Annie Fitcher v. Edward L. Griffiths and others

Citation: Supreme Judicial Court of Massachusetts, October 27, 1913 (decision November 25, 1913). Opinion by Rugg, C.J.

Factual and Procedural Background

The suit seeks to enjoin foreclosure of a mortgage given in 1898 by defendant Ezekiel Fitcher, in which his wife, the plaintiff Annie Fitcher, joined and released her dower rights. The mortgage note, originally $8,500, had been reduced and by 1912 $1,300 was due. That note was assigned to defendant Griffiths (who furnished no actual consideration) and later to defendant Mills, Mills having furnished the consideration at request of Fitcher's attorney. In 1911 a Probate Court decree found the plaintiff living apart from her husband for justifiable cause and ordered him to pay a weekly allowance. The husband intends an actual sale by foreclosure so title may be transferred without further release of dower. The plaintiff lacks means except through friends to pay what is due on the mortgage.

A final decree by Sanderson, J., permitted the plaintiff thirty days to pay Mills the $1,300 with interest from May 9, 1912, and awarded costs to the plaintiff; the plaintiff appealed. The bill was brought to prevent foreclosure and the extinguishment of her inchoate dower.

Legal Issues Presented

Whether, notwithstanding St. 1900, c. 450, § 5 (now R.L. c. 132, § 1), a wife may maintain a bill in equity to redeem real estate in which she has an inchoate right of dower.
Whether a wife who releases her inchoate dower by joining in a mortgage to secure her husband's debt is, in relation to that debt, analogous to a surety and therefore entitled to subrogation if she pays the debt.
Whether, to avoid circuity of remedy, a court of equity may, in a suit by the wife, order the husband to pay the mortgagee the amount due and require the mortgagee on receipt of payment to deliver the note and discharge the mortgage (rather than requiring the wife to pay and then enforce subrogation against the husband).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Davis v. Wetherell, 13 Allen, 60.	That a wife may maintain a bill to redeem real estate in which she has an inchoate dower.	Used to support the proposition that the plaintiff may maintain a bill to redeem and has the right to pay the debt and free the estate from the mortgage lien.
Lamb v. Montague, 112 Mass. 352.	That a wife may maintain a bill to redeem real estate in which she has an inchoate dower.	Relied on with Davis v. Wetherell to establish the wife's right to redeem despite statutory provisions.
Downey v. King, 201 Mass. 59.	Interpretation of St. 1900, c. 450, § 5 (now R.L. c. 132, § 1) concerning waiver of widow's dower by failure to elect.	Cited to show that the reasons supporting the wife's equitable right to redeem remain despite the statute.
Bullard v. Briggs, 7 Pick. 533 at 538.	Definition and characterization of inchoate dower as a valuable contingent interest.	Quoted to describe the inchoate right of dower as more than a possibility and frequently the subject of contract.
Mason v. Mason, 140 Mass. 63.	Characterization of dower as "a vested right of value, dependent on the contingency of survivorship."	Referenced as an authority describing the nature of dower for purposes of treating it as property.
Flynn v. Flynn, 171 Mass. 312.	Expressed doubt about calling dower strictly "vested."	Noted to qualify the technical description of dower while still treating it as a valuable interest.
Shearer v. Ranger, 22 Pick. 447.	That inchoate dower is an encumbrance upon land.	Applied to characterize the wife's inchoate dower as an encumbrance, supporting protection of that interest.
Holmes v. Winchester, 133 Mass. 140.	That a release of dower is a good consideration for a promise.	Used to support the proposition that release of dower is valuable and may be treated like other security given for a debt.
Burns v. Lynde, 6 Allen, 305.	That dower is protected by the courts during coverture.	Invoked to show courts protect the wife's dower interest while she is under coverture.
Savage v. Winchester, 15 Gray, 453.	That a surety who pays a debt is entitled to subrogation to the securities deposited by the debtor with the creditor.	Applied to the wife's position when she releases dower or mortgages separate property to secure husband's debt—she stands as a surety and is entitled to subrogation.
Browne v. Bixby, 190 Mass. 69.	Principle of subrogation where one pays the debt of another.	Used with Savage v. Winchester to support subrogation rights of the wife who pays her husband's debt.
Lombard v. Morse, 155 Mass. 136, 140.	That equitable jurisdiction may adjust conflicting property rights between husband and wife despite inability to bring actions at law between them.	Cited for the proposition that equity can adjust property claims between spouses.
Frankel v. Frankel, 173 Mass. 214.	Equity's power to adjust property relations of husband and wife.	Relied upon to show equity's jurisdiction to resolve the parties' conflicting property rights.
Patterson v. Patterson, 197 Mass. 112, 117.	Equitable adjustment of property rights between husband and wife.	Referenced to support equitable relief between spouses.
Woodard v. Woodard, ante, 1.	Equity's role in adjusting spouses' property relations (as a contemporary authority cited).	Used in the same group of authorities establishing equity's jurisdiction to adjust such rights.
Kerse v. Miller, 169 Mass. 44, 48.	That a mortgagee cannot be compelled to assign his mortgage; he is obliged only to accept payment in full and surrender his security.	Applied to explain that Mills cannot be forced to assign the mortgage but must accept payment and surrender the security.
Crosby v. Clem, 209 Mass. 193.	That after paying note and mortgage and receiving surrender, the payer can demand payment of the debtor and transfer a good title enforceable against the debtor.	Used to show that, upon paying and receiving surrender, the plaintiff could enforce the husband's personal liability and pursue equitable remedies.
Newell v. Hadley, 206 Mass. 335, 340.	Where A's money (not a pure volunteer) has been used to extinguish the obligation of B, equity will enforce against B for A's benefit the obligations of B's creditors paid with A's money.	Cited to justify enforcing the husband's obligation for the benefit of the wife who would be subrogated after payment; the court used this principle but adopted a more direct remedy to avoid circuity.

Court's Reasoning and Analysis

The court proceeded in this sequence:

Confirmed that established authority permits a wife to maintain a bill to redeem real estate in which she has an inchoate right of dower; she has the right to pay the debt and remove the mortgage lien (citing Davis v. Wetherell and Lamb v. Montague).
Explained that the statutory provision (St. 1900, c. 450, § 5, now R.L. c. 132, § 1) deeming dower waived unless timely elected does not defeat the equitable reason for permitting a bill to redeem; the inchoate right remains a protected, valuable interest.
Analyzed the nature of inchoate dower as a property interest—an encumbrance on land, capable of release and of being treated as consideration—citing authorities (Bullard v. Briggs, Mason v. Mason, Shearer v. Ranger, Holmes v. Winchester, Burns v. Lynde) to justify treating the wife's release as a substantial relinquishment of property.
Analogized the wife's release of dower (or mortgaging of separate property) to the position of a surety for the husband's debt; applying the rule that a surety who pays is entitled to subrogation to the creditor's securities (citing Savage v. Winchester; Browne v. Bixby).
Addressed enforcement: although the wife may be subrogated upon paying, equity can and does enforce rights between spouses that cannot be litigated at law; the court cited authorities establishing equity's jurisdiction to adjust such rights (Lombard v. Morse; Frankel v. Frankel; Patterson v. Patterson; Woodard v. Woodard).
Noted practical limits: the mortgagee (Mills) cannot be compelled to assign the mortgage; his obligation is to accept full payment and surrender the security (Kerse v. Miller).
Observed that if the plaintiff paid and obtained surrender of the note and mortgage she could demand payment from her husband and enforce it in equity (Crosby v. Clem). Equity also can enforce the husband's obligation to the creditor for the plaintiff's benefit (Newell v. Hadley), but pursuing actual payment by the wife and then subrogation would be a circuitous route.
Given all parties are before the court and the husband appears to have sufficient resources, the court concluded the simpler, direct equitable remedy is to order the husband to pay the mortgagee the amount due with interest and costs, and to require the mortgagee upon receipt to deliver the note and discharge the mortgage—thus protecting the wife's rights without requiring her to first pay and then litigate subrogation.

Holding and Implications

Holding: The court reversed the decree below and directed that a new decree be entered ordering the defendant Fitcher to pay to the defendant Mills the amount due upon the note with interest and costs of foreclosure, and ordering Mills upon such payment to deliver to Fitcher the note and mortgage and that the mortgage be discharged.

Implications:

Direct effect: The plaintiff may maintain a bill in equity to redeem the mortgaged real estate in which she has an inchoate dower, and the court may order the husband to pay the mortgagee and require surrender and discharge of the mortgage to protect the wife's equitable rights.
Remedial principle: A wife's release of dower to secure her husband's debt places her in a position analogous to a surety; if she pays the debt she will be subrogated to the mortgagee's rights, and equity may enforce the husband's personal liability for the benefit of the wife.
Procedural consequence: To avoid circuity and unnecessary expense, equity may provide the direct remedy of compelling the husband to satisfy the mortgage rather than requiring the wife to pay and then seek subrogation.
Scope of precedent: The court framed this outcome as an application of well-recognized equitable principles to the parties' circumstances rather than as an expansion of legal rules beyond established doctrines.

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ANNIE FITCHER vs. EDWARD L. GRIFFITHS others.

Dower. Husband and Wife. Mortgage, Of real estate. Equity Jurisdiction, To redeem mortgage of real estate, Subrogation, To avoid circuity of remedy.

Notwithstanding the provision of St. 1900, c. 450, § 5, now R.L.c. 132, § 1, to the effect that a widow's right of dower shall be deemed to have been waived unless she files within a limited time an election to claim it, a wife still may maintain a bill in equity to redeem from a mortgage real estate in which she has an inchoate right of dower.

Where a wife releases her right of dower in certain real estate by joining in a mortgage of the real estate to secure a debt of her husband, she in relation to his debt is in a position analogous to that of a surety, and, if she pays her husband's debt to redeem the real estate from the mortgage, she is subrogated to the rights of the mortgagee, and such rights against her husband will be enforced for her benefit in equity; and, to avoid circuity of remedy, instead of obliging the wife to pay off the mortgage and enforce her right of subrogation, the husband, in a suit in equity brought by his wife, will be ordered to pay to the mortgagee the full amount due upon the mortgage note with interest, and the mortgagee will be ordered upon receiving such payment to deliver the note to the husband and discharge the mortgage.

RUGG, C.J.

This is a suit to enjoin the foreclosure of a mortgage given in 1898 by the defendant Ezekiel Fitcher, in which his wife, the plaintiff, joined releasing her rights. The note secured by this mortgage, originally for $8,500, had been reduced from time to time, so that in 1912, when it was assigned to the defendant Griffiths, $1,300 was due upon it. The consideration for this assignment was furnished by the defendant Mills at the request of the defendant Fitcher's attorney, Griffiths having no actual interest in the transaction. Since the filing of this bill the mortgage has been assigned to the defendant Mills. In 1911 a decree was entered in the Probate Court to the effect that the plaintiff was living apart from her husband for a justifiable cause, and ordering him to pay her a weekly allowance. It is the intention of the defendant Fitcher to have an actual sale made by foreclosure of the property in question (which is the home where the plaintiff and three of the children of herself and the defendant Fitcher reside) and that thus title may be transferred without further release of dower by the plaintiff. The defendant Fitcher has property of considerable value other than the real esate here in question. The plaintiff is able only through the assistance of friends to pay whatever may be due upon the mortgage.

A final decree was made by Sanderson, J., ordering that the plaintiff be permitted within thirty days to pay the defendant Mills the $1,300 due on the mortgage with interest at the rate of five per cent per annum from May 9, 1912, and that the defendants pay to the plaintiff the costs of the suit. The plaintiff appealed.

It is plain that a wife may maintain a bill to redeem from a mortgage real estate in which she has an inchoate right of dower. She has a right to pay the debt and free the estate from the mortgage lien. Davis v. Wetherell, 13 Allen, 60. Lamb v. Montague, 112 Mass. 352. The reason upon which these decisions rest still obtains notwithstanding the provisions of St. 1900, c. 450, § 5, now R.L.c. 132, § 1, to the effect that the dower of a widow shall be deemed to be waived unless she files an election to claim it in the registry of probate within a limited time. See Downey v. King, 201 Mass. 59. An inchoate right of dower is a kind of property with incidents sui generis. It is (as was said by Chief Justice Parker in Bullard v. Briggs, 7 Pick. 533 at 538) "a valuable interest, which is frequently the subject of contract and bargain. . . . It is more than a possibility, and may well be denominated a contingent interest." It has also been referred to as "a vested right of value, dependent on the contingency of survivorship," Mason v. Mason, 140 Mass. 63, though the strict accuracy of calling it "vested" has been doubted in Flynn v. Flynn, 171 Mass. 312. But whatever its precise technical description may be, it is an incumbrance upon land, Shearer v. Ranger, 22 Pick. 447, its release is a good consideration for a promise, Holmes v. Winchester, 133 Mass. 140, and it is protected by the courts during coverture, Burns v. Lynde, 6 Allen, 305. Therefore, where a wife releases her dower right by joining in a mortgage to secure a debt of her husband, she stands in a position analogous to a surety for his debt. A wife, who has mortgaged her separate estate to secure her husband's debts, is entitled to exoneration out of her husband's estate. The release of a dower right for the same end stands on the same basis. It is familiar law that when a surety pays a debt of his principal he is entitled to be subrogated to the benefit of the securities deposited by the debtor with the creditor. This rule applies to a wife who has become surety for her husband as well as to others. Savage v. Winchester, 15 Gray, 453. Browne v. Bixby, 190 Mass. 69. There is no distinction in reason between the mortgage by a wife of her separate property to secure her husband's debt and her release of her inchoate right of dower for the same purpose. In each case she parts with a valuable property interest for the benefit of his creditor. The same degree of relief should be afforded her in each case.

Although no action at law can be maintained between husband and wife, their conflicting rights touching property may be adjusted in equity. Lombard v. Morse, 155 Mass. 136, 140. Frankel v. Frankel, 173 Mass. 214. Patterson v. Patterson, 197 Mass. 112, 117. Woodard v. Woodard, ante, 1. Therefore in equity the plaintiff may secure enforcement of her rights by subrogation if she pays the indebtedness of her husband to the defendant Mills as the holder of the note and mortgage. Mills cannot be compelled to assign his mortgage. Kerse v. Miller, 169 Mass. 44, 48. He is only obliged to accept payment in full and surrender his security. The plaintiff being entitled to redeem, if she pays, she is entitled to the securities held by the defendant Mills. He holds the note which is the primary obligation of the defendant Fitcher and the mortgage. In equity both of these may be kept alive and enforced for the benefit of the plaintiff. Even at law they would be kept alive in her hands and after his decease she could enforce them against his estate, and during his life she may transfer a good title to third persons who may enforce them against him directly. Crosby v. Clem, 209 Mass. 193. Equity gives the right of present enforcement if this is necessary in order to protect the rights of all parties. The plaintiff after paying the note and mortgage and having them both surrendered to her, forthwith could demand payment of her husband. This demand could be enforced in equity by foreclosure of the mortgage. But it is to prevent a foreclosure and the consequent extinguishment of her dower that this bill is brought. A part of the security of the defendant Mills to which she would be subrogated in the event of payment of the note by her would be the personal liability of the husband on the note. In order that the rights to which she would be subrogated may not be barren of benefit to her it would be necessary to enforce this personal liability in equity. As was held in substance in Newell v. Hadley, 206 Mass. 335, 340, it is the law that where the money of A (not a pure volunteer) has been used to extinguish the obligation of B, equity will enforce against B for the benefit of A the obligation of B's creditors paid with A's money. This, however, would be a circuitous route by which to afford relief to the plaintiff upon the circumstances disclosed on this record. All the parties are now before the court. It appears that the husband is possessed of sufficient resources. The simple and direct method is to order the defendant Fitcher to pay to the defendant Mills the amount of the mortgage and interest. We do not perceive that any substantial rights of the husband will be adversely affected by pursuing this undeflected course. The same result will be accomplished in one way as in the other. It will save the parties the employment of much legal machinery and some unnecessary expense. It is not encroaching upon the plain rule which prohibits actions at law between husband and wife. It is merely applying well recognized principles of equity jurisprudence to the working out of a novel problem affecting the property relations of husband and wife.

A decree may be entered directing the defendant Fitcher to pay to the defendant Mills the amount due upon the note, with interest and costs of foreclosure, and the defendant Mills to deliver to him the note and mortgage upon such payment, and that thereupon the mortgage be declared discharged.

Decree reversed, new decree to be entered in accordance with this opinion.

FITCHER v. GRIFFITHS