
    Ebenezer Appleton versus William Boyd.
    Where land is conveyed to two in mortgage, as collateral security for a joint debt, it is holden in joint tenancy, notwithstanding the statute of 1785, c. 62.
    This was a writ of entry, brought to obtain possession of certain lands, mortgaged by the tenant to Royal Makepeace and Robert Rose, in joint tenancy at common law, since the statute of 1785, c. 62, (by the fourth section of which it is enacted, that all gifts, &c., of any lands, &c., made to two or more persons, shall be taken to be estates in common, and not in joint tenancy, unless it shall be therein said that the grantees, &c., shall hold the lands, &c., jointly, or as joint tenants, or in joint tenancy, or to them and the survivors of them, or unless other words be therein used, clearly and manifestly showing it to be the intention of the parties to such gifts, &c., that such lands, <fcc., should vest, and be held as joint estates, and not as estates in common,) and after Rose’s death assigned by Makepeace to the demandant in fee. The mortgage was made to secure a debt due to Makepeace and Rose jointly, they being partners in trade.
    The tenant pleaded in bar, that the mortgage was usurious, which was traversed, and on the traverse issue was joined, which was tried before the chief justice, at the sittings here after the last October term.
    The report of the chief justice states that the tenant, to maintain the issue on his part, offered to give in evidence * the confession of Makepeace, made before the assign- [ * 132 ] ment of the mortgage. This was objected to, and the evidence was rejected by the judge. The tenant offered to swear Makepeace as a witness; to which he objected, declaring that it was his interest that the demandant should recover. The tenant did not move to examine Makepeace on his oath as to his interest, but the demandant’s counsel, to prove Makepeace’s interest, produced a bond of even date with the assignment, as executed by Makepeace to the demandant, in the penal sum of 2180 dollars, on condition that, after the termination of the suit on the mortgage to be commenced by Appleton, whether he should recover possession or not, if he should reconvey the mortgage to Makepeace, on his paying the demandant 1090 dollars, with interest, then the said bond to be void; which bond was executed as an escrow, to be delivered tf' the demandant on a condition to be performed by him, and not within the control of Makepeace. On this evidence the judge ruled that Makepeace might be sworn as a witness, if he consented; but that he could not be compelled to be a witness against the demand-ant. The tenant then offered one Daniel P. Parker as a witness, who also refused to be sworn, saying that it was his interest that the demandant should recover. The judge then ordered him to be sworn on the voir dire, on which oath he answered ; that he and the demandant were joint partners in trade, that the mortgage was assigned to the demandant to secure a debt due from Makepeace to the copartnership; and that if the demandant recovered, he should be equally interested with him in the judgment. On which, at the tenant’s motion, one Daniel Stephens, jun. was sworn, and testified that said Parker had told him that he had no interest in the said mortgage; and Parker again answered, that being particularly acquainted with the tenant, and not wishing him to know that he was interested in the mortgage, he had concealed his interest from the witness Stephens. The judge, ruled that he could not [ * 133 ] compel Parker to testify against the demandant; but *that he might, if he consented, which he refused to do. A verdict was then found for the demandant, with liberty for the tenant to move for a new trial, upon the judge’s report, because proper evidence, as the tenant supposed, was not admitted, and because the conveyance to the demandant was of a moiety only of the demanded premises.
    The action stood over to this term, for a decision of the tenant’s motion for a new trial; and now' Dana, of counsel with him, seemed not to have prepared himself for argument, and submitted the cause with observing, as to the last point only mentioned in the report, that the words of the mortgage deed were clearly within the statute, and must, therefore, be held to convey an estate in common, so that after Pose’s death, Makepeace, the survivor, was seised of a moiety only, and could of consequence assign no more than such moiety to the demandant.
    
      Bigelow, for the demandant,
    argued that, from the preamble to the provision of the statute, taken in connection with the enacting clause, it was very plain that the legislature did not intend to include a conveyance like the present. The preamble recites that estates in joint tenancy are often created against the intention of the parties; and in the enacting clause there is an express exception of cases where it shall manifestly appear that the intention was to create a joint tenancy. Now, it is very certain that the parties here intended this mortgage as a collateral security for the debt it was made to secure; that debt is due to the survivor of the two creditors. It would be a most manifest absurdity that the heirs of Pose, the deceased mortgagee, should take a moiety of the land, without any interest in the debt it was pledged to secure, and that Make-peace should be entitled to the whole debt, and still have an interest in but a moiety of the land pledged for its security.
   The action being continued nisi, the opinion of the Court was delivered at the following November term in Suffolk, by

Parsons, C. J.

Since the argument, we have looked into the case, and are of opinion that judgment be rendered *for the demandant on the verdict. Three objections [ * 134 ] were made to the judge’s directions.

1. That he did not compel Makepeace, the assignor of the mortgage, to be a witness for the mortgagor. But Makepeace very clearly had an interest in supporting the mortgage; for if the demandant should fail in recovering, yet by reconveying the mortgaged estate of Makepeace, the latter would forfeit his bond, unless he paid the demandant a sum of money. It was, therefore, Make-peace’s interest that the mortgage should not be declared void, as usurious.

2. Another objection was, that the judge would not compel Daniel P. Parker to be sworn as a witness against the demandant; after Parker had sworn that, as a partner in trade with Appleton, he was jointly and equally interested with him in the event of the suit. There seems to be no foundation for this objection. If Parker swore falsely, he ought to be convicted of perjury,

3. The objection to the demandant’s title is founded on the statute of 1785, c. 62, § 4, which provides that all conveyances to two or more grantees shall be adjudged to convey estates in common, unless it appear from the conveyances that the intent of the parties was, that joint estates should pass.

The conveyance before us is a mortgage to two persons in fee, to secure the payment of a debt jointly due to the mortgagees. As, upon the death of either mortgagee, the remedy to recover the debt would survive, we are of opinion that it was the intent of the parties, that the mortgage, or collateral security, should comport with that remedy ; and, for this purpose, that the mortgaged estate should survive. Upon any other construction, but one moiety of the mortgaged tenements would remain a collateral security for the joint debt; which would be clearly repugnant to the intention of the parties to the mortgage. The objection to the demandant’s title to the whole cannot prevail; and judgment must be rendered on the verdict for the demandant, as on a mortgage. 
      
      
         [Both Makepeace and Parker, notwithstanding their interest, might have been compelled to testify against it. — Bull vs. Loveland, 10 Pick. 9. — Taney vs. Kemp Harr. Johns. 348. — Stoddart vs. Manning, 2 Harr. & Gill. 147. — Baird vs Cochran, 4 Serg. & Rawl. 397. — Devoll vs. Brownell, 5 Pick. 448. — Ed.]
     