
40 U.S. 21 (____)
15 Pet. 21
SUSAN MAYBURRY, APPELLANT,
v.
JOHN M'PHERSON BRIEN, AND OTHERS, APPELLEES.
Supreme Court of United States.

The case was presented to the Court on a printed statement, and a printed argument by Mr. Mayer, for the appellant; and was argued by Mr. Meredith and Mr. Nelson, for the appellees.
*35 Mr. Justice M`LEAN delivered the opinion of the Court.
This is a suit in chancery, which is brought before this Court, by an appeal from the decree of the Circuit Court of Maryland.
The complainant is the widow of Willoughby Mayburry, and claims dower from John Brien, who purchased an estate, designated the Catoctin Furnace, and all the lands annexed or appropriated to it. She also claims rents and profits from the death of her husband. This estate was conveyed by Catherine Johnson, Baker Johnson, and William Ross, as executors of Baker Johnson; to Willoughby, and Thomas Mayburry, by deed, dated the 5th March, 1812; and they executed a mortgage on the same, to receive the principal part of the purchase money The 9th March, 1813, Thomas Mayburry conveyed to Willoughby, his undivided moiety in the estate; and at the same *36 time, the grantee executed a mortgage on the estate, to secure the payment of the purchase money.
The answer admits the marriage of the complainant, prior to the execution of the conveyance and mortgage, in 1812; and the death of the husband, which occurred subsequently.
Brien having deceased, his heirs were made parties to the suit.
The Circuit Court dismissed the bill, and the counsel for the defendants ask the affirmance of that decree on two grounds.
1. Because the estate vested in Willoughby and Thomas Mayburry was a joint tenancy, and not subject to dower.
2. That the mortgage was executed by Willoughby Mayburry to Thomas, simultaneously with the delivery of the deed from Thomas to Willoughby, and that dower does not attach to a momentary seisin.
The counsel for the complainant insists, that the deed of the executors of Johnson to the Mayburrys, created a tenancy in common, and not a joint tenancy.
It is admitted that the terms of this deed import a joint tenancy; but it is insisted, 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 an estate 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 fixing the character of the estate.
In the case of Lake v. Craddock, 3 P. Wms. 159, the Court held that survivorship did not take place, where several individuals had purchased an estate, which was necessary to the accomplishment of an enterprise 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 when the jus accrescendi is never allowed. And in the case of Coles' Administratrix v. Coles, 15 Johns. Rep. 159, 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 receiving the consideration *37 money, was liable to the action of the other for his moiety. Thornton v. Dixon, 3 Brown's Ch. Rep. 199. Balmain v. Shore, 9 Ves. Jun. 500.
By a statute of Maryland, in 1822, ch. 262, joint tenancy is abolished; and it is contended, that this being the settled policy of the state, the Courts should give a liberal construction to conveyances prior to that time, 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 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.
On a joint tenancy, at common law, dower does not attach. Coke on Litt. lib. 1, ch. 5, sec. 45. "It is to be understood, that the wife shall not be endowed of lands or tenements, which her husband holdeth jointly with another at the time of his death; and the reason of this diversity is, for that the joint tenant, which surviveth, claimeth the land by the feoffment and by survivorship, which is above the title of dower, and may plead the feoffment made to himself, without naming of his companion that died."
In 3 Kent's Com. 37, it is laid down, that the husband must have had seisin of the land in severalty at some time during the marriage, to entitle the wife to dower. No title to dower attaches on a joint seisin. The mere possibility of the estate being defeated by survivorship, prevents dower. The same principle is in 1 Roll. Abr. 676. Fitzh. N.B. 147. Park on Dower, 37. 3 Preston's Abstracts, 367.
If the husband, being a joint tenant, convey his interest to another, and thus at once destroy the right of survivorship, and deprive himself of the property, his wife will not be entitled to dower. Burton on Real Property, 53. Co. Litt. 31b.
But it is insisted that the rule which denies dower in an estate of joint tenancy, applies only in behalf of the survivor; and that, *38 if in this case the deed created a joint estate, the plaintiff may claim, after the deed of release to her husband.
At the time the deed to the Mayburrys, for this property, was executed by the executors, a mortgage on the property was given by the Mayburrys, to secure the payment of a large part of the purchase money.
The deed bears a date prior to that of the mortgage; but the proof is clear that both instruments were delivered, and consequently took effect at the same instant of time. The time of delivery may be proved by parol.
And, it also appears that the deed to Willoughby Mayburry, and the mortgage from Thomas to him, were delivered at the same time.
And here two questions arise,
1st. Whether dower attaches where there has been only a momentary seisin in the husband?
2d. Whether, in 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 seisin. Dixon v. Saville, Bro. Ch. Ca. 326. Co. Litt. 3b. Stelle v. Carroll, 12 Peters, 205.
This rule has been changed, in Maryland, by the tenth section of the act of 1818, ch. 193, which gives dower in an equitable title under certain restrictions; and in many of the states a different rule obtains by statutory provision, or by a judicial modification of the common law. As the right of the complainant depends on conveyances prior to 1818, the above statute can have no effect upon it.
As before stated, the mortgage was delivered by Willoughby Mayburry, at the same instant he received the deed from Thomas; and the question is, whether dower can be claimed by the wife on such a seisin of the husband?
In his Commentaries, Chancellor Kent says, vol. iv. 38, 39, that "a transitory seisin 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. *39 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 seised by an instantaneous passage of the fee, in and out of him, to entitle his wife to dower as against the mortgagee."
Of a seisin for an instant, a woman shall not be endowed. 1 Co. Litt. ch. 5, sec. 36.
This is the well established doctrine on the subject. Halbrook v. Finney, 4 Mass. Rep. 566. Clark v. Munroe, 14 Mass. Rep. 352. Stow v. Tift, 15 Johns. Rep. 485.
The plaintiff insists that the principle which excludes dower, in a case of a momentary seisin, applies only where the grantor acts in carrying out a naked trust. This position is not sustained by the authorities.
In the case of M`Cauley et al. v. Grimes and wife, 2 Gill & Johns. Rep. 324, the Court say, "Perhaps there is no general rule, in strictness, that in cases of instantaneous seisin, the widow shall or shall not be entitled to dower." And they say, "Where a man has the seisin of an estate beneficially for his own use, the widow shall be endowed."
What may be a beneficial seisin in the husband, so as to entitle his widow to dower, may be a matter of controversy, and must lead to some uncertainty. But, in the language of Chancellor Kent, where a mortgage is given by the grantee, at the same time the conveyance of the land is executed to him, there is no such beneficial seisin in him as to give a right to dower.
The encumbrances in this case exceed, it is believed, the value of the estate; and this being the case, the grantees could in no sense be said to be beneficially seised, so as to sustain the claim of the complainant.
Upon the whole, the decree of the Circuit Court is affirmed.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.
