
    Denn, ex dem. Demarest and Wife, against Wynkoop.
    and lus wife, ted a mortgage in fee, of the land of the wife, afterwards^ hi consideration1'!)! 125 . pounds, granted and released the premises to B. the mortgagee, his heirs and assigns, for ever; and B. retained the mortgage in his hands, and anadean endorsement thereon, by which he covenanted not to bring any action against Jl. or his for*1 the'^money gage”" aiM^dekept on foot, merely to proteet the title of ,B. and his heirs in the premises,
    cjectmenh'bro’t agu'mk"!! person ckiming^under that the covenant endorsed on the mortgage tion or discharge hi law'or equity’; n-a^e íeing1 unredeemed, the title under it, set up by the defendant claiming under JE?., was a good and valid defence.
    Whether the mortgage is now redeemable, or not, is a question for the court of chancery to decide.
    THIS was an action of ejectment, brought to recover one half of the premises, in the possession of the defend- . <****'•
    The cause was tried before the Chief Justice, at the Bfezv-Tork sittings, in December, 1810. A verdict was taken, by consent, for the plaintiff", subject to the opinion, of the court, on a case, containing the following facts: Philip Minthorne was seised of a tract of land of which the premises in question are a part; and on the 18th August, 1732, devised his real and personal estate to his wife, during her widowhood, and the remainder to hjs children, then living, or thereafter to be born of his 7 07 said wife, to be equally divided between them. The testator died leaving nine children, tfour sons and five daughters. The children having obtained from the widow a release of all her interest in the estate, made a division thereof, and executed a deed of partition, dated 30 th October; 1765. Hannah, one of" the 7 7 7 daughters, having, before the death of the testator, mar- . ried Wiert Banta, he and his wile were one or the parties to the deed, which recited, among other things, that Banta and his wife had drawn to their share one equa} ninth part of the estate, which was particularly bounded and described. And the other children, parties , . , ' . . , . also to the deed or partition, grant, bargain, sell, aliene, release and confirm “ unto the said Wiert Banta and hi,s wife, in their actual possession, now being by virtue of ^le premises, and to their heirs and assigns for ever; all,” &c. (describing the premises in question.) “ to have - . 1 and to hold the said lots,” &c. “ unto the said Wiert 
      
      Banta and Hannah his wife, their heirs and assigns, to the only proper use and behoof of the said Wiert Banta and Hannah his wife, their heirs qnd assigns for ever, in severalty.” The deed contained mutual covenants, as to title and quiet enjoyment, &c.
    
      Hannah, the wife of Wiert Banta, had three children, Hannah, Frances, and Catharine. Hannah married one Allington, and lived on the premises during the American war, but left the country with her husband, at the evacuation by the British, and had not been heard of for many years, and was supposed to have died, without issue. Frances married Nicholas Nagel. Catharine married one Lozier, and died in 1782, about four years after the death of her mother. Lozier is still living. Catharine left a daughter named Hannah, who was born about a year before the death of her mother, and after-wards married John Demarest, the lessor.
    It was proved, on the part of the defendant, that' Wiert Banta and his wife, on the 29th March, 1771, executed a mortgage in fee of the premises in question, to Gabriel Ludlow, to secure the payment of 300 pounds with interest. The mortgage was duly registered, the 30th March, 1771, and recited the seisin of the ancestor,. Philip Minthorne, his death, and the deed of partition. The mortgage contained a covenant, on the part of Wiert-Banta, his heirs, executors, &c. to pay. the money; and a power from Banta and wife to the mortgagee, in case of default, to sell the premises, and the surplus money, after paying the debt and charges, was to be paid over to Banta. Daniel Ludlow, one of the children of Gabriel Ludlow, became legally possessed of the bond and mortgage; and Wiert Banta, Nicholas Nagel, and Frances his wife, on the 7th May, 1788, for the consideration of 125 pounds, granted, bargained, sold, released, and confirmed the premises to Daniel Ludlow, his heirs and assigns for ever, with the usual covenants of seisin, against encumbrances (except the said mortgage) and warranty. On the back of the mortgage was the following endorsement, in writing, dated 7th May, 1788, duly executed by Daniel Ludlow. “ I do hereby covenant and agree, to and with the within-named Wiert Banta, that no action shall be brought against the said Wiert Banta, his heirs, executors or administrators, for the money, within mentioned, or any interest thereon; this mortgage being only kept on foot, to protect the estate of me and my heirs and assigns, in the premises, within granted and described.” Daniel Ludlow conveyed the premises in fee, to Petrus Stuyvesant, who, afterwards, conveyed them in fee, to the defendant. Ludlow, and those claiming under him, have been in possession since the 7th May, 1788.
    
      D. B. O^d-n and Boyd, for the plaintiff.
    Though the deed of partition grants the premises to Wiert Banta and his wife, to hold to them, their heirs and assigns for ever; it is evident from the whole tenor and language of the deed, that it was intended merely for the .partition of the estate, held in common among the children of Philip Minthorne, so that each of the children might hold in severalty, what was before held in common. It was not intended that any estate should be granted or vested in Wiert Banta; and the deed ought to be so construed as te carry into effect the manifest intent of the parties.
    The word grant does not necessarily mean a grant in fee. It may be used, at the election of the party, for a confirmation or surrender.
    
    The words bargain and sale have been introduced . since the statute of uses, and are merely to declare the use. The term release has no operation; for one tenant in common cannot release to another. The word “ confirm” creates no new estate; it only makes the former estate more sure. But it may, perhaps, be said, that by the habendum, an estate of inheritance is vested in Banta and his wife; but if the habendum is repugnant to the premises, it is inoperative. That there is a covenant of warranty on the part of Banta and wife, proves nothing, for every partition implies, and has annexed to it, a warranty in law. We contend, then, that the words used in the partition do not create or vest any estate in Banta, the husband, but merely confirm the interest of the wife in severalty. The next point is, whether Hannah, the wife, has done any thing to bar her heir at law.
    The covenant endorsed on the mortgage, we contend, amounts to a release of the debt; and the mortgage or security, which is the incident, is thereby extinguished and gone. A covenant perpetual not to sue, is a defeasance or release. Can, then, a mortgage executed by the wife, which has been satisfied, be used in bar of her heirs ? A reconveyance by the mortgagee is not necessary to revest the estate. The moment the debt was released, or the money was paid, there was an end to the mortgage; and the estate of the mortgagor remains as if no mortgage had ever been executed.
    
      Slosson and Hoffman, contra.
    Here was a mortgage in fee; and the mortgagee in possession from 1798; the money not having been paid, the legal estate became absolute in the mortgagee. The equity of redemption was reserved, by the mortgage, to Wiert Banta, and he released it to the mortgagee in possession, so that there is a complete conveyance of the legal title and estate to Ludlow; and the heirs of Banta and wife, must be for ever barred. Where the legal estate is out of the lessor in ejectment, the plaintiff cannot recover.
    
    The covenant endorsed on the mortgage does not, in terms, or on the face of it, amount to a release; it can be a release only, in effect, or by implication. A covenant not to sue one of two obligors is not a release, but an agreement. If the party has any further right than that against which he covenants, it is not a release, but a covenant.
    
      The release from Banta and wife to Ludlow was executed on the same day with the covenant. ■ It recites the mortgage; and in the covenant against encumbrances, this mortgage is expressly excepted, showing, most clearly, that Ludlow meant to take the land for- the debt; and that the mortgage money was not paid*
    If the partition deed operated as a conveyance in fee to W. Banta and wife, they held as joint-tenants; and Wiert Banta having survived, the whole estate was in him. We may suppose that the wife intended that the estate should be conveyed to her husband; and the partition deed was so drawn in order to fulfil that intention.
    
      
      
        Co. Litt. 301. b. 302. a. 2 Saund. 96. note 1.
    
    
      
      
         Co. Litt. 200. b.
    
    
      
      
        Perkins, 161.
    
    
      
       4 Cruise, 143. c. 8. s. 10.
    
    
      
       1 Johns. Rep. 590. 4 Johns, Rep. 42.
    
    
      
       5 Bac. Abr. 683. (Release, A. 2.)
    
    
      
      
         5 East, 138. 7 Term Rep. 49. Bull. N. P. 110. 3 Johns. Rep. 386. 2 Johns. Cases, 321. 2 Johns. Rep. 84. 221.
      
    
    
      
       7 Johns. Rep. 207. 8 Term Rep. 168. 12 Mod. 556. 1 Ld. Raym. 690.
      
    
   Per Curiam.

The defendant sets up a title under the mortgage, executed by Banta and his wife to GabrielLudlow, and if that mortgage interest has not been redeemed, it forms a good defence to the action. The endorsement upon the mortgage by Daniel Ludloxv, who claimed the interest under it, was no satisfaction and. discharge of the mortgage, either at law or in equity. It is very clear that it was not so intended. The land was taken for the debt, and Ludlow retained the mortgage, to secure his title, as the release of Banta alone did not secure the fee. This is the express language of the endorsement, and it would be unjust to take the land from him, or his assigns, without payment of the debt for the security of which the mortgage was created. Whether the mortgage be redeemable, or not, at this late day, is a question that belongs to the court of chancery, and not to this court to decide. The defendant is entitled to judgment.

Judgment for the defendant.  