Upon the facts established in . this case we think the judgment is right.
*267The defendant is not a Iona fide purchaser without notice, and is in no better situation than his grantor, Margaret Decker would have been, had she been ih possession and the action been brought against her. It is insisted, on behalf of the defendant, that Margaret Decker, by means of the plaintiff’s conveyance to her, acquired a perfect and absolute title to the premises, which was in no respect limited or affected by the instrument executed by her husband, and delivered cotemporaneously with the delivery of the grant. But this will scarcely do. The instrument and the right therein specified are part of the consideration of the grant, and a part of the bargain in which the grant is founded.
The grant and the instrument were executed and delivered at the same time, in fulfillment and performance of a previous paroi arrangement, and are to be read and construed together, as though both were a single instrument. The bargain was the bargain of the grantee’s husband and the plaintiff.
They were the sole parties in interest in the subject-matter, so far as appears. The deed to the wife was a mere gratuity from the husband. It was the fruit of his contract, which, if she accepted, she must accept with all its qualifications and burdens. She must take the burden as well as the benefit, and cannot be allowed to hold the one and reject the other. She might have refused to accept the deed, as she was in no way interested in the subject-matter out of which it sprang, and was under no obligation to have anything to do with the transaction. -But having accepted it, she must hold it, as it is, affected by the whole transaction in which it had its origin and consummation, and for what it is, in fact and in law; and cannot repudiate or change anything connected with it without restoring what she has received. If she retains what she gets by the instrument the law will oblige her to sanction and be bound by the whole transaction, and will make it hers, the same as though she authorized and directed it originally.
The law will charge the instrumentalities to her account, and impute to her all the concurrent acts which affect the *268transaction, the same as though she had been the party originally. (Paley on Agency, Dunlap’s ed., 171, n, o; Bennett v. Judson, 21 N. Y., 238; Story on Agency, § 256.) The instrument given to the plaintiff,-therefore, when the deed was delivered, whatever may be its legal effect, is her instrument so far as it affects her title under the conveyance. This instrument, in express terms, provides that the plaintiff may at any time sell the property by paying to the husband and agent of the grantee the sum of $400, without interest, and that the plaintiff shall have the sole and undivided use of the house and lot during her natural life. One part of the instrument is clearly in the nature of a defeasance, and renders the deed but a mortgage within the provisions of our statute. (1 R. S., 756, § 3.) It is, in point of law, merely a mortgage by way of securing the money advanced, reserving to the mortgagor the right of possession and occupancy during her life. The instrument is in writing, and is under seal, and shows plainly what was intended by the parties to the transaction, and it comes within the terms of the statute. No seal was necessary; buf it works no harm; Reading the two instruments together, the deed becomes a mere mortgage, reserving to the mortgagor the right as against the mortgagee of possession and occupancy during her natural life.
The defendant, as grantee of the plaintiff’s grantee, is only an assignee of this limited mortgage, and was not entitled to possession. Had it been an ordinary mortgage, and the mortgage debt due, the defendant, being in possession, might perhaps have retained it until the debt should be paid.
But here, by the very terms of the mortgage, the plaintiff’s right of possession is secured to her for life, and, also, the right of paying off the debt at any time she might choose, without interest. The judgment is therefore right, and should be affirmed.
Judgment affirmed.