the Thirds of that which the Husband was seized of: And if a Term were in Being, no Feme was ever let in but after the Determination of that Term: That this is the first Pretence set up for a Dower in Equity. The Right is only to the Thirds of the Rent reserved upon any Term: And 'tis a new Thing to affirm, that there shall be one sort of Dower at Law, and another in Chancery. That 'tis, and always hath been, the common received Opinion of Westminster-hall, and of all Conveyancers, that a Term or Statute prevents Dower. That if a Purchaser can procure it, the same becomes his Defence: That this is what the Wisdom of our [71] Forefathers thought fit to use. And tho' some Mens reasoning may render it in Appearance as absurd: Yet the consequence of an Alteration will be much more dangerous than the Continuance of the old Rules. That tho' this Lady's Case be unfortunate, yet the Multitude of Purchasers, who have bought upon full Consideration, and have been advised, and still conceive themselves safe under this Law, will be more unfortunate, if the Law be broken. Then 'twas argued, That there could be no Equity in this Case, for it must be not only from the Party Appellant, but also against the Respondent, and that 'tis not, because he bought the whole: Her Portion, her Quality, and her being a Wife, create no Equity as to the Purchaser. 'Twould perhaps be prevalent against an Heir, but not against him. Here is no Fraud or ill Practice, &c. Then if the Nature of the Thing be considered, the Demand is of a Right, not arising by Agreement of Parties, but by Operation of Law. If the former, Chancery might perhaps construe and enlarge it, so as to fulfil the utmost Intention: But here, her Title is the Marriage, the Seisin, and Death of the Husband. And there never was a Time, when, if her Lord had died, she could have had immediate Dower; for even the Term had been pleadable by an Heir of Law to a Writ of Dower. Now what doth give her an Equity against the Respondent? Her Claim is by, from and under her Husband, as having a Right to a Proportion of what he had: That is a Right by Law. Where is the Equity that should improve or mend this Right? Perhaps it must be agreed, That if the Husband had just before Marriage made a long Lease on Purpose to prevent Dower, and the Woman expecting the Privileges which the Common Law gives to Women married had survived him, Equity might have interposed. And yet even this was practised by a Reverend Judge of Equity, Mr. Serjeant Maynard, who made such Lease to his Man Bradford the Day before his last Marriage. But here is no such Action, 'twas an old Term created by the old Earl of Warwick.
Decree of Dismission affirmed.—As to the Case of the Mortgages: The Feme intitled to Dower is let in, because the Person who is the Mortgagee hath no Interest but to have his Money; and Equity is to execute all these Agreements: But never where there is a Purchaser, or where the Interest of the Mortgage is assigned to the Heir. Between her self and the Mortgagee, she comes in Place of her Husband; and the Husband could redeem: And so may the Wife. But against a Purchaser she has no more Equity than her Husband had: And that is none at all. If she hath a legal Title antecedent to the Purchasers; as Marriage and Seisin, where there's no Term standing out, that shall prevail, and Equity shall not help the Purchaser against her: So where the Purchaser hath a legal Title; as by a Term precedent, Equity cannot relieve her. And whereas it was objected, That there was no Case adjudged in Chancery against the Appellant's Pretence; the Answer is plain, The Common Law is against it; and if no Precedent in Equity, the Common Law ought to stand. 'Tis nothing but Precedent that consecrates Half [72] the Decrees in Equity: And no Man will say, that ever any Woman was endowed in Equity of a Trust Estate. If a Man hath a Term for Ten thousand Years, and be intirely and properly Owner of it; tho' the same be equal in Value to a Fee-simple, for the Reversion after it is worth little or nothing; yet no Dower can be claimed in Equity. Nay, If the Husband be seized together with another Person, and not sole seized, yet no Dower, even in Chancery can be claimed against the Survivor. So that Equity doth not exceed the Rules of Law in advancing the Right of Dower. 'Tis true, unless Fraud be in the Case, (according to the Case of Nash and Preston in Cro. Car. 190, 191.) Relief in Equity shall not be given against a legal Title to Dower: Yet 'tis as True, that where the Law doth not give Dower, Equity will not, unless there be Fraud and Covin used to prevent it; and then common Reason enjoins a Court of Conscience to Relieve. If any
