 24th day of May, 1889, payable five years after date and given by Cretin to Maynard and Noonan, each for the sum of two thousand dollars, and that the mortgage was subsequently assigned to the appellant. The mortgage debt being overdue, the appellant advertised the property to be sold at public sale on the 13th of February, 1904, to pay the mortgage debt.

The bill then avers that on the 10th of February, 1904, the appellee, as owner of the dower interest, offered to redeem the mortgage and tendered the defendant the sum of $4,300, in legal tender currency, in payment and redemption of the mortgage debt, interest and costs, but the defendant declined to accept the tender and refused to permit her to redeem.

The prayer of the bill, in addition to the prayer for general relief is, first, that the defendant may be enjoined and restrained by injunction from executing the power of sale contained in the mortgage, and from selling or assigning the mortgage debt, pending the proceedings, and second, that the appellees equity of redemption may be enforced and the defendant be required to accept the amount of the mortgage debt, interest and cost, so tendered and paid into Court and that the appellee may be subrogated to the rights of the mortgagee.

The defendant, in his answer, admits the allegations contained in the first, second and third paragraphs of the bill, but denies that the appellee has such a beneficial interest and estate in the mortgaged land as entitles her to redeem. The answer avers, that the alleged tender and offer to redeem, is not for the purpose of protecting any beneficial in the real estate, but is a fraudulent scheme on the part of the appellee to defeat and destroy the rights and interest of those who have a legitimate beneficial interest in and to the land, that the estate of the decedent is largely indebted on other claims, including a second mortgage in which the widow did not join, of $300, and an unsecured balance due and owing to the appellant.

The answer, then, avers, that to grant the relief prayed by the bill would defeat the appellant's rights as second mortgagee and creditor of the estate and would also destroy the interests of the heirs-at-law, and the other general creditors of the estate.

It appears, then according to the pleadings and the conceded facts of the case, the principal question raised for our consideration is, the legal right of the appellee the widow of Mr. Cretin, to redeem her interest in the equity of redemption from the first mortgage, in which she joined with her husband.

There can be no difficulty we think, as to the general proposition that a widow who has joined in a mortgage has the undoubted right to redeem, notwithstanding the fact, there has been no legal assignment of the dower. This proposition is well settled upon reason and authority, because of the wife's inchoate right of dower and of her interest in the estate.

In Jones on Mortgages, vol. 2, sec. 1067, it is said, that a widow who has joined in a mortgage in release of dower may redeem, for she is entitled to dower as against every person except the mortgagee and those claiming under him. She has an undoubted right to redeem although she has released her dower.And even a wife having only an inchoate right of dower may redeem land from a mortgage in which she has joined with her husband to release dower.

In Gatewood v. Gatewood and others, 75 Va. 413, the Court after citing a number of authorities to sustain the position, that a tenant in dower, may insist upon the redemption of a mortgage, says that the dower interest of the wife in the husbend's estate is such as entitles her to redeem, seems too clear for controversy. And it was also said, that it may be laid down as a rule, of almost universal acceptance that when there is a mortgage upon real estate, any person who has the right to redeem such mortgage and actually does redeem it, is entitled for his indemnity to be subrogated to the lien of the mortgage and to hold the land until he is reimbursed to the amount so paid.

The case of Davis v. Wetherel, 13 Allen 60, and Lamb v.Montague, 113 Mass. 352, are express decisions on this point.

In Mantz v. Buchanan, 1 Md. Chy. 156, the Chancellor said, there can be no doubt that a wife, notwithstanding she joins her husband in the mortgage may nevertheless take her dower in the lands subject to the mortgage and that she has a right to redeem and may call on the personal representatives of her deceased husband, to apply the personal assets to the extinguishment of the mortgage debt so as to free her dower from the incumbrance. And the doctrine enunciated by the Court in this case, is approved in Lynn v. Gephart, 27 Md. 567; Bank v.Owens, 31 Md. 327; Glenn v. Clarke, 53 Md. 603, McNeice v. Eliason, 78 Md. 176; Pomeroy Equity Juris., 1220; Story'sEquity Jurisprudence, vol. 2, sec. 1023.

But it is contended earnestly by the appellant, that the right of redemption in this case should be denied, because the husband in the year 1896, executed a second mortgage to the appellant for $300, by which he conveyed away his equity of redemption in the property, in question, and at the time of his death, he was not seized of such an estate, as the wife could be dowable.

The cases cited and relied upon by the appellant do not maintain the proposition asserted by him. In Bank of Commerce v. Owens, 31 Md. 325, this Court said: "But in this case, it must be remembered, the husband was seized of a legal title, upon which the wife's inchoate right of dower attached by the common law. And can it be said, that pledging this right to secure her husband's indebtedness, she thereby puts it in his power; or that of his creditor to defeat it altogether. To this view we cannot yield our assent. The husband may assign the equity of redemption, but no act of his could deprive the widow of the right to redeem, to which she is entitled under the common law."Glenn v. Clarke, 53 Md. 603.

The case of Smith v. Hall, 67 N.H. 200, is directly in point. In that case, the husband and wife executed a mortgage on certain lands to secure a note given by the husband to the Farmington Savings Bank for $641.78. Subsequently the husband executed a second mortgage in which the wife did not join, to secure a promissory note of $1,000. It was held, that the wife was entitled, on redeeming the bank mortgage, to hold the whole estate until the defendant shall repay her the amount of the mortgage, when she will be entitled to have a homestead assigned; that her right to the equity of redemption was not affected by the second mortgage to which she was not a party.

The right of the wife in the case at bar to redeem the land from the first mortgage in which she joined, notwithstanding the making of the second mortgage by her husband rests upon her contingent right of dower, and her interest in the land. She is entitled to exercise this right, in order to protect her dower interest and to prevent a sale of the property. It would be a useless right, indeed, if it could be defeated and destroyed by the bare making of a second mortgage, by the husband, without her uniting therein. In Pollard v. Noyse, 60 N.H. 184, it is held, that a sale of the equity of redemption by the husband did not defeat the wife's homestead right in that equity.

As to the contention, that the appellee should be required to pay the second mortgage and the open account due the appellant, we need only say, that these claims are not her debts, and she is not liable therefor. Brown v. Stewart, 56 Md. 431; Gelston v. Thompson, 29 Md. 595.

There can be no serious contention as to the tender made by the appellee. The tender was made in the bill and the money was paid into Court. The defendant by his answer refused to accept the money as tendered and denied the right of the appellee to redeem.

It will be seen, from what has been said, that we have disposed of all the questions determined by the decree.

We concur in the views expressed in the opinion of the Court below that "as to the interests of the heirs-at-law, they are not parties to the present proceeding and we do not see that we are required to consider their rights in the determination of the single question of the right of redemption as distinguished from that of subrogation."

As the view we have taken is decisive of the case the decree will be affirmed.

Decree affirmed with costs.

(Decided January 24th, 1906.)