Mayburry v. Brien. 15 P. different from its legal import. We must consider the property as conveyed in joint-tenancy; and the question arises, whether dower may be claimed in such an estate. Dower is a legal right, and whether it be claimed by suit at law, or in equity, the principle is the same. On a joint-tenancy, at common law, dower does not attach. Coke on Litt. lib. 1, c. 5, § 45. "It is to be understood, that the wife shall not be endowed of lands or tenements, which her husband holdeth jointly with another at the time of his death; and the reason of this diversity is, for that the joint-tenant, which surviveth, claimeth the land by the feoffment and by survivorship, which is above the title of dower, and may plead the feoffment made to himself, without naming of his companion that died." In 3 Kent's Com. 37, it is laid down, that the husband must have had seisin of the land in severalty at some time during the marriage to entitle the wife to dower. No title to dower attaches on a joint seisin. The mere possibility of the estate being defeated by survivorship, prevents dower. The same principle is in 1 Roll. Abr 676; Fitzh. N. B. 147; Park on Dower, 37; 3 Preston's Abstracts, 367. If the husband, being a joint-tenant, convey his interest to another and thus at once destroy the right of survivorship, and deprive himself of the property, his wife will not be entitled to dower. Burton on Real Property, 53; Co. Litt. 31. But it is insisted that the rule which denies dower in an estate of joint-tenancy, applies only in behalf of the survivor; and that, *if in this case the deed created a joint estate, the [ 38 ] plaintiff may claim, after the deed of release to her husband. At the time the deed to the Mayburry's for this property was executed by the executors, a mortgage on the property was given by the Mayburry's, to secure the payment of a large part of the purchasemoney. The deed bears a date prior to that of the mortgage; but the proof is clear that both instruments were delivered, and consequently took effect at the same instant of time. The time of delivery may be proved by parol. And it also appears that the deed to Willoughby Mayburry, and the mortgage from Thomas to him, were delivered at the same time. And here two questions arise, 1. Whether dower attaches where there has been only a momen tary seisin in the husband? Mayburry v. Brien. 15 P. 2. Whether, in Maryland, dower may be claimed in an equity of redemption? By the common law, dower does not attach to an equity of redemption. The fee is vested in the mortgagee, and the wife is not dowable of an equitable seisin. Dixon v. Saville, 1 Bro. Ch. Ca. 326; Co. Litt. 3; Stelle v. Carroll, 12 Pet. 205. This rule has been changed, in Maryland, by the 10th section of the act of 1818, c. 193, which gives dower in an equitable title under certain restrictions; and in many of the States a different rule obtains by statutory provision, or by a judicial modification of the common law. As the right of the complainant depends on conveyances prior to 1818, the above statute can have no effect upon it. As before stated, the mortgage was delivered by Willoughby Mayburry, at the same instant he received the deed from Thomas; and the question is, whether dower can be claimed by the wife on such a seisin of the husband? In his Commentaries, Chancellor Kent says, vol. iv. 38, 39, that "a transitory seisin for an instant, when the same act that gives the estate to the husband conveys it out of him, as in the case of the conusee of a fine, is not sufficient to give the wife dower; the same doctrine applies when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or [* 39 ] *to a third person, to secure the purchase-money, in whole or in part, dower cannot be claimed as against rights under that mortgage; the husband is not deemed sufficiently or beneficially seised by an instantaneous passage of the fee, in and out of him, to entitle his wife to dower as against the mortgagee." Of a seisin for an instant, a woman shall not be endowed. 1 Co. Litt. c. 5, § 36. This is the well-established doctrine on the subject. Holbrook v. Finney, 4 Mass. 566; Clark v. Munroe, 14 Mass. 352; Stow v. Tift, 15 Johns. 458. The plaintiff insists that the principle which excludes dower, in a case of a momentary seisin, applies only where the grantor acts in carrying out a naked trust. This position is not sustained by the authorities. In the case of M'Cauley et al. v. Grimes and wife, 2 Gill & Johns. 324, the court say: "Perhaps there is no general rule, in strictness, that in cases of instantaneous seisin, the widow shall or shall not be entitled to dower." And they say: "Where a man has the seisin of an estate beneficially for his own use, the widow shall be endowed." What may be a beneficial seisin in the husband, so as to entitle Houseman v. The Schooner North Carolina. 15 P. his widow to dower, may be a matter of controversy, and must lead to some uncertainty. But, in the language of Chancellor Kent, where a mortgage is given by the grantee, at the same time the conveyance of the land is executed to him, there is no such beneficial seisin in him as to give a right to dower. The incumbrances in this case exceed, it is believed, the value of the estate; and this being the case, the grantees could in no sense be said to be beneficially seised, so as to sustain the claim of the complainant. Upon the whole, the decree of the circuit court is affirmed. JACOB HOUSEMAN, Claimant, &c., Appellant, v. THE CARGO OF THE SCHOONER NORTH CAROLINA, OLIVER O'HARA, Agent, &c., Libellant. 15 P. 40. Though the master may compromise or refer a question of salvage, where he cannot consult his owners without injurious delay, yet his conduct will be closely scrutinized, and his contracts will not bind the owners, unless they appear to have been such as a discreet owner would have made in similar circumstances, and the burden is on those who set up his authority. If he referred to arbitrators, it must be shown that the referees were suitable persons, and their proceedings fair. If salvors collude with the master to defraud the owners, by means of an arbitration, they forfeit all their rights, and a court of admiralty has jurisdiction to reach and restore the property awarded. An amendment in an appellate court, cannot introduce a new subject of litigation. The agent of absent owners, may libel in his own name, as agent, or in the names of his principals. The valuation of property in a stipulation is binding in the appellate court. It is a substitute for the property. Coxe, for the appellant, and Downing, for the claimants. The facts are stated in the opinion of the court. *TANEY, C. J., delivered the opinion of the court. [ * 41 ] This case arises upon a proceeding in admiralty, originally instituted in the superior court of Monroe county, in the southern district of Florida, and afterwards carried to the court of appeals for that territory. It is brought here by appeal from the decision of the last-mentioned court. Several questions have been raised in the argument upon the form and manner of proceeding in the territorial courts, as well as upon the merits of the controversy; and it becomes necessary to state fully the facts in the record, in order to show the points in dispute, and the principles on which they are decided. Houseman v. The Schooner North Carolina. 15 P. The schooner North Carolina, George M'Intyre, master, [ 42 ] sailed from Appalachicola about the 9th of March, 1833, laden with cotton, and bound for Charleston in South Carolina. The cargo was shipped by William G. Porter, of Appalachicola, and consigned to J. & C. Lawton, of Charleston, part of it being shipped on account of the consignees, and part on account of Porter, with directions from him to sell his portion, as soon as the consignees thought it for his interest, and to credit the proceeds in his account. Upon the night of the 14th of March, being five days out, the vessel struck upon the Pickles Reef, which is about ninety-five miles from Key West. She was discovered on the next morning by the wrecking schooner Hyder Ally, Joshua B. Smith, master, who took from her deck one hundred and ten bales of cotton, when she floated; and both vessels sailed for the Indian Key, where they arrived the same evening. The North Carolina had grounded about twelve o'clock at night, and was got off at four o'clock in the afternoon of the following day. She sustained very little injury; not enough to have prevented her from proceeding immediately on her voyage. The weather was moderate while she was on the reef; and the Hyder Ally ran no risk, and encountered no hardship in assisting her, beyond the mere labor of taking off the portion of her deck load above mentioned, and carrying it to the Indian Key. It is stated, however, that the Pickles Reef is considered a dangerous one; that it came on to blow fresh about two hours after The North Carolina was relieved; and that she would probably have been lost if she had remained on the reef the ensuing night. The Indian Key is a small island of a few acres of land; and is about ten or twelve hours sail from Key West, where there is a port of entry, and a court of the United States having admiralty jurisdiction. It appears, by the testimony, that Houseman, the appellant, was the only man at the Indian Key who could have advanced money to M'Intyre to pay the salvage. He had a warehouse there, and owned a schooner which was employed in the wrecking business; and this vessel of Houseman's, in the language of the wreckers, consorted with The Hyder Ally, and with a sloop commanded by a man by the name of Packer; that is to say, these three vessels shared equally in the gains made by either of them. Houseman * [ 43 ] was therefore entitled to a proportion of whatever could be obtained for salvage from The North Carolina; and had It does not ap a direct interest in making it as large as he could. pear that he was engaged in any other business except that of wrecking on the Florida coast. Houseman v. The Schooner North Carolina. 15 P. Notwithstanding this interest of Houseman, he was appointed by M'Intyre, consignee of his vessel and cargo, as soon as he arrived at the Indian Key, and he charged and received commission to the amount of $156.45, for his services in arranging the question of salvage, on behalf of the owners. The evidence does not show whether M'Intyre was apprised of Houseman's connection with the salvors, and in so far as this case is concerned it is not necessary to inquire whether he was or was not aware of Houseman's interest. M'Intyre's conduct leads strongly to the conclusion that he was not deceived, and that he knowingly betrayed the interest of the owners. But he is no party to this dispute. The question is between the owners and Houseman, and certainly his claim would not be strengthened by showing that he concealed his interest from M'Intyre, and obtained his confidence by leading him to believe that he had no interest in the question of salvage. However this may be, M'Intyre was induced by some means or other to refer the matter to the arbitrament of two men, by the name of Otis and Johnson, who are described in the survey held on The North Carolina as shipmasters. But we have no account of the characters or standing of these men, nor of the nature of their business and pursuits at the Indian Key; nor have we any thing in the record to show how far their judgment and impartiality could be relied upon in the matter referred. The referees thus chosen awarded 35 per cent. on the vessel and cargo, and thereupon the cotton brought by The Hyder Ally, together with so much in addition from The North Carolina, as made up the number of 122 bales, were immediately landed and put into the warehouse of Houseman in payment of the salvage on the cargo, and M'Intyre gave Smith $100 in cash, and a draft on his consignees for $600 in payment of the salvage on the vessel; and it is said in the testimony that Houseman gave Smith the money for the draft. As soon as the affair of the salvage was * settled, [ 44 ] M'Intyre proceeded with The North Carolina on the voyage to Charleston. Upon his arrival there, however, it would seem that his consignees were not satisfied with what he had done; and on the 18th of May following, Oliver O'Hara, the present appellee, as agent for J. and C. Lawton, the consignees of the vessel, filed his libel on the admiralty side of the superior court for the southern judicial district of Florida, stating, generally, that a part of the cotton composing the cargo of The North Carolina had been taken from her while lying on the Florida Reef by the wrecking schooner Hyder Ally, Joshua B. Smith, master, which together with The North Carolina was carried into the |