The opinion of the court was delivered by
Bennett, J,The court can discover no reasons for disturbing the verdict of the jury. They were told, that if they found, that the mortgage incumbrance which had been placed by Goodwin and hiá wife upon a portion of her lands, for the.benefit of Goodwin, and to secure his debt, *178and which was to be paid out of the consideration paid for qiese ]anc|S) was equal to, or greater than, the whole interest which the husband had acquired therein, by the means of intermarriage with his wife, then it would be. their duty to return a verdict for the defendants. The charge proceeds upon the ground that the wife, upon the sale of her lands, is equitably entitled to such a portion of the consideration, as would equal her reversionary interest. In the case of Neimcuzwitz v. Gahn et al., 3 Paige, 614, it is held, if the wife unites with the husband in a mortgage of her real estate, merely as a security for the. payment of his debt, she is entitled to have his. interest in the estate, as tenant by the curtesy, first sold and applied to the payment of the debt, in exoneration of her estate in the mortgaged premises.
This equity of the wife was considered a claim paramount to that of a judgment creditor, who had but a general lien upon the husband’s interest in the premises, subsequent to the mortgage. The wife having pledged her own estate for the husband’s debt, was considered as a surety for the husband, and entitled to the same equitable rights as other sureties. Clancy, — Husband and Wife, 589, — sums up the rule as derived from the English cases, thus: where the transaction is a mortgage by husband and wife, of her real estate, with a view to pay his debts, or to promote his interest, she will be considered, in equity, as a creditor for the money, and as entitled to have his personal assets applied in discharge of the amount; the court, looking upon him as the debtor, and on her land only as an additional security.” In equity the wife must be considered as a distinct person from the husband ; and, in a proper case may, by subrogation, be placed in the shoes of the mortgagee. Patrick v. Pawlet, 2 Atk. 383; Aguilar v. Aguilar, 5 Mod. R. 414.
By the charge of the court the wife was not to be protected beyond her reversionary interest in her lands, leaving the husband’s interest, jure uxoris, subject to the claims of his creditors. It is true, the mortgage did not incumber but a part of the wife’s lands, but we do not see that this should make a difference. Though the husband had acquired a life estate in all the real estate of the wife, as tenant by the curtesy initiate, and though chancery could not withdraw such *179legal estate from the husband, for the purpose , of making a separate provision for the wife and children, upon the ground that it was once her separate property, and he was likely to squander it; yet, as the wife’s lands, that is, her reversionary interest, as well as her husband’s life estate, were pledged'for the husband’s debt, she would stand in the nature of a surety for the husband, for so much as would be equal to the excess of the incumbrance above the value of the life estate of the husband in so much of the lands as were included In the mortgage. Standing as a creditor to the husband, for this excess, most clearly, then, it was right that the wife should be reimbursed such excess, upon the sale of her entire lands, though the money should be drawn from that portion of the consideration which might have been paid as an equivalent for the life interest of the husband in the lands not covered by the mortgage. Such portion of the consideration as was equivalent to the wife’s reversionary interest, belonged to her. If, then, all that has been done is to secure to the wife, out of the consideration paid for these lands, a sum not exceeding her reversionary interest in them, most certainly there can be no ground of complaint. Though the husband and wife, and-the grantees, had this object in view at the time of the sale, It furnishes no ground for the allegation of a fraudulent intent. It was precisely what the parties had a right to do ; and it was proper in all respects that it should have been done. Judgment affirmed.