In this case I am unable to go with my brother Johnson the length he has gone. If Baker had taken an assignment of the mortgage given by the plaintiff and her husband to Gamber for the purchase money, then I think he might be regarded as holding under it. But instead of doing so, he procured it to be discharged and satisfied of record. There can be no doubt that the husband of the plaintiff acquired an estate in fee by the deed from Gamber, subject to be defeated by the mortgage to the latter. (Runyan v. Mersereau, 11 John. 534, 2d ed. 593. Jackson v. Bronson, 19 Id. 325.) These cases, as well as many others that might be cited, hold that at law as Avell as in equity, a mortgage is merely a security, and the mortgagee has but a chattel interest, and that the freehold is in the mortgagor.
Ho one Avould deny that the plaintiff could maintain this action if the mortgage was still unpaid and in the hands of Gamber the mortgagee, or any assignee of him, other than Baker or his grantees. And it seems to me it would be going beyond any decided case in this state or elseAvhere, with one exception, to hold that a mortgage satisfied and discharged of record can be set up by the assignee of the husband as a bar to his widow’s dower. That exception is the case of Popkin v. Bumstead, (8 Mass. Rep. 491,) which I admit goes the length of the doctrine contended for. I have examined it with care, and feel constrained to dissent from the reasoning and conclusion of the *541court by which it was decided. I think it should be classed among those hard cases which make bad precedents. It is hard, and apparently unjust, in most cases, to allow a widow to recover dotver against the conveyance of the husband. But such hardship ought not to weigh with courts to induce them to overrule settled principles, or to make law for parties. Where a mortgage is paid and satisfied of record, it is destroyed and blotted out of existence. The payment and discharge of record of the mortgage in this case had the effect to remove it as a cloud and incumbrance of Baker’s title, and that I think was its only effect upon his title. If he intended to keep it alive and operative for any purpose, he should have procured it to be assigned to him. Possibly Gamber would not have assigned it. And I know of no process by which he could be compelled to'do it. If it should never be enforced, he, Baker, or his assigns, would not be injured by it in fact. If the mortgagee should foreclose, in equity, the plaintiff would have to be a party, and then by paying a share as between her and Baker or his assigns she would be protected in her dowrer. By paying it off voluntarily it becomes extinguished.
I incline to think that Baker might, after he had paid the mortgage, have filed his bill to be subrogated in place of the mortgagee, and have a decree that the plaintiff contribute or be barred. But that, it seems to me, was his only remedy after the mortgage was discharged. The doctrine of subrogation, however, prevails only in a court of equity, and is never enforced in a court of law. A defendant in a judgment, who is merely surety for his co-defendants, and who is compelled to pay the judgment, can not at law enforce the lien of the judgment against his principals, but must resort to a court of equity, to be subrogated to the rights of the plaintiff. This, too, looks hard; nevertheless, the forms of law require it. If Gamber was willing to assign the mortgage, it was Baker’s folly that he did not take it. If he had done so, the plaintiff would have been put to her suit in equity for her dower. As it is. I think Baker or his assigns must go there for whatever remedy he or they may be entitled to.
*542There is nothing, in my judgment, in the other points raised by the defendant’s counsel. The evidence does not, I think, show an exchange of lands within the meaning of the statute. (2 R. ¡3. 740, § 3.) The conveyance by Eunyan to Baker of the premises in question was in the nature of a bargain and sale, and the conveyance of the five acres by the latter to the former was in part payment. The amount Baker was to pay Eunyan for the premises was $1600. This was made up by Baker’s assumption to pay the balance due on the mortgage, $1200, and the conveyance of the five acre lot at $650. This, however, overpaid the first amount of $1600. To meet such overplus, Eunyan let Baker have a horse at $100, and a bond against one Eippey upon which was due about $300. This again brought Baker in debt upon this trade, and the matter was arranged between them by applying another indebtedness of Eunyan to Baker, and allowing Eunyan to remain in possession of the premises in question, long enough to make all matters even between them. We all agree that this would not amount to an exchange of lands, under the statute.
My opinion is, that a new trial should be denied.
Selden, J. concurred.