
    Mary Popkin versus Jeremiah Bumstead.
    Where the wife joined her husband in a mortgage, relinquishing her claim of dower, and after the death of the mortgagor, the purchaser of the equity of redemption paid the money due on the mortgage, and the mortgagee acknowledged the discharge on the record, it was held that the widow of the mortgagor was barred of her dower.
    This was a writ of dower, to which the tenant pleaded in bar, that Thomas Popkin, husband of the demandant, in his lifetime, viz., on the 30th of April, 1806, mortgaged the premises, in which the said Mary demands her dower, to one Thomas Capen, for the payment of 3000 dollars, and that the demandant, in and by the mortgage deed, for a valuable consideration, released to the said Capen all her right of dower in the mortgaged premises, and did thereby lawfully bar and exclude herself from all her right of dower therein forever; that Capen entered and became seised; that on the 9th of November, 1807, (the said Thomas Popkin having before that time died intestate,) John D. Dyer was appointed administrator of said Popkin’s estate ; and, having obtained license to sell the real estate of his intestate for the payment of his debts, sold the equity of redemption to Abel Wheelock, by whom the same was conveyed to Bumstead, the tenant; that he, the said Bumstead, on the 19th of Sept, 1810, paid to Capen, the mortgagee, the whole sum due by the mortgage, the same never having been paid by the mortgagor or his administrator ; and that the said Thomas Popkin was never seised of the premises, or any part thereof, since the execution of the said mortgage deed.
    
      To this plea the demandant, after oyer of the several conveyances mentioned therein replies that on the 19th of * September, 1810, before she demanded her dower, and. more than one month before the ■ commencement of this action, the said Capen, the mortgagee, then having the sole right and interest in the said mortgage deed, did personally repair to the office of the register of deeds for the county of Suffolk, where the said mortgage deed was recorded, having received satisfaction and payment of all the sums due on the mortgage, and did then and there, in the margin of the record of said mortgage deed, acknowledge that he had received full satisfaction and payment for the premises therein mortgaged, and did quitclaim all his right, title, and interest therein, and did then and there desire that the said record might be discharged, and did then and there sign said dis-. charge and acknowledgment; and said mortgage deed was thereupon cancelled and discharged according to the law in that case made and provided.
    To this replication the tenant demurs generally, and the demand-ant joins in demurrer.
    
      Parker, for the tenant,
    cited the case of Fowler vs. Shearer, 
       in which it was decided by this Court that a wife may bar herself of dower, by joining her husband in a deed of conveyance, relinquishing her claim to dower, and putting her seal to the deed; and to show that such a release in a mortgage shall enure to the purchaser of the equity of redemption, he referred to the case of Masury vs. Putnam, 
       decided by this Court in the county of Essex, November term, 1793.
    
      Thurston, for the demandant,
    agreed that the release by her, set forth in the plea, would bar her as respects the mortgagee, and as long as the mortgage deed was in force. But the release of the dower was conditional, as well as the principal conveyance, and the discharge of the mortgage by the mortgagee or his assigns, was a fulfilment of the condition, and a cancelling of the mortgage.  The tenant’s claim is as the assignee of the administrator of the mortgagor; as such, his right was to redeem the land by paying the money due, and thus extinguishing the *mortgage. This he did, and at the same time annulled the effect of the demandant’s release of her right of dower, which was collateral and coextensive with the mortgage. But if the tenant were considered as the assignee of the mortgagee, still the demandant has a right to redeem.  Neither does it appear that the tenant ever entered under the mortgage. The tenant, however, was not the assignee of the mortgagee.
    The conveyances, under which alone the tenant claims, both recognize the claim of dower now set up by the demandant. He purchased the land subject to it, and he paid a consideration accordingly. In fact he redeemed as the assignee of Dyer, the administrator of the mortgagor ; and if Dyer had paid the mortgage, would it be contended that the demandant’s claim would not have revived ? The tenant resists that claim against all equity, since by the terms of his own purchase it was reserved ; and if his plea vs supported, great injustice is done to the demandant.
    
      
       The deeds from Dyer to Wheelock, and from him to Bumstead, purport a convey, anee of the land, “ subject to a mortgage made thereon by said deceased, and other rights claimed, viz., dower by the widow of said Thomas Popkin, deceased.”
    
    
      
       7 Mass. Rep. 14.
    
    
      
      
        Story’s Pleadings, 359, 360.
    
    
      
       See Stat. 1793, c. 37, § 6.
    
    
      
      
        Finck’s Prec. in Chan. 137,138.—2 P. Will. 716.—1 Eq. Ca. Abr. 219, 220
    
   By the Court.

It has been contended for the demandant, upon the facts exhibited by the pleadings in this case, that her title to dower has revived, and is as if she had never released it in the deed of mortgage. It would be singular, if when the tenant had paid the money due on the mortgage, and supposed that he had thus perfected his estate, by extinguishing the only encumbrance he knew to exist upon it, he should by that act revive the claim of the demandant, which she had before solemnly renounced under her hand and seal, and which, as he was under no obligation, it cannot be presumed he meant to do.

But the facts produce no such absurdity. When the tenant purchased the equity of redemption, it belonged to him to pay the money due on the mortgage, and thus rid his estate of that encumbrance. Having all the equitable interest in himself, when he had paid the money due by the mortgage, the legal estate followed the equitable interest, and he became seised of the whole fee simple. If this were not the plain, legal operation of the transaction, the law would * construe the discharge of the mortgage by the mortgagee a release of the legal estate by him to the tenant, who had become lawfully possessed of the equitable interest, and from whom the consideration for that discharge flowed, rather than such a mischief should follow.

Replication adjudged bad.  