§ 191. Dower in lands exchanged. If a husband seized of an estate of inheritance in lands, exchanges them for other lands, his widow shall not have dower of both, but she must make her election, to be endowed of the lands given, or of those taken, in exchange; and if her election be not evinced by the commencement of an action to recover her dower of the lands given in exchange, within one year after the death of her husband, she is deemed to have elected to take her dower of the lands received in exchange.

Formerly section 171, Real Property Law of 1896, chapter XLVI, General Laws:

§ 171. Dower in lands exchanged. If a husband seized of an estate of inheritance in lands, exchanges them for other lands, his widow shall not have dower of both, but she must make her election, to be endowed of the lands given, or of those taken, in exchange; and if her election be not evinced by the commencement of an action to recover her dower of the lands given in exchange, within one year after the death of her husband, she is deemed to have elected to take her dower of the lands received in exchange.30

Section 171 was formerly 1 Revised Statutes, 740, section 3:

§ 3. If a husband, seised of an estate of inheritance in lands, exchanges them for other lands, his widow shall not have dower of both, but shall make her election, to be endowed of the lands given, or of those taken, in exchange; and if such election be not evinced by the commencement of proceedings to recover her dower of the lands given in exchange, within one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange.31

Comment. This section is declaratory of the common law,32 excepting the latter clause, which is new.33 It has been held that the word "exchange" in this section is to receive the same interpretation which was applied to it when used at common law.34 By the common law, exchange was a recognized original conveyance,3 35 the one in consideration of the other. The estates exchanged must be equal in quantity, not in value, but of interest, as fee simple for fee simple.36 Prior to the Statute of Frauds, neither livery of seisin nor a deed was necessary to an exchange, but it was exe

cuted by the entry of the parties.37 Since the Statute of Frauds the exchange must be by deed in writing,38 and this is so in New York, at least since the Revised Statutes.39 As all tenants in common have a right to demand partition and to equalize their shares by interchanging deeds, the wife's right to dower may fall under this section in such a case. A wife's inchoate title of dower is not paramount to the right of her husband's cotenant to compel partition.40

37 2 Black. Comm. 323.

38 Cruise, Dig., tit. 32, chap. 6, § 7. 39 2 R. S. 134, 6; § 242, Real Prop. Law; Huntington v. Huntington, 9 Code Civ. Proc. Rep. 182.

40 Huntington v. Huntington, 9 Code Civ. Proc. Rep. 182; Jordan v. Van Epps, 85 N. Y. 427. As to wife's election see under 201, infra.

§ 192. Dower in lands mortgaged before marriage. Where a person seized of an estate of inheritance in lands, executes a mortgage thereof, before marriage, his widow is, nevertheless, entitled to dower of the lands mortgaged, as against every person except the mortgagee and those claiming under him.

Formerly section 172, Real Property Law of 1896, chapter XLVI, General Laws:

§ 172. Dower in lands mortgaged before marriage. Where a person seized of an estate of inheritance in lands, executes a mortgage thereof, before marriage, his widow is, nevertheless, entitled to dower of the lands mortgaged, as against every person except the mortgagee and those claiming under him.41

Section 172 was formerly 1 Revised Statutes, 740, section 4:

§ 4. Where a person seised of an estate of inheritance in lands, shall have executed a mortgage of such estate, before marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged, as against every person except the mortgagee and those claiming under him.42

44

The Revised Statutes. This section of the Revised Statutes stated the pre-existing law of New York. Where a man, seised in fee of mortgaged land, marries and dies, his widow is entitled to dower out of the equity of redemption.43 In this State the equity of redemption has long been regarded as the legal estate, devisable by will, and alienable by deed, in all respects as if it were an absolute inheritance at law. The mortgagor was soon regarded as seised. of the estate, at least before foreclosure or entry, so as to entitle his widow to dower.45 For this reason the expression "mortgagor's equity of redemption" has been criticised as inapplicable to this country.46 But it seems to express aptly the continued right of an owner, who holds an estate subject to a mortgage, to redeem it. The departure of the New York law from the English law of

41 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

42 Repealed, chap. 547, Laws of 1895.

43 Note of Revisers to 1 R. S. 740, 4, citing Coles v. Coles, 15 Johns. 319; and see Smith v. Gardner, 42 Barb. 356; Denton v. Nanny, 8 id.

618; Ulrich v. Ulrich, 17 N. Y. St. Rep. 414.

44 Waters v. Stewart, 1 Cai. Cas. 47.

45 Hitchcock V. Harrington, 6 Johns. 290; Brackett v. Baum, 50 N. Y. 8, II.

46 Brief of counsel in Smith v. Gardner, 42 Barb. at p. 357.

mortgage, which treats a mortgage as a conveyance, confirms the widow's local right to dower in mortgaged lands of her husband.47

Section 192, Supra. But this section is not applicable to the case of a husband's purchase-money mortgage, where the seisin is transitory. That case falls under another section.4

47 See

citations Fowler's Hist. Real Prop. in N. Y., pp. 88, 121.

48 § 193, Real Prop. Law; Cunningham v. Knight, Barb. 399;

Mills v. Van Voorhies, 20 N. Y. 412,

417; Brackett v. Baum, 50 id. 8. Sed cf. Blydenburgh v. Northrop, 13 How. Pr. 289.

§ 193. Dower in lands mortgaged for purchase-money. Where a husband purchases lands during the marriage, and at the same time mortgages his estate in those lands to secure the payment of the purchase-money, his widow is not entitled to dower of those lands, as against the mortgagee or those claiming under him, although she did not unite in the mortgage. She is entitled to her dower as against every other person.

Formerly section 173, Real Property Law of 1896, chapter XLVI, General Laws:

§ 173. Dower in lands mortgaged for purchase money. Where a husband purchases lands during the marriage, and at the same time mortgages his estate in those lands to secure the payment of the purchase-money, his widow is not entitled to dower of those lands, as against the mortgagee or those claiming under him, although she did not unite in the mortgage. She is entitled to her dower as against every other person.49

Section 173 was formerly 1 Revised Statutes, 740, section 5:

§ 5. Where a husband shall purchase lands during coverture, and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming under him, although she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons.50 50

Comment. The original section of the Revised Statutes was conformed to Stow v. Tifft (15 Johns. 458), in which the court were divided; the chief justice being of the opinion that the husband's instantaneous seisin was sufficient to cause the wife's title of dower inchoate to attach and defeat the purchase-money mortgage to the extent of one-third of the land.51 The original section of the Revised Statutes determined that controversy in favor of the mortgagee.52

As to Other than Purchase-money Mortgagees. As to all others than the purchase-money mortgagees the wife has title of dower,53 and if the mortgagees enter the wife may redeem.54 The purchase

49 Repealed by Real Prop. Law of 1905, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

50 Repealed, chap. 547, Laws of 1896.

51 Revisers' note to I R. S. 740, $ 5.

52 Mills v. Van Voorhies, 20 N. Y. 412.

53 Bell v. Mayor of New York, 10 Paige, 49; De Lisle v. Herbs, 25 Hun, 485; but not over vendor's lien, see next page.

54 Bell v. Mayor of New York, 10 Paige, 49; House v. House, id. 158; Mills v. Van Voorhies, 20 N. Y. 412; McMichael v. Russell, 68 App. Div.

104.