15 Mass. 277 | Mass. | 1818
The general position, that a widow is not dowable of an equity of redemption, we think, is not true, in the extent contended for by the counsel for the tenant. No case has yet been decided upon that principle. In the cases cited,
In this commonwealth, an equity may be, to some purposes, con sidered a legal estate. It is so, in fact, against all but the mortgagee and those holding under him. For he that is seised of it may maintain his writ of entry, or his action of trespass, against any stranger ; and he is generally in possession of the land when mortgaged, until condition broken.
The tenant, in the case at bar, cannot be considered as now holding under the mortgage. He came in by purchase under the demandant’s husband, and procured an assignment of the mortgage, to strengthen his title. But the debt has been paid by the administrator of Tattle, who conveyed to Jonathan Snow, the demandant’s husband. The mortgage cannot be considered as subsisting, but as cancelled and extinguished ; and the tenant holds under Snow, and not under the mortgagee — so that there is no legal reason why the demandant should not be endowed,
Tenant defaulted
Powell on Mortgages, 718. — 4 Mass. Rep. 566, Holbrook vs. Finney. — 7 Mass Rep. 253, Eldredge & Al. vs. Forrestal & Ux. — 8 Mass. Rep. 491, Popkin vs Bum stead. —10 Mass. Rep. 364, Bird vs. Gardner.
See note to Sheafe vs. Oneal, 9 Mass. Rep. 13, and the cases there cited.— Gibson vs. Crehore, 5 Pick. 146.— Collins vs. Torry, 7 Johns. R. 278.— Shoemaker vs. Walker, 2 Serg. R. 554.— Reed vs. Harrison, 12 Serg R. 18. — Clairborne vs. Henderson, 3 H. & M. 322.