The opinion of the Court was delivered by
Shepley J.The plaintiff, by assignment, with the consent of the intestate, has acquired the same rights, which Gardiner would have had in the joint property. The intestate and Gardiner were mortgagees of certain lots of land to secure debts due to them jointly. They could not be considered as partners ; nor can the survivor claim by virtue of a lien on the securities. It was decided, in the case of Appleton v. Boyd, 7 Mass. R. 131, that a conveyance.in mortgage to two persons to secure the payment of a debt jointly doe to them, did not come within the statute providing, that conveyances to two or more shall be adjudged to convey estates in common, unless a different intention be therein disclosed. And of course, that they held the estate in such a case as joint tenants. In the case of Goodwin v. Richardson, 11 Mass. It. 469, while the case of Appleton v. Boyd was approved, it was decided, that the foreclosure of the mortgage operated as a new purchase, and that the grantees afterwards held the estate as tenants in common. In Randall v. Phillips, 3 Mason’s R. 378, the case of Appleton v. Boyd is alluded to as having been erroneously decided, and it. is there shown, that one of the reasons assigned, viz. that “ upon any other construction but one moiety of the mortgaged premises would remain as collateral security for the joint debt,” was founded on an erroneous view of the law. But another reason assigned was, that, “ as upon the death of either mortgagee the remedy to recover the debt would survive, we are of opinion, that it was the intent of the parties, that the mortgage or collateral security should comport with that remedy; and for this purpose that the mortgaged estate should survive.”
It may be added, that the estate of mortgagees ■ would not come within the mischief, which the Statute was designed to remedy. That mischief was to prevent the survivor from ac*434quiring the whole estate by the death of the other grantee. While the estate continues to be an estate in mortgage, no such result can take place, for it is only security fon the debt, and the whole interest in that does not become vested in the survivor. It is the remedy only, which is vested in the surviv- or, who must account with the legal representative of the deceased, for his share of the debt. There are also difficulties attending the doctrine, that the mortgaged estate is held as a tenancy in common after the death of one of two mortgagees. The security for the debt would be divided, and the remedy upon it might be. The foreclosure, under different suits, might take place at different times, and the right to redeem one half expire before that of the other. There might be a difficulty in compelling the heirs of the one deceased to aid in the foreclosure ; and if they should enter and take the rents and profits of one half of the estate, there might be serious difficulties arising from their want of ability to refund, or other cause, in adjusting the rights between the mortgagor, or his assignee, and the mortgagee and heirs. The rights of the mortgagor might be protected by a process in equity, but in case the heirs were unable to .pay, and had no interest in the debt, the effect would be only to throw the loss upon those entitled to the fruits of the contract secured by the mortgage. And 'it may often happen that the executor, or administrator may be required to appropriate these fruits in such a manner as to exclude the heirs from all beneficial interest in them. No practical inconvenience has been experienced from the construction given to the Statute in the case of Appleton v. Boyd, and none is apprehended. By it the' most simple remedies are afforded, with the least liability to inconvenience and loss ; and it is not perceived, that any legal principle, or expediency requires a departure from it. The survivor, therefore, in this case, will be entitled .to take possession of the mortgage securities, and from them obtain her own share of the debt secured by them; and to recover from the administrator what he has collected on them.