A chronological statement of the facts to be gathered from *Page 112 the bill and amendments appears to be as follows: November 11, 1854, George W. Clark executed to his father, Samuel H. Clark, a mortgage of certain land in Enfield, to secure him for his liability on a $1,200 note to Lorenzo Day, the whole of which said Samuel H. subsequently paid for the benefit of George W. June 6, 1866, George W. Clark executed another mortgage to his father of land in Canaan, to secure the payment of two notes from him to his father, set out in the bill. November 20, 1856, Samuel H. Clark made his last will, containing the following item: "I give and devise to my son, George W. Clark, and Eliza Clark, wife of the said George W. Clark, all my interest in the real estate of which I now hold a mortgage from my said son George W. Clark, situated in North Enfield, county and state aforesaid, it being the same real estate that my son George W. Clark bought of Lorenzo Day; also all my interest in the real estate of which I hold a mortgage from my son George W. Clark, situated in Canaan, in said county and state aforesaid, it being the same estate that my son George W. Clark bought of C. M. Dyer and S. R. Godfrey, to have and to hold the same to them during their natural lives; and, at their decease, said interest to be divided as follows: "Two thirds to remain to Charles H. Clark, and one third to Clara Clark, children of the said George W. Clark and Eliza Clark." The lands mentioned in the will are the same covered by the mortgages, and the testator had no interest in them except by virtue of the mortgages.
Samuel H. Clark died March 10, 1862, and his will was duly proved and allowed. Afterwards, Charles H. Clark, the remainder-man as to two thirds of whatever estate passed to his father and mother by the will, died. January 3, 1870, George W. Clark was adjudged a bankrupt, James G. Ticknor appointed assignee, and all assignee's deed, in some form, executed to Daniel Tilden, now made a party defendant to this bill.
The plaintiffs are Eliza H. Clark, wife of the defendant, George W., and their daughter, Clara E. Matthews, who has the remainder as to one third of whatever passed to her father and mother by the will.
The prayer, as to George W. Clark, is for a foreclosure of the mortgages, and, as to Tilden, that he be restrained by injunction from proceedings at law to assert his title under the assignee's deed.
Let us now see, if we can, what was the state of the title at the date of George W. Clark's bankruptcy. In the first place, I think it does not fairly admit of doubt that it was the intention of Samuel H. Clark, as expressed in his will, to give to his children and grandchildren, in the manner specified, the property represented in his mind by the notes and mortgage against his son. He called it all interest in real estate. As against the mortgagor, it was all interest in real estate. The gift on its face is not, strictly, a mere naked assignment of the mortgage without the debt. It must be assumed that he meant to give something. All his interest in the real estate of which he held the mortgages could not pass by a naked assignment of the mortgages. To carry that interest, the debt must, of necessity, pass; and I am of *Page 113 opinion that such is the only reasonable construction to be put upon the will. How, then, did the title stand upon the probate of this will?
The equity of redemption was in George W. Clark. He and his wife were seized of life estates in the same premises; remainder, as to the mortgage interest, in their children, Charles H. and Clara, — two thirds in Charles and one third in Clara.
What was the character of the seizin of George W. and his wife, as to their life estate in the mortgage interest? I think, under the statute of 1862, it was that of tenants in common. I do not think it is necessary to review our decisions upon that statute, which, as it seems to me, leaves no other conclusion possible. The whole tenor of those decisions is to show that the material rights of the husband in the estate, real or personal, of his wife, are practically annihilated, except when preserved by special provisions of the law, and the common law idea of the legal unity of husband and wife is abolished. Clough v. Russell, 55 N.H. 279, and cases cited.
I think the husband and wife were not invested or seized of their life estate in this mortgage interest by virtue of the will by entireties, but as tenants in common, the same as though the marriage relation had not subsisted between them.
The next event was the death of the remainder-man, Charles H. Clark. What, then, became the state of the title? Whether this remainder, this interest in the estate of the mortgagee, be regarded as real or personal estate, it passed by the statute of distribution to the father, George W. Clark. Gell. Stats., ch. 184, secs. 1, 6.
George W. Clark then had (1) the equity of redemption in the whole; (2) a life estate in an undivided moiety of the interest of the mortgagee in the whole, as tenant in common with his wife; (3) the remainder as to two thirds of the mortgage interest. There was outstanding (1) a life interest in one half the mortgage in his wife, Eliza H. Clark, and (2) a remainder as to one third the mortgage in his daughter, Clara E. Matthews.
This was the state of things at the date of the assignee's deed. The question is, What did that deed convey? The defendant Tilden contends that it passed all that George W. Clark took under his father's will, and all that he took by inheritance from his son Charles H. Clark as well as his equity of redemption. Whether that is so, manifestly depends upon whether the equity merged those fragments of the interest of mortgagee when the two estates met in him. It seems to me no such merger could have taken place. The owner of any part of a mortgage has the whole premises for his security. His mortgage cannot be extinguished as to any part or interest, whether divided or undivided, in the land conveyed, without his assent. In order that the equity of redemption may drown the mortgage, — the whole mortgage interest, that is, — the whole legal estate must meet the equity in the same person. It follows that at the time of the bankruptcy George W. Clark had two distinct interests in the land, those of mortgagor and mortgagee, which were kept from blending by the fact that part of the mortgage *Page 114 interest was at the same time outstanding in other persons. One of those interests, the equity of redemption, passed by the assignee's deed, while the other, that of mortgagee, under our law, would not pass by that deed. The mortgage interest, therefore, which George W. Clark took by the will of his father and by inheritance from his son, still remains in his assignee in bankruptcy. For this reason I think the assignee ought to be made a party to this bill. Clearly, a decree ought not to be made behind his back, because, if Tilden should redeem, George W. Clark's interest in the redemption money will belong to his creditors, and if Tilden should not redeem, the assignee still has obvious rights to be protected. The mere suggestion that all George W. Clark's right and interest in the premises have passed to the assignee is enough to show that the assignee ought to be a party. When all persons interested are before the court, there can be no difficult in making a decree that will secure the rights of all and do no injustice to the creditors of George W. Clark.
I think the plaintiffs should have leave to amend their bill by making the assignee a party upon such terms as the circuit court may order, and that then the demurrer should be overruled.
Demurrer overruled.