The judge rightly refused to rule as requested by the defendant. If the note made by the husband had been indorsed as well as assigned by the payee to the wife, so as to pass both the legal and the equitable title in it to her, the note might, in law at least, have been extinguished, because of her incapacity to be a party to a contract with, or to an action against, her husband. Chapman v. Kellogg, 102 Mass. 246. Abbott v. Winchester, 105 Mass. 115. But as the note is only shown to have been assigned to the wife, and does not appear to have been indorsed to her, (and the counsel, upon being inquired of, have stated that no evidence upon this point was introduced,) the note remained in full force, and might have been sued against her husband, in the name of the payee, for her benefit. Stearns v. Bullens, 8 Allen, 581. Amherst Academy v. Cowls, 6 Pick. 427. Tucker v. Tucker, 119 Mass. 79.
By the assignment of the mortgage, the legal as well as the equitable title in the mortgaged property vested in the wife, although she could not, for the like reason, foreclose it while her husband continued to own the equity of redemption. Stetson v. O'Sullivan, 8 Allen, 321. Bemis v. Call, 10 Allen, 512. Tucker v. Fenno, *299110 Mass. 311. Model Lodging House Association v. Boston, 114 Mass. 133. Comerais v. Wesselhoeft, 114 Mass. 550. The wife, being the lawful holder of a mortgage of personal property, duly recorded, might maintain any action necessary to protect her title or possession thereof against a third person. Boise v. Knox, 10 Met. 40. Landon v. Emmons, 97 Mass. 37. Meserve v. Meserve, 63 Maine, 518. And she might well, in her demand upon the attaching officer, under the Gen. Sts. c. 123, § 63, describe the sum due upon the note held by the payee for her benefit, and secured by the mortgage held by herself, as due to her upon the mortgage. Bicknell v. Cleverly, 125 Mass. 164.
The case of Phillips v. Frye, 14 Allen, 36, cited for the defendant, is essentially different from the case before us. In that case, the note and mortgage executed by the husband to a third person for the benefit of the wife, which were held invalid and incapable of being enforced against the husband’s estate after his death, were made in 1853, to secure the repayment to her of money which she had previously applied to the payment of his debts, and which was not shown to have been secured to her sole and separate use, by deed or will, under the St. of 1845, c. 208, and which therefore, under the then existing laws, might be reduced to possession or used by the husband,' and had, by the payment of his debts, been effectually applied to his use without creating any legal or equitable liability on his part; so that the note and mortgage subsequently executed by him were purely voluntary and without any legal consideration. See 14 Allen, 38; Alexander v. Crittenden, 4 Allen, 342; Dunn v. Sargent, 101 Mass. 336.
In the present case, the defendant does not appear to have denied that the wife, under the Gen. Sts. c. 108, § 1, had the absolute ownership of the money received by the husband, or that the note and mortgage made by him to secure the payment of that amount to Higgins for the benefit of the wife were originally valid; but the defence appears to have been rested solely upon the position that the note was extinguished by being assigned to the wife. As this defence, for the reasons already stated, cannot be maintained, the case must, according to the terms of the report, be
Referred to an assessor.