In this case husband and wife each owned .an undivided part of the real estate. • A mortgage upon the husband’s portion necessarily described all the real estate.
It is conceded that, as a general rule, the joining by a wife with her husband in a mortgage is only effectual to release her inchoate right of dower.
If, howevei-j she is to be considered as a mortgagor, and not merely as signing the instrument to cut off lier right of dower, then as to that undivided portion of the real estate owned by her, and which alone she could mortgage, the mortgage must be treated as if it were a separate and independent mortgage. Like any other mortgage, the consideration for it is open to inquiry. (Baird v. Baird, 145 N. Y. 659; Juilliard v. Chaffee, 92 id. 529.)
The plaintiff stands in the shoes of the mortgagee.
“ The proposition is well established that the assignee of a mortgage takes it subject to all the defenses, legal and equitable, which the mortgagor has against the enforcement of it. by the assignor at the time of the assignment.” (Hill v. Hoole, 116 N. Y. 299; Ingraham v. Disborough, 57 id. 421; Dodge v. Manning, 29 App. Div. 29 ; Trustees of Union College v. Wheeler, 61 N. Y. 88; Westfall v. Jones, 23 Barb. 9, approved in Hill v. Hoole.).
In this case it appears that the appellant received no part of the consideration for the mortgage; as to her property, then, the mortgage was without consideration and is not' enforcible against her.
The defendant Harriet M. Ash, having joined in the mortgage as the wife of Benjamin W. Ash, under ordinary circumstances the presumption would be that she merely intended to release her inchoate right of dower; but it appearing that the real estate covered by the mortgage embraced real estate owned by her as the tenant in common with her husband, thereby causing a doubt as .to whether a mortgage which, under ordinary circumstances, would only be con- *186■ strued .as a release or conveyance-.of an inchoate right of. dower, did, according to its terms, also include the property owned by her .personally, I think parol evidence was admissible to show that she executed it only upon the understanding' and agreement that' it was ■ to cover only her dower interest in her husband’s' property.
It seems to me, therefore, that as to that portion of the real estate óf- which the appellant, Harriet M. Ash, is the owner, the •judgment should be reversed,
Judgment affirmed, with costs.