Prior to the 11th of March, 1879, when the question of dower in an equity of redemption was governed by the statute 4 W. 4, c. 1, a widow had no claim to dower unless her husband died beneficially entitled, whether he had acquired the land subject to an existing mortgage or whether he had acquired the legal estate and subsequently made a mortgage in which his wife had joined to bar her dower (z). There was however a difference between the two cases with regard to the quantum of the dower. In the first case the dower was calculated on the value of the equity of redemption merely, whereas in the second case, unless the mortgage was made to secure payment of unpaid purchase money, dower. was calculated on the whole value of the land free from mortgage (a). “Where the mortgage has been given for the purchase money of the land, it is quite reasonable that the widow should only have dower in the value of the land after deducting the amount of the mortgage, for that was the extent of the beneficial interest of the husband (b).”
Since the 11th of March, 1879, the case of a husband acquiring land subject to an existing mortgage is still governed by 4 W. 4, c. 1 (c). The husband may defeat the claim to dower by conveying away the equity of redemption in his life-time and the widow has no claim to dower unless the husband dies beneficially entitled (d). If he dies so entitled dower is calculated upon the value of the equity of redemption merely.
(z) See Sec. 172, supra.
(a) Re Robertson, 1876, 24 Gr. 442; Re Robertson, Robertson v. Robertson, 1878, 25 Gr. 276, 486.
(b) Proudfoot, V.C., 25 Gr. at p. 501. See review of the early eases in Re Auger, 1912, 26 O.L.R. 402, 5 D.L.R. 680, and in an article by Shirley Denison in 49 C.L.J. 201, at pp. 205-6 (April 1, 1913).
(c) Now R.S.O. 1914, c. 70, s. 4. See Sec. 172.
On the other hand, the case where a husband acquires the legal estate and subsequently makes a mortgage in which his wife joins to bar her dower is governed by the statute 42 V. c, 22, as subsequently amended. The husband cannot defeat the widow’s claim to dower by conveying away the equity in his lifetime without her concurrence, and her claim to dower exists whether or not her husband dies beneficially entitled (e). The quantum of dower is also decided upon a different principle from that applicable to the case of a husband acquiring land subject to an existing mortgage.
The statute 42 V. c. 22, after providing (s. 1) that no bar of dower contained in any mortgage or other instrument intended to have the effect of a mortgage or other security, should operate to bar such dower to any greater extent than should be necessary to give full effect to the rights of the mortgagee or grantee (f), enacted (s. 2) as follows:
In the event of a sale of the land comprised in such mortgage or other instrument, under any power of sale contained therein or under any legal process, the wife of the mortgagor or grantor who shall have so barred her dower in such lands, shall be entitled to dower in any surplus of the purchase money arising from such sale, which may remain after satisfaction of the claim of the mortgagee or grantee, to the same extent as she would have been entitled to dower in the land from which such surplus purchase money shall be derived had the same not been sold.
There was some conflict of opinion as to the meaning of the statute. It was said in one case that the result was that dower was to be calculated in every case upon the surplus after satisfying the mortgage debt and not upon the whole value of the land (g). This was said, however, in a case in which the mortgage was given to secure part of the purchase money, and as applied to such a case the dictum is correct, but as applied to a case in which the mortgage was given to secure a loan, not being for part of the purchase money, the dictum was opposed to opinions expressed in earlier cases and was subsequently dissented from (h).
(d) See Sec. 173, supra.
(e) See Sec. 173, supra. (f) See Sec. 173, supra.
(g) Pratt v. Bunnell, 1891, O.R. 1.
In view of the conflict of opinion under the statute, and in accordance with what appeared to be the prevailing opinion as to the meaning of the statute as stated above, it was expressly provided in 1895 by the statute 58 V. c. 25, s. 3, that, except where the mortgage is for the unpaid purchase money of the land the amount to which [the widow] is entitled shall be calculated on the basis of the amount realized from the sale of the land, and not upon the amount realized from the sale over and above the amount of the mortgage only (i).
The foregoing provisions are now contained in the Dower Act, R.S.O. 1914, c. 70, s. 10, as follows:
10.- (1) No bar of dower contained in any mortgage or other instrument intended to have the effect of a mortgage or other security upon land shall operate to bar such dower to any greater extent than shall be necessary to give full effect to the rights of the mortgagee or grantee under such instrument.
(2) Where land comprised in such mortgage or other instrument is sold under any power of sale contained therein or under any legal process, the wife of the mortgagor or grantor who shall have so barred her dower in such land shall be entitled to dower in any surplus of the purchase money arising from such sale which may remain after satisfaction of the claim of the mortgagee or grantee, to the same extent as she would have been entitled to dower in the land from which such surplus purchase money shall be derived had the same not been sold and except where the mortgagor or other instrument is for the purchase money of the land, the amount to which she is entitled shall be calculated on the basis of the amount realized from the sale of the land, and not upon the amount realized from the sale over and above the amount of the mortgage only.
(h) Gemmill v. Nelligan, 1895, 26 O.R. 307; Re Hague, Traders Bank v. Murray, 1887, 14 O.R. 660; Re Croskery, 1888, 16 O.R. 207.
(i) It was also provided that “nothing in this section contained shall be construed to affect, by implication or otherwise, any question in the case of mortgages heretofore executed.”
The statute applies only to cases in which the mortgaged land has been sold under a power of sale in the mortgage or under legal process, but the principle mentioned in the statute for the calculation of dower should be applied in a case where the land has not been sold, that is to say, dower is to be calculated on the value of the land in excess of the mortgage if the mortgage was given to secure the husband’s debt for the unpaid purchase money of the land, and is to be calculated on the whole value of the land free from encumbrance if the mortgage was given to secure any other debt of the husband (j).
The testator in his lifetime purchased property subject to a $10,000 mortgage, which he assumed, but subsequently procured a new loan on the mortgage, in which his wife joined to bar dower, and paid the former mortgage off, the discharge being registered subsequent to the registration of the new mortgage. He afterwards made a further mortgage for $16,-500.58, in which his wife also joined to bar dower. Subsequently he entered into an agreement for the sale of the property, receiving $500 on account. The agreement was carried out by his executrix, the purchase money being applied in paying off the two mortgages, taxes, etc., leaving a balance. It was held that the wife was only entitled to dower out of the balance of the purchase money after satisfying the charges, and that the doctrine of conversion did not apply so as to defeat her claim to dower therein (k).
It is further provided by the Dower Act, ss. 11 and 12, as follows:
11.- (1) A mortgagee or other person holding any money out of which a married woman shall be dowable under the next preceding section may pay the same into the Supreme Court to the credit of such married woman and the other persons interested therein.
(j) Re Auger, 1912, 26 O.L.R. 402, 5 D.L.R. 680. (k) Re Williams, 1903, 9 O.L.R. 156.
(2) The Supreme Court or a Judge thereof may, on a summary application, make such order as may be deemed just for securing the right of dower of a married woman in any money out of which she shall be dowable.
12. A widow shall not be entitled to take her interest in money under section 10, and, in addition thereto, a share of the money as personal estate.
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