The first question which presents itself in this case is, whether any interest, and if any interest, what, passed to the plaintiffs by the will of Samuel H. Clark. By the terms of the will the testator devised "all my interest in the real estate of which I now hold a mortgage." These are the operative words, and would appear to have been carefully selected by the testator, who made use of the same phrase twice in regard to different mortgages. What is the meaning of those terms? Looking at the will in the light of all the circumstances known to us, what is the intention of the testator as derived from a fair construction *Page 110 of that will? We learn from the case that the first mortgage was given to secure the testator against his liability on certain notes signed by him as surety with his son George. The other mortgage was given to secure the payment of money loaned by the testator to said George; and it appears from the case, that at the time of the testator's death the whole amount secured by those mortgages was due to him.
The testator did not in terms convey the land, but he did convey all his interest in the mortgaged land. What was this interest at that time? It was the right to hold that land in fee simple, subject, however, to have the estate defeated by payment to him, for his own use, of the money secured by the mortgage, and the further right to make that title absolute if the amount so secured were not paid to him. If this be not the whole mortgage debt, it would, I think, be pretty difficult to say what more remains. Admitting it to be true, that, if the mortgagee in terms convey the land absolutely, thus indicating his intention to separate the land from the debt, as he has no interest separate from the debt, his deed will pass nothing, still I think that when the mortgagee expressly mentions and alludes to his mortgage interest, and conveys that, he does not indicate any intention to separate the land from the debt, but, on the contrary, indicates his intention to pass the mortgage, that is to say, the debt and security. I am therefore of the opinion that the language used by the testator manifests his intention to convey as well the mortgage debt as the land by which it is secured.
It appears that the testator died in 1862, after the act in regard to the estates of married women took effect, whereby married women, so far as their property not derived from their husbands was concerned, became practically endowed with the rights and subject to the liabilities of unmarried women. That mysterious joint tenancy in which the subtle genius or the English real law so much delighted itself, where the tenants took not per me et per tout but by entireties, could no longer arise. The existence of a married woman, so far as her property is concerned, is no longer by our law merged in that of her husband, but she has become a separate being, endowed, so far as her separate estate is concerned, with the powers and subjected to the liabilities of unmarried women.
By Gen. Stats., ch. 121, sec. 14, this devise must he construed to create a tenancy in common, unless words are used clearly expressing an intention to create a joint tenancy. As this cannot be said of the words which are used in this devise, it follows that the estate created by this devise is a tenancy in common, — one undivided half to George W. Clark during his life, and one undivided half to Eliza H. Clark during her life, with the remainder as to two thirds to the grandson Charles, and as to one third to the granddaughter Clara. The grandson Charles having deceased after the death of Samuel and before the bankruptcy of George, his portion was at once inherited by his father, so that George W. Clark at the time of his bankruptcy was the *Page 111 owner in fee of two thirds of one half of the mortgage. and also of the remainder of two thirds of one half after the death of Eliza.
The first question which arises in this part of the case is in regard to the effect produced by the inheritance, such as it was, by George W. Clark of his share of the mortgage. How does the doctrine of merger operate? Can there be a merger of the estate by mortgage in a part of the land in the equity of redemption of the whole?
It appears that, in 1870, the defendant Tilden purchased of the assignee of George W. Clark all his interest in the land "which may be held by attachment or levy on execution." What was that interest? I see no way by which, consistently with the rights of all the parties, George W. Clark's interest as mortgagee could be considered as merged in or united with his interest as mortgagor. Where land is mortgaged for security, as this was, the whole land is held as security for the whole debt. The fact that G. W. C. had become owner of an interest in the mortgage debt would by no means prevent the whole estate being held as security for that part of the mortgage debt in which his wife was interested. He could not be absolute owner of a part discharged from the mortgage, and mortgagor holding the other part of the estate subject to his wife's interest in the mortgage debt. The only mode I can see of preserving the rights of all the parties, is by keeping the mortgage and the equity separate, and considering G. W. C. as interested with his wife and others as mortgagee, and separately owning the equity of redemption. Sahler v. Signer, 44 Barb. 606.
Under such circumstances what interest would the assignee's deed convey? This is a deed, and not a will. It says nothing about the mortgage. It conveys only the interest which may be held by attachment or levy on execution. There is nothing to manifest an intention to convey the mortgage, or any interest under it. According to all the authorities, which are fully cited by my brother SMITH, it could convey no interest by virtue of the mortgage, and must, therefore, convey the equity of redemption, and nothing more; and it appears to me that this is all the right which he acquires. It is difficult to see why the assignee in bankruptcy did not take all the bankrupt's interest in the mortgage debt, and why he does not now hold it, having, according to my view of the case, never sold or parted with it.
If the assignee does not need this to administer in payment of debts, or for any other purpose, it would, of course, belong to the defendant (George W. Clark), and if the defendant purchaser under the assignee's deed should redeem, George W. Clark would of course be entitled to his share, as it might turn out to be under the will.
I do not see how this matter can be determined without making the assignee a party to this suit. I see no reason why the amendments which are proposed should not be made on such terms as may be deemed equitable.
I think, an the assignee being made a party, a proper decree of foreclosure should be made.