Pitts v. Aldrich.

had only occupied the same with his family for the temporary purpose of cutting his hay and harvesting his oats; having thereafter returned to the house which he had occupied for many years in Goulding's Village, and where he continued to reside as before, until October 1st 1861. The old house upon the premises had been taken down, and he was building a new one in the summer of 1861, when the debt to the defendant was contracted; but the premises were not then occupied as a residence by him. This debt existed before the homestead estate was perfected, and the estate was therefore not exempted from this levy. Plaintiff nonsuit.

MARY ANN PITTS VS. STEPHEN A. ALDRICH.

In a suit to foreclose a mortgage which the wife of the mortgagor has signed for the purpose of releasing dower, it is not necessary to join her as a defendant, in order to defeat her inchoate right of dower in the equity of redemption.

BILL IN EQUITY to redeem a mortgage of land.

It was agreed that the plaintiff's husband executed the mortgage, in August 1847, she joining therein to release her right of dower; that the mortgage was assigned in October 1847 to Henry Goulding, who in February 1850, in an action against the plaintiff's husband alone, obtained conditional judgment for pos session of the premises, for breach of condition of the mortgage, and was duly put in possession thereof in April 1850, and so remained until August 1852 when he assigned the mortgage and conveyed all his interest in the premises to the defendant, who then entered into and has ever since remained in possession thereof. In October 1850 the defendant purchased the equity of redemption of the plaintiff's husband in the premises from his assignee in insolvency. The plaintiff's husband died in November 1858. The plaintiff never had notice that the defendant had entered upon or held possession of the premises for the purpose of foreclosing her right of redemption therein; and she has never released her right to dower in the equity of redemption.

Pitts v. Aldrich.

On these facts, the case was reserved by Hoar, J., for the determination of the whole court.

S. A. Burgess, for the plaintiff.

G. F. Hoar, for the defendant.

COLT, J. The plaintiff for the purpose of releasing her dower in the premises joined in a deed of mortgage given by her husband to secure the payment of a debt, and she has thereby barred her right to dower in the mortgaged premises, if before bringing her bill the holder of the mortgage has legally foreclosed the same. The mortgagee in such case has only appropriated the premises, in the manner authorized by the mortgagor by his conveyance, to the payment of the debt for which it was pledged; and to such appropriation by foreclosure for breach of condition the married woman consents when she releases her right, and cannot complain if she thereby loses her dower in the equity of redemption.

The case finds that the mortgage was foreclosed by the assignee of the mortgagee by an action at law brought against the mortgagor, who was also then tenant of the freehold. To this proceeding it is true the plaintiff was not made a party; nor was it necessary or proper that she should be, under our statute which authorizes the foreclosure by an action for possession, which is to be like a writ of entry "against whoever is tenant of the freehold." Gen. Sts. c. 140, §§ 2, 8. The decisions of other states requiring the wife or widow to be made a party to proceedings in equity for foreclosing a mortgage in which she nas released dower have no application in this commonwealth where a statute mode of foreclosure is provided which does not require that she should be joined or notified.

No question of merger or of payment of the mortgage by the defendant seems open in the case, for the bill expressly alleges that the defendant entered into possession of the premises under the mortgage and assignment, and has ever since continued in such possession, though he had previously become the owner of the equity of redemption by purchase from the assignee in insolvency of the mortgagor. The decisions of this court most clearly establish that the purchaser of an equity of redemption

George v. Wood.

from the assignee in insolvency of the mortgagor, who takes an assignment of the mortgage, may set up the mortgage and its foreclosure against a claim of dower made by one who joined in the mortgage for the purpose of releasing it. Farwell v. Cotting, 8 Allen, 211. Strong v. Converse, Ib. 557. Brown v. Lapham, 3 Cush. 551. Savage v. Hall, 12 Gray, 363.

Bill dismissed.

NATHAN GEORGE US. POLLY WOOD.

If land which is subject to a mortgage is afterwards sold with full covenants of warranty in two different lots to different purchasers at different times, and the mortgagee afterwards enters upon both of these lots for the purpose of foreclosure, and the foreclosure becomes absolute as to the lot last sold, the owner of the lot sold first, upon a bill seasonably brought, may redeem upon paying the balance due upon the mortgage debt after deducting the full value of the other lot, with the buildings thereon; and it is immaterial that the buildings were erected after he had acquired his title.

In such case the balance due at the time when the foreclosure of the lot last sold became absolute should be ascertained, and interest computed on the same thereafter.

BILL IN EQUITY to redeem land from a mortgage. After the former decision in this case, reported in 9 Allen, 80, a master was appointed to state the account, and by his report the following facts appeared, which were agreed to by the parties as

true :

On the 8th of August 1853 Nathaniel Chessman mortgaged to Asa Wood, the defendant's intestate, a lot of land consisting of the premises now sought to be redeemed and another lot alled the Holmes lot. On the 12th of May 1855 Chessman .nortgaged to the plaintiff the lot now sought to be redeemed, with covenants of warranty. At this time there were no buildings on the Holmes lot. On the 20th of March 1857 Chessman mortgaged to C. B. Holmes the Holmes lot, with covenants of warranty. At this time a building had been erected upon this ot by Chessman. On the 8th of December 1859 the defendant entered upon both of the lots, under the mortgage to her intestate (who meanwhile had died) for the purpose of foreclosure; and the foreclosure of the Holmes lot became absolute; but the

George v. Wood.

plaintiff filed the present bill to redeem his lot on the 5th of December 1862. On the 8th of December 1862 the value of the Holmes lot without the building was $900, and the value of the building was $500 more, making $1400 in all. The defendant never received any rents and profits till after December 8th 1862. and the master stated an account computing interest on the mortgage note up to that date, and deducting the sum of $1400 from the amount so found, and computing interest thereafter upon the balance; and so arrived at the sum which the plaintiff ought to pay in order to redeem. It was contended that this account ought to be made up with reference to the date of the hearing before the master; and he also stated an account made to that date.

The case was reserved for the determination of the whole court.

P. E. Aldrich, for the plaintiff.

T. G. Kent, for the defendant.

CHAPMAN, J. The principles on which this case depends are well settled in this commonwealth. It appears that the defendant's mortgage includes the plaintiff's lot and another called the Holmes lot. After making this mortgage to the defendant, the mortgagor Chessman made the plaintiff's mortgage with the usual covenants of a warranty deed. Chessman thereby became bound to save the plaintiff harmless from the defendant's mortgage, and as between them the plaintiff's debt became a charge. upon the Holmes lot only. Chessman then erected the building on the Holmes lot; and being annexed to the realty, it was held by the defendant's mortgage as completely as the land on which it stood. While the property was in this condition, Chessman mortgaged the Holmes lot to Holmes, who took no better title as against the plaintiff than Chessman had. Chase v. Woodbury, 6 Cush. 143. Bradley v. George, 2 Allen, 392. Welch v. Beers, 8 Allen, 151. If Holmes had redeemed the defendant's mortgage, he would have had no claim on the plaintiff' for contribution. If the plaintiff had redeemed it, he would have had a claim on the Holmes lot for the whole.

The defendant entered upon both lots, as he had a right to do

for foreclosure.

Merrifield v. Baker.

Before the right of redemption expired, the plaintiff brought the present suit to redeem his lot, but Holmes allowed the foreclosure to be completed as to his lot. By this foreclosure the title to the Holmes lot became absolute in the defendant, and was thereby applied, at its value, to the payment of the defendant's debt. West v. Chamberlin, 8 Pick. 336, Hedge v. Holmes, 10 Pick. 380. To that extent the plaintiff's lot was thus relieved from the incumbrance. But as the defendant had not been in actual possession, taking the rents and profits, until his foreclosure was perfected, he is not bound to account for them. Hunt v. Maynard, 6 Pick. 489. After the land became his, the rents and profits were his by virtue of his ownership, and the plaintiff has no right to an account of them.

By the application of this land to the payment of the debt, the plaintiff has had all the benefit of it to which he is entitled. He is entitled to redeem his own lot by paying the balance due on the debt, the value of the Holmes lot being deducted from the debt at the time of perfecting of the foreclosure. The first account of the master being made up on this basis is correct; and the defendant is entitled to interest on the sum found due, till the time when the plaintiff shall redeem.

ALPHEUS M. MERRIFIELD vs. LOVELL BAKER.

A., having executed to B. two mortgages of land to secure certain promissory notes, assigned to B. as additional security certain policies of insurance, from mutual companies, upon the buildings, and afterwards oonveyed the equities of redemption to B., who received the same in full di charge of the notes. A. also at the same time executed a release of all claims against B., and especially of any claim which he had or might have, growing out of the mortgages, or the debts secured thereby, or any matter or thing connected therewith. Subsequently B. received from the insurance companies certain sums for return premiums upon the expiration of the policies. Held, that the release by A. barred his right te recover these sums of B.

CONTRACT for money had and received by the defendant from various insurance companies to the plaintiff's use.

At the second trial in the superior court, before Wilkinson, J.,