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III.-MISCELLANEOUS CASES.

In the Supreme Court of the United States, January Term, 1841.

SUSAN MAYBURRY, APPELLANT, v. John M'PHERSON BRIEN AND

OTHERS, APPELLEES.

1. Where the words used in a conveyance import a joint tenancy, they will

not be construed to intend a tenancy in common, on the ground of the object of the conveyance, unless the nature and use of the property be shown

in evidence. 2. Dower is not demandable of an estate held in joint tenancy. 3. The principle, that a seizin for an instant only is not sufficient to lay a

foundation for dower, is not limited to cases in which the person seized

becomes so merely in carrying out a naked trust. 4. By statute, in Maryland, dower is allowed in equitable titles, under certain

restrictions.

This was an appeal from a decree of the circuit court of the United States, for the district of Maryland, dismissing the bill in a suit in equity for dower, brought by the appellant as the widow of Willoughby Mayburry, against John Brien, and, on his decease, revived against the present appellees, his heirs at law. :

The material facts, appearing by the bill and answer, and the testimony taken in the cause, were as follows. Certain real estate, designated as “the Catoctin Furnace and all the lands annexed or appropriated to it,” was sold by Catherine Johnson and others, as the executors of Baker Johnson, to Willoughby Mayburry and Thomas Mayburry, for the sum of thirty-two thousand dollars, part of which was to be paid on delivery of the deed, and the residue secured by a mortgage on the estate. A deed was accordingly prepared and executed and acknowledged by the executors, on the 5th of March, 1812, and retained by them to be delivered to the grantees, on their payment of the cash part of the purchase money, and the execution of a mortgage to secure payment of the residue. On the 19th of the same month, the grantees paid the money, executed a mortgage for the residue, and received the deed of the estate ; the delivery of the deed and mortgage, as was testified by

one of the grantors, being “simultaneous acts.” The mortgage was subsequently foreclosed, during the lifetime of the appellant's husband, and, under the decree of foreclosure, John Brien, the original respondent, became the purchaser of the estate. On the 9th of March 1813, and previous to the foreclosure, Thomas May. burry conveyed his undivided moiety in the estate to his cotenant, the appellant's husband, who, by a deed executed at the same time, mortgaged all his interest in the estate to his grantor as a security for the payment of certain obligations to him. The terms of the deed from the executors of Johnson to the Mayburrys imported a joint tenancy in them.

The case was argued by Mr. Mayer, for the appellant ; and by Messrs. Meredith and Nelson (with whom was Mr. Schley) for the appellees.

On the part of the appellees, the appellant's claim to dower was opposed on two grounds; first, that the conveyance to Willoughby and Thomas Mayburry created a joint tenancy in them, and, consequently, that the appellant's husband was never sole seized of the legal title in the estate ; and, second, that his seizin, if sole, was merely for an instant.

On the part of the appellant, it was argued : first, that the deed to the Mayburrys, although in terms importing a joint tenancy, must be construed to create a tenancy in common, inasmuch as the property conveyed was a furnace establishment and land incident and subservient thereto ; and it is settled that real estate conveyed to several parties for partnership purposes, or which is useful only for some business, is held by the parties as tenants in common, and not as joint tenants ; second, that the rule relating to dower in case of joint tenancy is only applicable on behalf of the survivor, and to prevent any interference with his enjoyment of the estate, and, consequently, that if the estate conveyed to the Mayburrys was a joint tenancy, the appellant's claim to dower therein can only be objected to by the other joint tenant, who is estopped from so doing by his release to her husband ; and, third, that the principle, that a seizin for an instant only is insufficient to establish a title to dower, must be restricted to cases in which the party so seized acts simply

as an instrument in carrying out a naked trust, and ought not to be applicable to cases in which any interest, immediate or contingent, attaches to the grantee under the conveyance.

The opinion of the court was delivered, in substance, as follows, by

Justice M'LEAN. The decree of the circuit court, dismissing the bill in this case, is sought to be affirmed, on the ground, that as the conveyance to the Mayburrys created a joint tenancy, the complainant is not entitled to dower, unless, by the conveyance of Thomas Mayburry to her husband, the latter became sole seized ; and that as the mortgage back to Thomas was simultaneous with the conveyance by him, the seizin of Willoughby was for an instant only, and consequently insufficient to support a claim to dower.

The counsel for the complainant, admitting that the terms of the conveyance from the executors of Johnson to the Mayburrys import a joint tenancy, insist, nevertheless, that the nature of the property, and the circumstances of the parties, show a tenancy in common; that real estate conveyed for partnership purposes constitutes a tenancy in common; and that the conveyance of this furnace, and the land incident to it, was for manufacturing purposes, and comes within this definition. No evidence being given on the subject, the counsel relies upon the above considerations, as sufficient to fix the character of the estate.

In the case of Lake v. Craddock,' the court held that survivorship did not take place, where several individuals had purchased an estate, which was necessary to the accomplishment of an enterprize in which they were engaged ; that the payment of the money created a trust for the parties advancing it; and that as the undertaking was upon the hazard of profit or loss, it was in the nature of merchandising, in which the jus accrescendi is never allowed : and, in the case of Coles v. Coles ? it was decided, that when real estate is held by partners for the purposes of the partnership, they hold it as tenants in common; and that on a sale of the land, one of the partners, re

1 3 Peere Williams, 159.

? 15 Johns. Rep. 159.

ceiving the consideration money, was liable to the action of the other for his moiety.'

In Maryland, joint tenancy is abolished by law; and it is argued, that this being the settled policy of the state, a liberal construction ought to be given to conveyances prior to that time, in order to guard against the inconvenience and hardship, if not injustice, of that tenancy. Whether this estate was purchased by the Mayburrys, for the purpose of manufacturing iron, for speculation, or for some other object, is not shown by the evidence ; and it would be dangerous for the court, without evidence, to give a construction to this deed, different from its legal import. We must, therefore, consider the property as conveyed in joint tenancy; and the question arises whether dower may be claimed in such an estate.

Dower is a legal right, and whether it be claimed by suit at law, or in equity, the principle is the same. The rule is, that “the wife shall not be endowed of lands or tenements, which her husband holdeth jointly with another at the time of his death ; "3 but it is insisted that this rule applies only in behalf of the survivor ; and, that if in this case the deed created a joint estate, the complainant may, notwithstanding, claim in virtue of the deed of release to her husband from the other joint tenant. At the time, when the deed of the estate in question was made to the Mayburrys, a mortgage was given by them to the grantors, to secure the payment of a portion of the purchase money; and, although the deed bears a date prior to that of the mortgage, both instruments were delivered and consequently took effect at the same time. The deed by Thomas Mayburry to Willoughby, and the mortgage of the latter tò the former, were also executed and delivered simul. taneously. Two questions, then, arise : first, whether dower altaches, where there has been only a mom

mentary seizin in the hus.

· Thornton o. Dixon, 3 Brown's Ch. Rep. 199; Balmain o. Shore, 9 Vesey, jr. 500.

· Statute of 1822, ch. 262.

: Co. Litt. 31 b; 3 Kent's Comm. 37; 1 Roll. Abr. 676; F. N. B. 147; Park on Dower, 37; 3 Preston on Abstracts, 367 ; Burton on Real Property, 53.

band ; and, second, whether, according to the laws of Maryland, dower may be claimed in an equity of redemption.

By the common law, dower does not attach to an equity of redemption ; the fee is vested in the mortgagee, and the wife is not dowable of an equitable seizin ;' but, in Maryland, by an act passed in 1818,which gives dower in an equitable title under certain restrictions, the common law rule has been changed ; and, in many of the other states, a similar change has been effected either by statutory enactment, or by a judicial modification of the common law. The right of the complainant, however, depends on convey. ances executed prior to the year 1818, and, consequently, is not affected by the statute passed in that year.

The mortgage by Willoughby Mayburry to Thomas, as has already been stated, was delivered at the same instant that he received the deed from Thomas; and the question is, whether dower can be claimed by the wife on such a seizin of the husband ? 3

In reference to this question, the rule, as laid down by chancellor Kent, is, that “a transitory seizin for an instant, when the same act that gives the estate to the husband conveys it out of him, as in the case of the conusee of a fine, is not sufficient to give the wife dower; the same doctrine applies, when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase money, in whole or in part, dower cannot be claimed as against rights under that mortgage ; the husband is not deemed sufficiently or beneficially seized by an instantaneous passage of the fee, in and out

Dixon o. Saville, Bro. Ch. Cases, 326; Co. Litt. 36; Stelle o. Carroll, 12 Peters, 205.

? Statutes of 1818, ch. 193.

• As the Mayburrys, at the time of this conveyance by Willoughby to Thomas, were joint tenants of an equity of redemption only, and the court had just decided, that dower could not be claimed in Maryland of an equity of redemption, acquired previously to 1818, it would seem to be entirely superfluous to inquire, whether the seizin of Willoughby was sufficient to entitle the complainant to dower; inasmuch, as if the seizin had been sufficient, the estate itself was of such a nature, that she could not have been endowed of it. ED. JUR.

* 4 Kent's Comm. 38, 39.

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