
    Aaron Brooks Junior versus Peter Harwood et al.
    
    Two parcels of land, in which S is entitled to dower, are mortgaged together as security for a debt. Afterward the mortgager conveys ail his interest in one parcel to A. H. and in consideration of S’s joining in the conveyance and releasing het right of dower, he conveys to her an estate for her life in the other parcel, upon which parcel she enters and takes the profits. The plaintiff purchases the mortgager’s right to redeem this second parcel. P. H. having purchased A. H.’s interest in the first parcel, takes an assignment of the mortgage, and enters upon the mortgaged premises for foreclosure. On a bill in equity by the plaintiff to redeem, it was held, that S was not liable to contribute towards the redemption, nor to account for the profits of the second parcel, the lease fin* life having been made to her as an equivalent to her right of dower in both parcels.
    
      Held, also, that as the assignee of the mortgage could not have compelled S to pay over the rents and profits of the second parcel, without subjecting himself to her claim of dower in the whole land, he was not bound to account for them in this suit ; and that the plaintiff had no equitable claim to them, as he purchased after the lease for life, and consequently at a reduced price on that account.
    
      Held, also, that the assignee of the mortgage was bound to account for the rents and profits of the first parcel, from the time of his entry for foreclosure.
    
      Held, also, that the plaintiff, upon paying the whole mortgage debt, deducting the rents and profits last mentioned, would be entitled to hold the whole estate mortgaged, excepting the part leased to S during her life, until he should be reimbursed the amount paid by him over his proportion of the mortgage debt.
    This was a bill in equity to redeem certain mortgaged estate. The prayer of the bill extended to the redemption of a farm in Phillipston and other estate included in the' same mortgage, but the object of the plaintiff was to redeem only the estate last mentioned.
    The case was submitted on the following statement of facts.
    The farm, together with the estate of which redemption is claimed, was mortgaged by Nathan Stratton to Hutchins Hap-good, February 9,1820, to secure the payment of 1200 dollars. In these mortgaged estates, Sarah Stratton, one of the defendants, was entitled to dower.
    On November 5, 1820, Nathan Stratton conveyed the farm, subject to the mortgage, to Abner Harwood, and Sarah Stratton also released her interest to Abner Harwood ; and Nathan Stratton, at the same time, in consideration of this release by her, leased the other mortgaged estate to her for life ; which she entered upon and has continued to occupy ever since.
    On May 20, 1822, Nathan Straf on’s right of redeeming the estate, which had been leased for life to Sarah Stratton, was sold on execution, and purchased by the plaintiff.
    On October 23, 1823, Abner Harwood’s right of redeem ing the farm was sold on execution, and purchased by the de fendant, Peter Harwood, for 665 dollars.
    On Novembers, 1823, Abner released his interest in the farm to the defendant Peter, and on December 27, 1824, Hapgood assigned his mortgage to Peter, who paid him 1416 dollars and 63 cents, being the amount then due on it.
    On March 12, 1825, Peter made an entry on the mortgaged property for the purpose of foreclosure.
    The farm is worth 3000 dollars, and the rents and profits of it have amounted to 150 dollars a year.
    The other estate is worth 242 dollars, and the rents and profits of it have amounted to 10 dollars a year ; which have been received by the defendant, Sarah Stratton.
    The plaintiff, before the bill was brought, requested Peter . Harwood to state an account of the rents and profits received by him, and of the sum due on the mortgage. Peter answered, that he had received no rents.
    
      Sept. 29th.
    
    
      Bigelow and Brooks, for the plaintiff,
    contended that Peter Harwood was bound to account for the rents and profits of the farm since he entered for foreclosure ; and that the rents and profits received by Sarah Stratton, the tenant for life, should be applied to keep down the interest. Penrhyn v. Hughes, 5 Ves. 99.
    
      J. Dacis, for the defendant Harwood,
    cited Gibson v. Crehore, 5 Pick. 146; Saunders v. Frost, ibid. 259.
    
      Newton, for the defendant Sarah Stratton.
   Wilde J.

afterwards drew up the opinion of the Court. This is a bill in equity to redeem the demanded premises from a mortgage given to Hutchins Hapgood, and by him assigned to Peter Harwood, one of the defendants, he having before purchased all the mortgager’s right and interest in a large portion of the lands mortgaged.

The plaintiff’s right to redeem is not questioned, hut the defendants deny their liability to contribute, and contend that the plaintiff is not entitled to redeem but upon payment of the whole debt due on the mortgage. That Peter Harwood is not liable to contribution in the present suit, is fully settled by the case of Gibson v. Crehore, 5 Pick. 146. So that the only question is, whether Sarah Stratton, the other defendant, under the circumstances of the case, she having an estate for life in the demanded premises, is equitably bound to contribute towards relieving the estate from the incumbrance.

It is no doubt true generally, that a tenant for life, in pas session of an estate charged with a mortgage, is bound to keep down the interest, or to assist the reversioner in redeeming the mortgage ; but under all the circumstances of this case, we think that Sarah Stratton is not thus liable. She not having joined in the mortgage, would have been entitled to dower in the whole of the mortgaged premises, but for her subsequent release to Abner Harwood. In consideration of that release, the demanded premises were leased to her for life, as an equivalent for her right of dower in the whole of the mortgaged premises, and it has not been denied that it was a fair equivalent, and that the conveyance to her was made boná fide. This freehold estate was never intended to be subject to the mortgage. Abner Harwood was bound to pay the whole debt if he chose to redeem, and if he did not redeem, the mortgagee could not have defended against Sarah Stratton’s claim of dower. It is clear, therefore, that she is entitled to hold the demanded premises free from the mortgage, and that Peter Harwood, after purchasing in the mortgage, could not have compelled her to pay over the rents and profits of the demanded premises, without subjecting himself to her claim of dower in the whole land mortgaged, so that eventually he could not hold the rents and profits, and is not, accordingly, bound to account for them in the present action ; nor has the plaintiff any equitable claim on these rents and profits, for he purchased the demanded premises subsequently to the lease to Sarah Stratton, and at a reduced price, without doubt, in consequence of that lease.

Peter Harwood, the other defendant, is bound to account for the rents and profits of the farm from the time of his entry for the purpose of foreclosing the mortgage, and redemption will accordingly be decreed, on payment of the mortgage debt, after deducting the amount of such rents and profits. The plaintiff will be entitled to hold over the whole of the estate mortgageu, excepting the part leased to Sarah Stratton during her life, until he shall be reimbursed the amount paid over his proportion of the mortgage debt, unless Peter Harwood will consent to i separate redemption of the demanded premises.  