Sarah Ann Messiter versus Alexander Wright, 16 Pick. 151

Shaw C. J. delivered the opinion of the Court. The argument for the defendant is this ; if the husband was seised of a legal estate, during the coverture, and the plaintiff did not join in the mortgage, then her inchoate right of dower was not bound by her husband’s mortgage, and so she has a complete and adequate remedy at law, as well against the mortgagee and his assignee, as all other persons.

And the Court are of opinion, that this view is correct; and as the statute gives a remedy in equity, in cases only where there is no plain, adequate and complete remedy at law, the bill cannot be sustained, unless it appears that there is no such remedy at law. It is now too late to maintain, that a widow is not entitled in some form to a right of dower in an equity of redemption. It is often a valuable right, as where a large estate is subject to a small incumbrance. Snow v. Stevens, 15 Mass. R. 278.

And this right she may pursue in equity, when she has no remedy at law, either by joining with the heirs, or others en titled to redeem, and contributing her just proportion of the mortgage debt, or alone, if they refuse to join with her. Gibson v. Crehore, 5 Pick. 146.

Where, therefore, the husband had nothing but an equity of redemption during the coverture, as where the husband’s estate was under mortgage at the time of the marriage, and so continued till his death, or where the wife joined in the mortgage, in either of these cases, her only remedy, against the mortgagee and those claiming under him, is in equity to redeem, either by paying her proportion of the mortgage debt, and obtaining a release of her third, or by paying the whole, if the mortgagee requires it, holding the whole, as against others entitled, for her security.

But it must appear affirmatively, by her bill, that her claim is thus reduced to a claim in equity to redeem, and that she has no remedy at law. As this does not appear in the present case, the demurrer must be supported.