
    Sally Peabody, in Equity, versus James P. Patten.
    Husband and wife mortgaged the wife’s land, the equity of redemption was sold on execution at the suit of the husband’s creditors, and the husband died. Held, that the wife was entitled to the land upon paying the sum due on account of the mortgage only.
    This case came before the Court upon a statement of facts.
    The plaintiff and her husband, Theodore Peabody, in 1807, conveyed land held by them in fee in her right to the Trustees of Westford Academy in mortgage ; and the Trustees, on the 2d of May, 1821, assigned the same to the defendant. The equity of redemption was attached by one Wright and others, creditors of the husband, and on the 31st of October, 1820, was sold to the defendant by virtue of an execution in favor of Wright. Theodore Peabody died in January 1821. The defendant, in September 1821, recovered judgment on the mortgage deed against the plaintiff, and on the 22d of November, 1821, he entered upon the land by virtue of a writ of possession. On the 24th of August, 1822, the plaintiff tendered him the sum due on the mortgage for the redemption of the land, but the defendant refused to convey the land for that sum, claiming in addition the amount paid by him for the equity of redemption.
    If upon these facts the plaintiff was entitled to redeem by paying the sum due on the mortgage, the Court were to decree a redemption on payment of that sum; but if not, the bill in equity was to be dismissed.
    
      Keyes for the plaintiff.
    The mortgage was no alienation, except 63 the amount of money for which it was made. Powell on Mortgages, 741, 742. The plaintiff parted with her interest in the land, only in case that sum should not be paid. If no attachment had been made, and the husband had died leaving assets, the administrator would have been bound to pay off this mortgage, and the plaintiff would then have been seised in the same manner as if no mortgage had been given. Powell, 754 ; Tate v. Austin, 1 P. Wms. 264. Had there been no mortgage the husband would have had but a life estate, and the wife’s joining with him in the deed could not give him a greater estate. If after the attachment was made the mortgage had been paid, the attaching creditor would have been obliged to extend his execution on the land, which Would have been on the life estate only. Forster v. Mellen, 10 Mass. R. 424 ; St. 1815, c. 137, § 3. Where the heir., administrator or widow redeems, the widow is let in to her dower which she had released in the deed of mortgage ; Snow v. Stevens, 15 Mass. R. 278 ; Barker v. Parker, 17 Mass. R. 564 ; and the present case is analogous. A question somewhat like this came up in Demarest v. Wynkoop, 3 Johns. Ch. R. 147, but was not decided.
    
      Abbot and Hoar for the tenant.
    As between the mortgagee and mortgager the fee is in the former. Newall v. Wright, 3 Mass. R. 138 ; Com. Dig. Chancery, 4 A, 1 ; Powell, 205, 226, 718 ; Holbrook v. Finney, 4 Mass. R. 566 ; 8 Mass. R. 554, 568. The plaintiff, after the mortgage, had a mere naked right, which the husband might dispose of; Bac. Abr. Baron and Feme, C, 1, 2; and by his neglect to perform the condition she loses her estate. Com Dig. Baron and Feme, L. Having with the aid of her husband passed the fee, she cannot regain it without his aid. [Wilde J. Suppose the husband had given a release of the equity of redemption, would it be binding on the wife ?j Perhaps he could not bind her directly by his deed, but after she has unlocked her estate he might permit a foreclosure, and he might then take an assignment of the estate to himself. His right over the equity of redemption resembles his right over the chattels real of the wife, which he may alienate. If the husband had power to render the estate absolute in the mortgagee and his assigns, why should not the creditors of the husband have the same power ? If by means of an attachment a creditor of the husband gets a lien on the wife’s property in action, the husband cannot say he does not choose to reduce it to possession. The husband may dispose of a mortgage in fee given to the wife; Powell, 799 ; and if so, it should seem that he might of her equity of redemption. Where husband and wife mortgage her estate and the husband pays part of the principal borrowed, and afterwards borrows the same sum again of the mortgagee, the wife must pay the whole money in order to redeem. Rayson v. Sacheverel, 1 Vern. 41. As to the husband’s assets being applied tn pay the mortgage on the wife’s land, that is a matter between the heirs and the wife, and has no relation to creditors.
    The opinion of the Court was delivered at March term 1824, by
   Wilde J.

If a widow be dowable of an equity, as was determined in the case of Snow v. Stevens, 15 Mass. R 278, it follows conclusively that she is entitled to redeem the mortgage ; and if she has this right in the estate of her husband, it would be a strange anomaly if she had not as much right in her own inheritance. The husband by marriage acquires no right in the inheritance of the wife, he is only entitled to the possession, and the pernancy of the profits, during coverture. He cannot alienate her real estate, or charge it with his debts, without her consent. And if she consents so to charge it, and joins her husband in a mortgage for that purpose, the equity of redemption goes to the wife. The equity is inherent in the land, and as the estate was held before the mortgage, so is the equity after. If there is a legal performance of the condition, the estate revests without the aid of a court of equity; and if there is an equitable performance, the court will decree a restoration of the estate; and in neither case does the husband acquire any new right. So if A mortgages his estate to B, to secure a debt due from C, and C pays the money at the time stipulated in the condition, the estate ipso facto revests in A. Or if C fails to pay the money, A has a right to redeem the mortgage. C in such á case can acquire no title in ttie estate mortgaged, by the legal or equitable performance of the condition ; neither can the husband acquire any new title in the estate of his wife by redeeming it from a mortgage; nor can a creditor of the husband, by attaching the equity and purchasing it on sale by virtue of an execution, acquire any great er right than the husband had before the sale. He would in such case have a right to redeem, and to hold the estate during the life of the husband, but no longer. A mortgage does not operate as an alienation, except to the extent of the money borrowed or debt secured. Powell, 741, 742. It is laid down in Rol. Abr. 344, Baron and Feme, G, pl. 15, that if a woman possessed of a term takes a husband, and he grants the term upon condition, that if he, his executor, or administrator, pay £10, he shall re-enter, and afterwards he pays the £10, this is no disposition, but he shall be possessed in right of his wife. From these principles and authorities it is clear that the plaintiff has the right to redeem. The estate mortgaged was her estate, and no one has now any right or title to it excepting herself and the mortgagee. Since the death of the plaintiff’s husband the defendant can claim nothing as purchaser of the equity.

This is not a case to which the doctrine of tacking would apply, even in an English court of equity ; for no case can be found, where the husband and wife join in a mortgage of her estate, that he has been allowed by his own act to charge the estate beyond the sum secured by the mortgage. And besides, the doctrine of tacking is not admissible in our courts, it being inconsistent with the statute providing for the registry of deeds,«which establishes a different principle of priority, and also the statute which prescribes the terms on which the mortgager is entitled to redeem. We are of opinion, therefore, as the plaintiff has duly tendered the sum due on the mortgage, she is entitled to a decree in her favor for possession. 
      
       See Gibson v. Crehore, 3 Pick. 475 ; Same v. Same, 5 Pick. 146 ; Carll v. Butman, 7 Greenl. 102. Fisk v. Fisk, 1 Connect. 566 ; Southerin v. Mendum, 5 N. Hamp. R. 431 ; Collins v. Torrey, 7 Johns. R. 278 ; Coles v. Coles, 15 Johns. R. 319 ; Montgomery v. Bruere, 2 Southard, 865 ; Reed v. Morrison, 12 Serg. & Rawle, 18 ; Heth v. Cocke, 1 Randolph, 344 ; Smiley v. Wright, 2 Ohio R. 507 ; Claiborne v. Henderson, 3 Hen. & Munf. 322 ; Crafts v. Crafts, 2 M'Cord, 54 ; Walker v. Griswold, 6 Pick. 416 ; Jackson v. Dewitt, 6 Cowen, 316 ; Russell v Austin, 1 Paige, 192.
     
      
       See Grant v. United States Bank, 1 Caines’s Ca. in Error, 112 ; Latouch v. Ld. Dunsany,1 Sch. & Lefr. 157 ; Bond v. Hopkins, ibid. 430 ; Anderson v. Neff, 13 Serg. & Rawle, 223 ; Colquhon v. Athinsons, 6 Munf. 550, M'Neil v. Cahill, 2 Bligh, 228 ; Peters v. Goodrich, 3 Connect. R. 346 ; Lasselle v Barnett, 1 Blackford, 153.
      A mortgager, in Maryland, who goes into chancery to redeem, will only be permitted to do so, upon the payment of the mortgage, and all other delta due from him to the mortgagee. Lee v. Stone, 5 Grill &. Johns, 1
     