
    * Ruth Barker versus Ebenezer Parker and Others.
    
      A made a mortgage deed, and his wife released her right of dower in the mortgaged premises. The right in equity to redeem was sold on execution; but before any entry was made under that purchase, the money due on the mortgage was paid by a stranger, and the assignee of the mortgage released to the mortgagor. The wife of the mortgagor was held entitled to her dower in the mortgaged premises, against the assignees of the purchaser of the equity of, redemption in possession.
    This was a writ of dower, and the question, whether the demand-ant was entitled to her dower in the lands and tenements described in the writ, was submitted to the determination of the Court, upon the following facts agreed by the parties.
    On the 19th of June, 1793, Moses Barker, then the husband of the demandant, was seised in fee of the estate, wherein she claims her dower; and on that day conveyed the same, in fee and in mortgage, to secure the payment of £450 to Elbridge Gerry. The demandant joined in this conveyance, and relinquished her right of dower.
    On the 26th of November, 1803, Mr. Gerry assigned this mortgage to John Jeffries; who on the 11th of July, 1806, entered, and became seised of the estate, in virtue of a judgment for possession, which he had recovered, and continued so seised, until the 8th of March, 1808; when one John Hendirson, who had been tenant under Barker, the original mortgagor, paid the amount due to Jeffries; who thereupon released his right to the said Barker.
    
    On the 24th of May, 1806, the right of Moses Barker to redeem the mortgaged premises, was sold according to law, in the process of a suit instituted by a creditor of Barker, and was on that day purchased by one Mackay, to whom a legal conveyance of the equity of redemption was made. The right in equity to redeem was after-wards conveyed, through several successive proprietors, and on the 12th of January, 1808, was lawfully conveyed to the tenants in this action ; who entered after the said release had been made by Jeffries to Barker, some time in the year 1808, and have ever since continued in possession.
    
      Whiting, for the demandant.
    If the mortgage money had been paid by the tenants, after they became possessed of the right in equity to redeem, the demandant would doubtless be barred of her dower. But the tenants have paid nothing of the mort- [ * 565 ] gage money. On the contrary, * the money was paid in behalf of Barker, the mortgagor, and the release made to him .
    
      W. Sullivan and Mason, for the tenants.
    When the equity of redemption was legally sold, the mortgagor’s right and interest in the land was wholly extinguished ; saving and excepting his right to repossess himself of the right in equity to redeem, by paying to the purchaser the amount paid by him, with interest, &c., according to the statute . After such sale, whoever might pay the money due on the mortgage, the release enured only to the benefit of him who held the right in equity to redeem. If the mortgagor paid the money, he did it in his own wrong. The right to redeem was in others, and three years were allowed them by law to exercise that right. The mortgagor, after condition broken, is not in of his former estate ; and until he has paid the money due on the mortgage, and also the price paid by the purchaser of the equity of redemption, he has no estate in the mortgaged premises, of which his wife is dowable .
    
      Whiting, in reply. Whatever destroys the mortgage, at the same time annihilates the release of the mortgagor’s wife ; except where satisfaction of the mortgage is made by the purchaser of the equity. This latter, however, has no legal estate, until he has satisfied the mortgage.
    
      
       13 Mass. Rep. 525, Hildreth vs. Jones & Al.—11 Mass. Rep. 298, Pixley vs Bennett.
      
    
    
      
       7 Mass. Rep. 138, Willington vs. Gale.—9 Mass. Rep. 101, Porter vs. Millet.
      
    
    
      
       11 Mass. Rep. 125, Perkins & Al. vs. Pitts.—8 Mass. Rep. 491, Popkin vs Bumstead.—12 Mass. Rep. 387, Kelly & Ux. vs. Beers.
      
    
   Putnam, J.

It has been contended for the tenants, that inasmuch as the demandant released her right with her husband to the mortgagee ; and as a creditor of her husband has taken and sold, upon an execution, his right to redeem, and held that estate for more than one year, that the title of the mortgagor has been completely divested, and his widow effectually precluded from her dower; and that the payment, which the tenant of the mortgagor made, even if it should be considered as made by the mortgagor himself, cannot procure any advantage to him ; as he had at that time no right to redeem, two years having then elapsed after that right had been taken from him by the execution. Such payment was, it is contended, merely voluntary, *and the tenants may [ * 566 ] avail themselves of it; they having a right to hold the estate against all persons, excepting only the mortgagee and his assigns.

This result, however inequitable, would seem to follow, if the mortgagor was litigating in a court of law with the tenants. But the mortgagor is dead; and it is his widow, who claims justice at the hands of the tenants. She happily may avail herself of the payment of the mortgage money. The tenants do not claim under the mortgagee. The debt has been paid, to secure which the mortgage was given. Why then should it be set up as a bar against the demandant ? If no mortgage had been given, it would be agreed on all hands, that the widow should have dower. But the mortgage, having been paid, is to be considered as never having existed. The only obstruction in her way has been removed; for which she owes no thanks to the tenants. Her claim was affected only as between her and the mortgagee and his assigns. They are satisfied, and her rights are restored.

There is another view, in which it may be useful to consider this case. For certain purposes the mortgagee is considered as technically seised; but until the right of the mortgagor be foreclosed, the mortgage is, in effect, but a pledge. The mortgagor is seised of such an estate as may be granted, as may descend to his heirs, as may be levied upon by execution ; and the purchaser, or the execution creditor, is considered as having such a seisin, as may enable him to maintain actions against strangers. If a wife should die seised of such an estate, it would be such a seisin and estate, as would entitle her husband to be a tenant by the courtesy; and when the husband has been seised of such an estate during the coverture, his widow is dowable; and she would have a right to redeem the same.—12 Mass. Rep. 278, Snow vs. Stevens.—1 Atk. 603, Casbourne vs. Scarfe.—7 Mass. Rep. 138.

Judgment for the demandant.  