
    Benjamin J. Gerrish vs. John Mason.
    The St. of 1845, c. 208, does not enable a married woman, without the concurrence of het husband, to make a valid deed of land, conveyed to her, not to her separate use.
    A mortgagee, who has entered for the purpose of foreclosing his mortgage, cannot mai» tain an action on Rev. Sts. c. 104, to recover possession of the land mortgaged.
    Action on the Rev. Sts. c. 104. The parties submitted the case to the decision of the court upon the following facts :
    The plaintiff claimed title under a mortgage from a married woman, who held the land under a warranty deed, in common form, whose husband did not join in the mortgage or make any separate conveyance of his interest. The plaintiff entered upon the premises, and took possession for breach of condition of the mortgage, and a certificate of this entry was duly recorded. The plaintiff did not however keep actual possession of the land, but the defendant was and remained in possession, and did not attorn to the plaintiff; and the plaintiff afterwards gave him notice that he had taken possession, and required him to pay rent; but the defendant did not comply with the terms of the notice, or agree to pay rent; and the plaintiff, after giving the defendant fourteen days’ notice to quit, commenced this action. Soon after the making of the mortgage, all the interest of the husband of the mortgagor was conveyed to his wife by his assignee in insolvency; and she, after the commencement of this action, obtained leave to dispose of the land for her support.
    
      T. P. Cheever, for the plaintiff.
    
      G. E. Betton, for the defendant.
   Dewey, J.

There is no ground for maintaining this action. The title of the plaintiff is derived under a mortgage deed of certain land conveyed in the usual form to a married woman, and, by her sole deed, conveyed in mortgage, her husband not joining in the mortgage. The St. of 1845, c. 208, does not apply to the case.

If it were otherwise, the plaintiff, as mortgagee, could not maintain this action founded upon Rev. Sts. c. 104, to recover possession of the mortgaged premises. Hastings v. Pratt, 8 Cush. 121.

Judgment for the defendant.  