
    Mrs. Sarah Rickard v. Thomas Talbird.
    Complainant sought by her bill, to set up and enforce a mortgage, which had been assigned to her by the mortgagee, one Givens, against the defendant a subsequent purchaser of the property in possession. It appeared that complainant was entitled, as a legatee, to a share of the estate of one George Stevens, of which Givens was the executor, and that the mortgage (to which a renunciation of the complainant’s right of dower in the premises was annexed) was executed by the complainant’s husband for the sum of $1,400 advanced to him by the executor, on account of his wife’s legacy, and that it was intended to -protect the executor from any liability if it should not be recognized as a valid payment on that account. By subsequent proceedings in a cause in the court of equity to which, among others, the present complainant and Givens, were parties, the advancement of this money to Rickard was adjudged to be a payment of the legacy to Mrs. Rickard. Held, that the mortgage was without foundation or support, and that it could not be set up or enforced either in the hands of the mortgagee Givens, nor in those of the complainant to whom it had been assigned.
    A renunciation of dower is not, it seems, so much a conveyance as it is a bar of the wife’s claim, to attend the conveyance of the husband; to endure while that endures, and cease to operate when that expires. So where mortgaged lands are sold under a mortgage, whereupon dower has been released, the purchaser takes not only the fee, but the dower also; but where a mortgagees satisfied by payment of the debt, the dower reverts to the wife eo instanii: So if a mortgage ceases to operate or never begins to operate, the dower remains with the wife or returns to her (as the case may be) without the necessity of a reconveyance to her.
    
      The right to dower accrues upon the death of the husband, but the course of our decisions has been to date the running of the statute of limitations not from the accrual of the right, but from the accrual of the right of action for its assertion. So that the statute does not begin to run, until there is a possession in some one adverse to the claimant of dower.
    A claimant in this court who establishes her right to dower, against a purchaser in possession, is also entitled to an account for a third of the rents and profits of the lands for the time he has been in possession.
    
      Before JOHNSTON, Chancellor, at Beaufort, Jan. Term, 1838.
    This case came up on an appeal on the part of the complainant from the decree of his honor, the chancellor. A brief of the bill and answer, and a full statement of the evidence is given, to which the decree of the chancellor is annexed, as ne'cessary to a proper understanding of the case :
    “ The bill states, that one George Stevens, of St. Helena parish, being possessed of a very considerable real and personal estate, by his last will, bearing date 3d June, 1813, bequeathed the whole of his negroes to complainant, and sixteen other persons, equally to be divided among such of them as “ should be living at the time of the division, and not otherwise; ” and directed the division to take place as soon as his debts were paid; and appointed Charles Givens and two other persons his executors ; that the testator departed this life in February, 1817, and in March of the same year, by consent of such of the said legatees as were then of full age, (complainant being then an infant,) and before the payment of the debts of the said George Stevens, a sale of the negroes, and a partial division of the property, was made; but nothing was ever paid, on account of her share, to complainant, while she continued sole, and unmarried.
    The bill further states, that complainant intermarried with William S. Rickard, on the day of , 1818, and that shortly after, to wit: on the 7th October, 1818, he, the said William S. Rickard, purchased, in fee of one John Cole, for the sum of about #2,000, three several lots of land, with the buildings thereon, in the town of Beaufort, to wit: Lot No. 19, and the low water lot and wharf, in front of No 19, and part of lot No 50; and paid in cash the sum of $1,400, and gave his bond, secured by a mortgage of said lots, &c., to the said John Cole, for the balance of the purchase money; and on the day after, viz., 8th October, 1818, in consideration of the sum of $1,400, paid and loaned to him, the said William S. Rickard, by one Charles Givens, the said William executed another bond and mortgage of the same premises to said Charles Givens, conditioned only for the payment of the said $1,400, and interest, on or before the 1st March, 1819: but upon the back of the said mortgage deed, the following words, in the handwriting of William Joyner, Esq., not dated, or signed by any one, were written, to wit: “ The within mortgage is intended to bear harmless, or make whole the said Charles Givens, executor as aforesaid, in case any thing should vitiate or deprive the said William S. Ric.kard of his claim to said estate, in right of his wife.” And-on each of the said mortgage deeds, complainant, within a few days after their execution, renounced in due form of law, her right of dower in the mortgaged premises, to the said John Cole and Charles Givens, respectively; all which will more fully appear, by reference to the exhibits herewith filed, and marked A, B., and C.
    The bill further states, that the said William S. Rickard departed this life intestate, on or about the day of 1823, leaving complainant his widow, surviving him, and two children, viz: ■-Rickard, and-■ Rickard, (the latter of whom died in 1828, aged about nine years,) the said two bonds and mortgages being in full force and unsatisfied at his death; that on the day of thereafter, complainant procured letters of administration . upon the estate of her deceased husband, to be granted to her; and in May, 1824, by permission of this honorable court, part of the said mortgaged premises, to wit: No. 19, and the low water lot, in front of No. 19, were publicly sold, and the proceeds arising from thence, applied by complainant, to the payment of the mortgage held by the said John Cole, as being prior in order of date, and which complainant has now in possession, as cancelled and satisfied.
    The bill further states, that on the day of 1827, all the right, interest, and estate, in and to the remaining part of the said mortgaged premises, (to wit: in lot No. 50,) of the said William S. Rickard, deceased, were levied upon under an execution in favor of one Alexander Brown, against complainant, as admin-istratrix of William S. Rickard, and publicly exposed to sale by the sheriff of Beaufort district, in the town of Beaufort, according to the custom of sales, and were then and there knocked off to one Prosper Le Cerf, for the sum of about $300, he being, at that price, the highest bidder; the said Prosper, as well as all other persons then present, well knowing of the existence of the said mortgage to the said Charles Givens ; and that he, the said Prosper, was only buying the equity of redemption therein ; that subsequently, to wit: on the day of , in 183-, the said Prosper Le Cerf, (who has fled beyond seas,) or some other person for him, sold and conveyed the said premises to the defendant, Thomas Talbird, who has been in quiet possession and enjoyment thereof, from thence until the present time, and still holds and enjoys the said property as if discharged from the mortgage to the said Chs. Givens; during all which time, he, the said Thomas Talbird, has received divers large sums of money for the rent, issue, and profits, therefrom accruing. The bill further states, that in the year 1825, a suit, which is now pending, was instituted in this honorable court by complainant, and the other legatees of the said George Stévens, against the executors of his will, for an account and payment of their respective shares of his estate, and in the progress of the investigation of the accounts and vouchers of the said executors, complainant discovered that the said Charles Givens had charged the sum of $1,400, and the interest thereon, amounting together to about $3,000, as so much money advanced to complainant, in part of her share of said estate ; and in February, 1832, the appeal court sustained the said charge, and decided that the said payment was good against complainant, for so much of her legacy, although it had been paid to complainant’s husband before the time appointed by the testator, and the said Charles Givens was secured by mortgage as aforesaid, and notwithstanding the said Charles Givens had sued complainant as administra-trix of the said William S. Rickard, upon his aforesaid bond, and obtained judgment: in consideration of all which the said Charles Givens, by deed, under seal, duly executed on the 20th September, 1833, granted, sold, and assigned, to complainant the said mortgage with all the estate, right, and interest, of him, the said Charles Givens, to the said mortgaged premises, as will fully appear by reference to exhibit JD.
    The bill further states, that complainant has frequently stated, in a friendly manner, the above facts and circumstances to the said Thomas Talbird, and exhibited to him the evidences of complainant’s right, as the administratrix of said William S. Rickard, to foreclose the mortgage of the 8th October, 1818, by a sale of the premises, and also of her claim, as the widow of the said W. S. Rickard, to her reasonable dower in the equity of redemption, or the value of the mortgaged premises, over and above the sum due upon .the said mortgage, and requested him, in a friendly manner, either to pay to complainant the amount due upon the assigned mortgage, and consent to have complainant’s dower assessed upon the equity of redemption, or permit the said mortgaged premises to be sold for satisfaction thereof, and allow complainant to have her reasonable dower in the excess, after satisfying the said mortgage ; with which reasonable requests the said Thomas Talbird has refused to comply.
    To the end, that the said Thomas Talbird may be decreed to pay to complainant the said sum of f 1,400, and all interest due, and to grow due thereon, together with costs ; and her reasonable dower in the equity of redemption, to be assessed thereon, by a short day ; and in default thereof, that the said Thomas Talbird, and all persons claiming under him, may be foreclosed of all equity of redemption; and the complainant may have her reasonable dower in the said equity assessed. Or, if in the opinion of the court, complainant is not entitled to the money due upon the mortgage, that a writ for the admeasurement of complainant’s dower in and to the aforesaid premises, discharged from the incumbrances aforesaid, may be issued by certain commissioners, commanding them to assign the complainant’s dower therein; and that the said Thomas Talbird may account with, and pay to, complainant, one-third, or such other part of the rents, profits, &c., which have been received by him from the said premises, since he, the said Thomas Talbird, has been in possession thereof, as complainant may be entitled to — and for general relief.”
    
      The answer of Thomas Talbird, the defendant, to the complainants bill of complaint.
    
    “ This defendant, &c., answers, &c., that he believes it to be true, that William S. Rickard, the late husband of complainant, did purchase of John Cole, the lots described in the bill, to wit: Lot No. 19, and the low water lot in front of No. 19, and part of No. 50, and having given a mortgage of said lots, with a renunciation of the dower of complainant endorsed thereon, died, leaving the mortgage undischarged. He also admits, that subsequently to the death of her husband, the said William S. Rickard, the complainant as the administratrix of his effects, did pay off the money due for the purchase of the lots, and holds the mortgage cancelled and satisfied. And this defendant further says, that with respect to the mortgage alleged to have been given by William S. Rickard to Charles Givens, and by Charles Givens assigned to the complainant, he is not affected by any thing contained therein, as the same has not been recorded, nor did he ever receive notice thereof, at any time before he purchased the said lots. This defendant admits, that Prosper Le Cerf purchased the lots at a sale made by the sheriff of Beaufort District, and that they were subsequently sold as the property of the said Prosper, and bought by him from an intermediate purchaser; but this defendant contends, that he is not bound by any notice given to the said Prosper, (al- ■ though he by no means admits, that any notice was ever given to the said Prosper, but claims strict proof thereof,) but stands in the condition of an innocent, bona fide purchaser, without notice, and is entitled to the protection of the court, in that relation.
    This defendant further contends, that the mortgage now sought to be set up against him, has, by the complainant’s own showing, been entirely satisfied, and ought to have been cancelled by the said Charles Givens, as the complainant admits, that the said Chs. Givens has been discharged, by the decree of a court of competent jurisdiction, from all responsibility on account of the payment of the legacy, for the legal disposition of which, this mortgage was given as a collateral security.
    As to so much of the bill as seeks to have the dower of complainant in the premises admeasured to her, this defendant submits, that the complainant is not entitled to the aid of this honorable court, as she has a plain and adequate remedy at law, by suing out her writ for the admeasurement of dower, and he prays the judgment of this honorable court, as if the same were here specially pleaded, by way of demurrer. Defendant insists, that if complainant had any right of dower in the premises described in the bill, the same did arise, or accrue, ten years before the said complainant commenced her suit of, or served this defendant with, process to appear and answer thereto, and, therefore, such demand, or action, within the true reason of the act of assembly, made for the limitation of actions, and avoiding of suits, ought to have been pursued within that time. And this defendant says, that he believes, and will be able to prove, that the right of dower of complainant in and to the premises above described, if any ever legally vested in her, has already before this time been exposed to sale, under a levy made by the sheriff of Beaufort district, under a writ of fieri facias, issuing out of the court of common pleas for the said district, and regularly disposed of to the highest bidder, whereby the complainant is fully and forever barred from her claim to the premises, in right of dower. Defendant denies that he has been applied to for the several purposes alleged, otherwise than by the bill; and he denies all combination, &c.”
    The following report of the evidence is given by the chancellor:
    “ The plaintiff produced the following evidence:
    The written examination of William Barnwell, JohnM. Baker, and J. J. Beck.
    The sheriff’s book, to show that the sale to Le Cerf was made for the price of 1375, under Brown’s execution — the sale day in January, 1827.
    The assignment by Givens to the plaintiff, of his mortgage dated the
    
      The mortgage and mortgage bond to Givens, which were recorded the 17th January, 1835, (after suit brought.)
    The judgment obtained by Givens against the plaintiff, as ad-ministratrix of her husband, upon his 'bond; judgment signed April 28, 1829.
    The decree in equity, in Oswald v. Givens.
    The account rendered by Givens, as executor of Stevens, to show that the sum advanced by him to Rickard, was charged as payment of plaintiff’s legacy.
    The defendant introduced the following:
    A sum. pro. of Jones v. Mrs. Rickard. It was alleged that her dower was sold to Portious, by the sheriff, under judgment in this case ; but no judgment, or execution, or deed, from the sheriff, was produced.
    Then a parcel of papers, called a record, from the court of common pleas of Beaufort. One of them purported to be a summons in dower. On the back it was endorsed exparte pro. Portious v. Sarah Rickard, and others. On the inside it summoned Sarah Rickard, as next friend of her children, Prosper and Col. Myer Jacobs, to appear and show cause, why dower should not be ad-measured and laid off, but whose dower, and for whose benefit, or who demanded it, was not stated. Another paper was an order, that certain persons be appointed commissioners to assess dower, but the same uncertainty existed here, as in the summons. Then a return of commissioners (not entitled of any case) that they had assessed dower at a sum named. Then a paper called a judgment that Mrs. Rickard (a defendant) recover (a blank sum) against Le Cerf and Jacobs, (the other defendants,) for dower in (blank.)
    It was admitted that Elmore purchased by his agent, Beck or Bythewood, and sold to the defendant, Talbird.
    Then certain receipts from sheriffs Beck and Archer.
    Then the execution of the plaintiff v. Le Cerf; and that of Por-tious v. Rickard ; also a receipt from Mr. De Treville to Givens, for the mortgage, stipulating, that if upon taking the accounts in Oswald v., Givens, the latter should have over advanced the plaintiff’s legacy, the mortgage should stand good for the excess.
    
      The books of sheriff Beck were produced, and the counsel was to furnish abstracts from- such parts as made for the defendant.
    Dr. Atkins, sworn. — Thought that Rickard died in February» 1823.
    There the testimony closed.
    The bill and answer, and a copy of this statement, with copies of the papers herein referred to, and of my decree, will' put the court of appeals in possession of the case.”
    
      Report of Testimony.
    
    William Barnwell, sworn for complainant.
    Recollects the sale, by the sheriff, of the house and lot; believes there were many persons present, it was bought by Prosper Le Cerf; Charles Givens was present and forbade the sale; said that he had a mortgage of it, or some claim ; thinks he had a mortgage of it; cannot say whether Thomas Talbird was present; has no recollection of his being there.
    John M. Baker, sworn for complainant.
    Was present at the sale of the house and lot, by the sheriff; it was purchased by Prosper Le Cerf; does not recollect when the sale was ; Beck was sheriff; there were as many persons present as generally are at sheriff’s sales; Charles Givens was there ; when the lot was put up, Givens gave notice that he had a mortgage; he most distinctly said he held a mortgage of the property; Prosper Le Cerf heard him ; and after the property was knocked down to him, said at the market house, that he did not care if he had to pay the mortgage; thinks he said he would be satisfied with the bargain, even if he had to pay the mortgage; does not recollect what the property sold for.
    J. J. Beck examined. — Witness, as sheriff, sold the house and lot in Beaufort, as the property of William S. Rickard, about A. D. 1828 or 1829. Prosper Le Cerf was the purchaser, for #375, as witness believes. Witness says, it was generally understood at the sale, that there was a mortgage held by Charles Givens; which, however, was considered as of no validity, being surrep-titiouly obtained. The money was paid to witness by Prosper Le Cerf, on same day of sale, Charles Givens being present. After the money was paid, and the title delivered, Givens observed — ■ “ Are you done gentlemen ? ” He then pulled the mortgage out of his pocket, and showed it to all present, handing it to witness to read; and gave notice to them, that he claimed under the mortgage. Witness, as sheriff, sold this same house and lot, some time afterwards, as the property of Prosper Le Cerf, on execution in favor of the State. Col. Elmore was the purchaser. Col. Elmore understood from witness, in conversation, that the house and lot were claimed by Breteaudeau and Bresac, as purchasers from Le Cerf; and witness may have spoken about the mortgage of Givens, but he is not certain. Col. Elmore requested witness to buy, or get Capt. Bythewood to purchase the house and lot at $500, (the amount of the State’s fine,) for him, Col. Elmore. The property was sold for $500. Witness understood the house and lot were worth from $1,200 to $1,600. Col. Elmore limited the purchase money to $500, to secure the State ; and said if it went for more, he would not purchase, for he considered it a good bargain at that price, though it might be otherwise, from the simple fact, that no other person was willing to encounter a lawsuit with those persons claiming. Witness does not know that Mr. Talbird was present at either sale, not being a man that generally attended sales. Witness, or Captain Bythewood, bid for Elmore, but is not positive which. Witness cannot say that Bythewood knew of the mortgage.
    Cross examination. — Elmore was never formally advertised, to witness’ knowledge, of the existence of that mortgage. Elmore believed the title to be good, though he might have some trouble about making it good. Witness, as sheriff, in March, 1827, sold Mrs. Rickard’s dower to Mr. John Portious, on this house and lot. Portious, at the time, acting as attorney for the plaintiff, under whose execution the dower was sold.
    Received of Charles Givens, Esq. for Mrs. S. Rickard, a mortgage, with an assignment thereon; which said mortgage was executed by William S. Rickard, on the 8th day of October, 1818, to the.said Charles Givens, forthe sum of $1,400. If by the decree of the appeal court, in the case of the legatees of Stevens v. the said Charles Givens, it shall be determined that the sum of $1,400 is more than Mrs. Rickard was entitled to, the said mortgage is to be returned to the said Charles Givens, for the excess.
    R. De Theville.
    20th day of September, 1833.
    Upon the case as made.by the bill and answer, and the preceding evidence, his honor Chancellor Johnston pronounced the following decree:
    “ I think there is little room for doubt, with respect to so much of the bill as seeks to enforce the mortgage. By comparing the endorsements on the bond and mortgage, with the bodies of those instruments, it is apparent that all were drawn contemporaneously and by the same hand. The bond and mortgage in the hands of Givens, would be effected by the memoranda, as authorized by him, unless he accounted for them by showing that they were made without his consent. When he assigned'to the plaintiff, she took subject to the same conditions as applied to her assignor. — ■ These memoranda show conclusively, in my opinion, that the money passed from Givens to Rickard, as a payment of Mrs. Rick-ard’s legacy; that it was intended as a payment; and that the contract was, that it should not be considered as a loan, unless it should be adjudged, that as a payment, it was invalid. While ever it could be allowed as a payment, it should be so regarded ; and never until that intent should prove ineffectual, should it be deemed, or enforced as a loan. But nothing appears better established, than that what is intended as a payment, is a payment, unless the law in the particular case forbids it to be so regarded.
    The mortgagee and the plaintiff, his assignee, are both concluded by the decree in Oswald v. Givens, from averring that the money was not advanced and received as a payment. That was the very point litigated between these two in that case; and the decree is conclusive of the fact against both.
    There was then no debt created by the payment of the money to Rickard, which would operate as a consideration of the bond and mortgage, except in the single contingency provided for in the memoranda endorsed, to wit, that that advancement should not be allowed to prevail as a payment; and that contingency has not happened.
    Givens, the mortgagee, sustained no loss, to entitle him to have the mortgage set up for different purposes from those contemplated by the parties. This will sometimes be done, to rectify a mistake, or compensate for an otherwise irreparable injury, or in like cases, where justice requires it. But so far as Givens is concerned, if he were now the owner of the mortgage, he could not set up a single pretence upon which to ask for such a decree.
    Then as to Mrs. Rickard. It is said as her legacy extinguished the mortgage, she should have the benefit of it. It is a perversion to say that her legacy did extinguish the mortgage. The mortgage fell for want of a debt to support it. There was no debt to be extinguished by the legacy. According to the contract of the parties, the thing which is assumed as the ground for giving Mrs. Rickard the benefit of the mortgage, could not by any possibility exist. If there had been a debt created by the advance of the money, it could only have been because that advance could not operate as a payment of the legacy; the consequence of which would have been that the executor would still have been chargeable with the legacy as unpaid, and Mrs. Rickard would not have lost it. Indeed, I cannot perceive how it can with any propriety be said she did lose it. Will it do to say that the wife sustains a loss when her legacy is paid to her husband, whom by the connubial contract she has authorised to receive it in her stead ? If Rickard were now alive, and the owner of the mortgaged premises, it would not be pretended, I suppose, that his wife would have any equity, in consequence of what was done between him and Givens, to enforce the mortgage against him. But the defendant stands as a purchaser under the husband, and is entitled to as entire an exemption as he.
    Then as to the claim of dower. Our act of 1791, declares that when mortgagors are in possession, the title shall abide with them, notwithstanding the mortgage; and that the instrument shall merely pass an equitable lien to the mortgagee. Now when the wife releases her dower on such an instrument, what is the nature of the interest which passes thereby ? Does dower released upon a mortgage, differ from dower released on a deed which passes the title ? Does it partake of the nature of the principal conveyance ?
    If, for instance, the release were upon a lease for years, would it only endure for-the term, or would it be as enduring as if made on a conveyance in fee ?
    My impression (and I can give no more, for the point was not discussed,) is that a release of dower is not so much a conveyance, as it is (what it purports to be) a bar of the wife’s claim, to attend the conveyance of the husband; to endure while that endures; and cease to operate when that expires.
    That where mortgaged lands are sold under a mortgage, whereupon dower has been released, the purchaser takes not only the fee, but the dower also. That when a mortgage is satisfied by payment of the debt, the dower reverts to the wife, eo instantü And that if a mortgage-ceases to operate, or never begins to operate, (as in the case of Givens’ mortgage,) the dower remains with the wife, or returns to her, as the case may be, without the necessity of a reconveyance to her.
    This impression must, for want of better opportunities here, govern me in my decision: leaving the point to be more fully discussed in another tribunal.
    I conclude, then, that up'on satisfaction having been made of Cole’s mortgage, Mrs. Rickard’s renunciation ceased to operate. And that as Givens’ mortgage never began to operate, the right to dower never departed from her. If it did, it was reconveyed by the assignment.
    Is she barred by the act of limitations? When did her “right and title descend or come” to her. The right of dower accrued upon the death of her husband, which happened more than ten years before the filing of the bill. But the course of our decisions has been, to date the running of the statute, not from the accrual of the right, but from the accrual of a right of action for its assertion. It sufficiently appears that the family of Rickard was in possession until the purchase of Le Cerf in 1827, if not longer; and the bill was filed sufficiently early to prevent the bar of the statute from that time.
    
      A purchase of her right by Portious, has been relied on, but there is no proof of the fact.
    It was also said that her dower has already been admeasured or assessed. But it is impossible to draw any such inference from the indescribable jumble which was produced, under the name of a record, to establish the point.
    It is decreed that a writ do issue to commissioners, to be named by the commissioner of this court, to admeasure or assess the value of the plaintiff’s dower in the premises in question. Each party to pay his own costs.”
    The complainant appeals from the foregoing decree:
    1. Because the mortgage from Rickard to Givens is not controlled in any manner by the memorandum endorsed; and if, as between Givens and Rickard, it amount to any thing'more than a mere agreement, it ought to have no effect, as between Givens’ assignee and a purchaser of the mere equity of redemption.
    
      2. Because unless the complainant is allowed to foreclose her mortgage, she has sustained a clear loss of $1400, and the purchaser has gained exactly the same amount.
    3. Because Givens never ceased to regard and treat the mortgage as a valid lien upon Rickard’s property, and the first purchaser knew of the mortgage.
    4. Because there was no defendant before the court, standing in the relation of purchaser for valuable consideration, and the complainant’s mortgage was the first recorded deed.
    5. Because the only purchaser who can be considered as having purchased from Rickard, purchased with notice.. The defendant does not derive his title through Rickard.
    6. Because the defendant ought to be required to account for the rent and profits of the house and lots, at least since his possession ; and to pay to complainant one-third part thereof.
   Curia, per Johnston, Ch.

The court is satisfied with the result of this case, except that in its judgment, the defendant should have been ordered to account for a third of the rents and profits for the time he has been in possession. Probably the point was not distinctly brought before the circuit court. The right to an account appears from the case of Stevens v. Gordon, 2 Hill. Ch. R. 429, and is established also, I understand, by the case of Keith v. Keith, (not yet reported). An account is, accordingly, hereby ordered.

With regard to the money advanced by Givens to Rickard, what other view can be taken of it than that taken in the circuit decree ? In a suit between these very parties, it was held, according to the plaintiff’s own bill, to have been a payment of her legacy, to her husband. Upon what principle can she be allowed to aver against that decision ? But allowing that she is not concluded by it, what can be made of the bond and endorsement taken together, but that it was a bond to refund in case Rickard’s right to hold the money should be invalidated, for the purpose of indemnifying Givens, if he should be compelled to account to others for the amount thus improperly advanced. Rickard’s right was not invalidated, nor was Givens held liable for the amount. The claim is therefore to enforce a mortgage,' assigned by the mortgagee to the administratrix of the mortgagor, (for that, now turns out to be the character of the assignment,) when neither party has been put to any loss.

It has been argued that the «bond created a debt against Rick-ard, which was subsequently discharged by crediting the amount of his wife’s legacy: which operated as a payment by him. And it has been inferred that the principles of the decree would deprive a mortgage debtor of the right of purchasing up his outstanding mortgage and enforcing it against a subsequent purchaser, who had bought subject to it. Certainly there is nothing in the decree which concludes such a question as that, either one way or the other: and it will be time enough to decide it when a case arises. The decree proceeds upon the ground that there never was a debt. But if there was a debt, and if it was discharged by Mrs. Rickard’s legacy, that surely was no payment of it by Rickard, if, as is contended, he was not entitled to that legacy. If. he was entitled to the legacy, then by the very terms of the endorsement on the bond, he was not bound to refund it. This, then, is a case in which the mortgage debtor never was liable to pay, and if liable, never did pay a farthing; and in which the mortgagor never had occasion to demand payment — and yet, simply because the one has assigned the instrument to ihe other, the court is asked to give it operation.

De Treville, for the motion.

But it is said, that although Givens never had occasion to enforce his mortgage, yet it was a valid instrument in his hands, which he had a right to enforce : and that if Rickard had not a right to his wife’s legacy, then the application of it to the debt was a payment by her: and that she has a right to have the mortgage thus purchased up with her funds, enforced for her personal benefit. — > This is a renewal of the ground taken on the circuit, where the assignment was supposed to have been made to Mrs. Rickard, in her own right. But the reply is conclusive, that the fact has been established, in the case to which her own bill refers, that the money was rightfully paid to her husband, and whether that decision was correct or incorrect, it concludes her, and cannot be reviewed or reversed collaterally.

Hakpek and DunkiN, Chancellors, concurred.  