(dissenting.) Although it has been contended by the counsel for the respondent in this case that a mortgage in this state is but a security for debt, and has been so ruled even in our counts of law, and is therefore now no longer what it once was here, there' is no doubt that doctrine was directly derived from courts of equity, in which it originated; nor is there any doubt now, here or elsewhere, that the equity of redemption inherent in it was originally derived from the Roman law, and that it is purely the creature of courts of equity; and we have the authority of both Chancellor Kent and Judge Story, the highest American authorities on the subject, for stating, as illustrative of some of the doctrines admitted into equity jurisprudence both in this country and in England, that under the civil law, although the debt for which the mortgage or pledge was given" was not paid at the stipulated time, it did not amount to a forfeiture of the right of property of the debtor therein. It simply clothed the creditor with the' authority to sell the pledge, and reimburse himself for his debt, interest, and expenses, and the residue of the proceeds of the sale then belonged to the debtor. This authority to make a sale might be exercised, not only when it was so expressly agreed between the parties, but when the agreement between them was silent on. the subject. Even an agreement between them that there should be no sale was so far invalid that a decretal order of sale might be obtained upon the application of the creditor. On the other hand, if, by the agreement, it was expressly stipulated that, if the debt was not paid at the day, the property should belong to the creditor in lieu of the debt, such a stipulation was held void, as being inhuman and unjust. These instances are sufficient to show some strong analogies between the Roman law and the equity jurisprudence of England on the subject of mortgages, and to evince the probability, if not the certainty, that the latter has silently borrowed some of its doctrines from the former source. 2 Story, Eq. Jur. §§ 1005, 1008, 1009, 1011; 4 Kent, Comm., 136, 138-140-Mortgages of real estate were of very early origin in England. In *315the time of Glanville, the mortgage of lands, as security for a loan, was in use, though during the feudal ages it was doubtless under the same check with the more absolute alienation of the fee, and both the alienation and mortgage of land were permitted only with the concurrence of the lord. 4 Kent, Comm., 136. Kent further remarks: “The English books distinguish between a vadium, vivum and vadium mortuum. The first is when the creditor takes the estate to hold and enjoy it, without any limited time for redemption, and until he repays himself out of the rents and profits. In that case the land survives the debt ; and, when the debt is discharged, the land, by right of reverter, returns to the original owner. In the other kind of mortgage the fee passed to the creditor, subject to the condition of being defeated, and the title of the debtor to be resumed, on his discharging the debt at the day limited for the payment; and, if he did not, then the land was lost; and became dead to him forever. This latter kind of mortgage is the one which is generally in use in this country. The Welsh mortgages, which are very frequently mentioned in the English books, though they have now entirely gone out of use, resembled the vivum vadium of Coke or the mortuum, vadium of Glanville; for though in them the rents and profits were a substitute for the interest, and the land was to be held until the mortgagor refunded the principal, yet, if the value of the rents and profits was excessive, equity would, notwithstanding any agreement to the contrary, decree an account.” Id., 137. “ It was a hard and unconscientious, but a lawful, contract; and Glanville, with primeval frankness and sim-' plicity, does not scruple to condemn it as unjust, while he admits it to be lawful.” Id. note c. “ We have already had occasion,” says Judge Story in his work before cited, “to take notice of the inconveniences attendant upon the creation ot mortgages in fee, and of the substitution in their stead of terms for years. But, in truth, whether the one course or the other was adopted, so far as the common law was concerned, the mortgagor was subjected to great hardships and inconveniences if he did not strictly fulfill *316the conditions of the mortgage at the very time specified, as he thereby forfeited the inheritance or the term, as the case might be, however great might be its intrinsic value compared with the debt for which it was mortgaged. Courts of equity, therefore, acting upon their general principles, could not fail to perceive the necessity of interposing to prevent such manifest mischief and injustice, which were wholly irremedial at law. They soon arrived at the just conclusion that mortgages ought to be treated as the Roman law had treated them,—as a mere security for the debt due to the mortgagee; that the mortgagee held the estate, although forfeited at law, as a trust; and that the mortgagor had what was significantly called an equity of redemption, which he might enforce against the mortgagee, as he could any other trust, if he applied within a reasonable time to redeem, and offered a full payment of the debt, and all equitable charges.” 2 Story, Eq. Jur., §§ 1012, 1013 ; 4 Kent, Comm., 140, 158, 159. The equity doctrine is that the mortgage is a mere security for the debt, and only a chattel interest, and that until a decree of foreclosure the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law, and it is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law. The courts of law have also, by a gradual and almost insensible progress, adopted 'these equitable views of the subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction. Except as against the mortgagee, the mortgagor, while in possession and before foreclosure, is regarded as the real owner, and a freeholder, with the civil and political rights belonging to that character; whereas the mortgagee, notwithstanding the form of the conveyance, has only a chattel interest, and his mortgage is a mere security for a debt. This is the conclusion to be drawn from a view of the English and American authorities. The equity of redemption is not liable, under the English law, to sale *317on execution as real estate. It is held to be equitable assets, and is marshaled according to equity principles. But in this country the rule has very extensively prevailed that an equity of redemption was vendible as real property on an execution at law, and it is also chargeable with the dower of the wife of the mortgagor. On the other hand, the estate of the mortgagee, before foreclosure or at least before entry, is not the subject of execution,—not even though there has been a default, and the condition of the mortgage forfeited. The English policy led to an early adoption of these just and reasonable views of the character of a mortgagor; and it was settled in the reign of Charles II. that the executor, and not the heir of the mortgagee in fee, was entitled to the mortgage money; for, as Lord Nottingham observed, the money first came from the personal estate, and the mortgagee’s right to the land was only as a security for the money. 4 Kent, Comm., 160, 161.
Another doctrine of equity in relation to mortgages is that the mortgagee is entitled (unless there be some agreement to the contrary) to enter into possession of the land, and to take the rents and profits if he chooses so to do. But in such cases he must account therefor towards the discharge of the debt, after deducting all reasonable charges and allowances. So he may grant leases of the premises, and avoid any leases which have been made by the mortgagor subsequent to his mortgage. Still he is treated so entirely as a trustee that he cannot exercises any right over the mortgaged property (such, for example, as the renewal of a lease) for his own benefit, but all acts of this sort done, and all profits made, are deemed to be for the benefit of the party who is entitled to the estate. 2 Story, Eq. Jur., § 1015. The mortgagee in possession holds the estate with duties and obligations in some respects analogous to those of a trustee; and, if he takes the renewal of a lease, it is for the benefit of the estate, and not for his own benefit. He can make no gain or profit out of the estate, which he holds merely for his indemnity. 4 Kent, Comm., 167. And this, we may remark, has long been a cardinal rule in courts of equity, of general *318application to trustees of every description; nor can there be any exception taken, we think, to the rule as above stated by Chancellor Kent, in its application to a mortgagee in possession of the mortgaged premises; for with all that has been said by eminent judges, both in courts of law and equity, with regard to the strict and critical propriety of denominating, in such a case, the mortgagee a trustee of the mortgagor, it is conceded by all, and well settled upon the authority of the leading case of Cholmondeley v. Clinton, 2 Jac. & W., 182, that it is, as least in equity, a trust mi generis, and of a peculiar nature, which is well defined in the able opinion of Sir Thomas Plumer in that case, in the following terms : “ The ground on which a mortgagee is, in any case and for any purpose, considered to have a character resembling that of a trustee, is the partial and limited right which, in equity, he is allowed to have in the whole estate, legal and equitable. He does not at any time possess, like a trustee, a title to the legal estate distinct and separate from the beneficial and equitable. Whenever he is entitled at all to either, he is fully entitled to both, and to the legal and equitable remedies incident to both. But in equity his title L confined to a particular purpose. He has no right to either, nor can he make use of any remedy belonging to either, further than and as may be necessary to secure the repayment of the money due to him. When that is paid, his duty is to reconvey the estate to the person entitled to it. It never remains in his hands clothed with any fiduciary duty. He is never intrusted, with the care of it, nor under any obligation to hold it for any one but himself, nor is he allowed to use it for any other purpose.” '
As to what constitutes a mortgage, there is no difficulty whatever in courts of equity, although there may be technical embarrassments in courts of law. The particular form or words of the conveyance are unimportant; and it may be laid down as a general rule, subject to few exceptions, that wherever a conveyance, assignment, or other instrument transferring an estate is originally intended between the parties as a security for money, or for any *319other incumbrance, whether this intention appears from the same instrument or from any other, it is always considered in equity as a mortgage, and consequently is redeemable upon the performance of the conditions or stipulations thereof. Even paroi evidence is admissible in some cases, as in cases of fraud, accident, and mistake, to show that a conveyance absolute on its face « as intended between the parties to be a mere mortgage or security for money. 2 Story, Eq. Jur., § 1018 ; 4 Kent, Comm., 142. And so inseparable, indeed, is the equity of redemption from a mortgage that it cannot be disannexed, even by an express agreement of the parties. If, therefore, it should be expressly stipulated that unless the money should be paid at a particular day, or by a particular period, the estate should be irredeemable, the stipulation would be utterly void. And a distinction is taken between a conditional purchase, or an agreement for a repurchase, and a mortgage properly so called. The former, if clearly and satisfactorily proved to be a real sale, gnd not a mere transaction to disguise a loan, will be held valid, although every transaction of this sort is watched with jealousy. 2 Story, Eq. Jur., § 1019; 4 Kent, Comm., 142-144, 159.
We are fully warranted in saying, we think, that the foregoing are all well-settled doctrines of the courts of equity in this country, and in this state also, on the subject of mortgages of real estate; and, with these general principles thus settled and recognized in their application to the case now before us on appeal from the decree of the chancellor rendered in the court below, we will now proceed to consider the facts and circumstances in the case as presented in the evidence accompanying the appeal. And that presents, in its inception, on the part of Walker, the complainant below, the case of a debtor heavily indebted by a mortgage duly executed by himself and wife on much the greater part of all his real estate to the respondent below, the president, directors, and company of the Farmers’ Bank of the State of Delaware, located in this town. Not only the time of payment • fixed in the mort*320gage had elapsed, but he had at length failed to keep the annual interest on it paid up as promptly as the directors of the bank required, until the latter made known to him, through the president and the attorney of the bank, their apprehension that his real estate would not sell at public sale on the mortgage for enough to pay the debt, interest, and costs upon it, while he in reply asserted his belief that it would sell for considerably more than enough to pay all due upon it, and while professing an earnest desire to see the bank paid every dollar of the debt, and his belief that he would be able to do it if they would wait with him until he could realize another peach crop from his lands, and urged them to consent to it; and at their request, in an early interview between them on the subject, he furnished them with his own estimate of the value of the respective farms and tracts of land covered by the mortgage, which in the aggregate showed the sufficiency of it to pay the mortgage in full, and leave a surplus of a few thousand dollars remaining. The testimony of Mr. Edward Ridgely, a director and counsel and attorney of the bank, is that the directors were apprehensive that the debt of Walker to the bank, or some part of it, was in jeopardy, and that he was of that opinion; and the question of his solvency, and the safety of his indebtedness to it, had frequently been discussed at the meetings of the board of directors, and, as attorney, that he had received instructions to collect the mortgage in case the interest, which was from time to time largely in arrear, was not paid up or greatly reduced. That Mr. Walker was called on for the payment of the interest, and was requested to keep the interest paid up, and, if possible, to reduce the principal; and he thought that he and Dr. Henry Ridgely, the president of the bank, both called upon him several times for the purpose of getting him to pay the interest, and also to try to get him to make some arrangement whereby he might reduce the principal. Mr. Walker would reply, in substance, generally, that he was expecting a large peach crop and other fruit crops, and that, out of his crops which he was antici*321pating, he would be able to pay up all the accrued interest, and probably a part of the principal, “ and would ask us to wait with him until he had a chance of realizing from his crops.” The witness further says as follows : “ I had several interviews with him in my office concerning his indebtedness to the bank. I think I had such an interview in January or February, 1881, and probably in January or February, 1882. I do not now remember who were present at any of said interviews, except that Mr. Walker and I and Dr. Ridgely, he thinks, were present at all of them. The purpose of all of said interviews was the same, and that was for us to talk with Mr. Walker about his indebtedness to the bank, and to try to get him to pay up the interest, and also to get him to pay some part of the principal, and to talk with him so as to see if we could not together suggest some plan to Mr. Walker whereby he might, to some extent at least, not only pay up the interest, but reduce the principal of his indebtedness. I do not know at whose suggestion all of these interviews were held. Some were held at the suggestion of Mr. Walker; some at the suggestion of Dr. Ridgely, and some, I think, at my own suggestion. Before any of these interviews of which I speak occurred, the bank had obtained judgment on the large mortgage. The first levari facias on said judgment was issued January 26, 1881, and the second was issued February 8, 1882, and the last and third writ of levari facias was issued February 14, 1883. I cannot say whether either of said writs was' in the hands of the sheriff at the interview in my office in the early part of 1882, but my impression is that one of said writs was in the hands of the sheriff at the time of one of said interviews, but whether at the interview of 1881 or 1882 I cannot now remember. All of said writs of levari facias were issued in accordance with instructions, as the legal counsel of the said bank, because the interest on Mr. Walker’s indebtedness to it was unpaid, and was, growing larger every day, and his indebtedness thereby increasing. Proceedings were superseded on the first two of said writs because Mr. Walker made arrangements to pay the arrears of *322interest on his indebtedness, or a large portion of such arrears of interest; and on the third and last writ proceedings were stayed because Mr. Walker and his wife had promised to convey most of their real estate to the bank, and afterwards did so.” The witness further states that at these interviews, and he thinks at all of them, there were suggestions made as to what we considered the best mode of paying his debts to the bank, and that both Dr. Ridgely and he advised Mr. Walker to sell his real estate at private sale, ' and reduce his indebtedness. “ We advised him, if he could not dispose of it himself, to put it in the hands of a real-estate agent to sell for him. We suggested to him that he had some valuable farms, which ought to find ready purchasers at fair prices. Mr. Walker would reply substantially agreeing to our propositions, and state that he was trying to dispose of a portion of his real estate; but he would further say that, if he could have a good peach crop, he would be able to pay his interest, and reduce his indebtedness, and almost every year he was expecting to have a large peach crop.” He did not remember that, at any of the interviews with Mr. Walker in witness’ office, there was any proposition or suggestion from anybody that he should convey his real estate, or any part of it to the bank; that neither Dr. Ridgely nor he, at any of the said interviews in his office, proposed or intimated any desire for or willingness to accept such a conveyance. He did not remember that the subject of such a conveyance formed any part of the consultation at any of the said interviews. It might possibly have been suggested at some of the interviews by Mr. Walker, but, if so, he did not remember it, and he knew that Dr. Ridgely and he were both anxious, at said interviews, to induce Mr. Walker to sell his lands himself, and that they at that time would not have been willing to have accepted a conveyance to the bank as they did not wish the bank to have the trouble of disposing of Mr. Walker’s real estate.
But it further appears from the same deposition that after-wards Walker, with the consent of these gentlemen and other *323members of the board of directors of the bank, made an attempt to sell his real estate at public sale on the 26th day of December, 1882, after duly advertising the same, with the understanding between him and them that the proceeds of the sale should be applied to the debts of Walker according to the priority of their liens, and with prices prescribed by the board of directors for the several parcels, of it, which, if sold at said sale for said prices or more, the directors would be willing to release the parcels so sold from the lien of their mortgage. This sale, however, failed to realize the hope and expectation of either of the parties to the understanding and agreement under which it was attempted, and, in the opinion of the witness, the reasons assigned for Mr. Walker’s having undertaken it were: First, because he had been frequently urged to dispose of his real estate by his brother, Dr. Ridgely, and himself; second, because he had been afflicted by a stroke of paralysis, and was unable to attend personally to his real estate; third, because he was largely indebted, and he could not keep the interest paid, and the debt was increasing; fourth, because his son-in-law, Mr. Harry A. Richardson, has declined to provide any further means for the payment of the interest to the bank; and, lastly, because it was very evident to Mr. Walker that, if he did not dispose of his lands himself, the sheriff would soon sell them for him. And, in this connection, it is proper to observe that the witness states in another part of his disposition, that “when the interest would be getting in arrear, and when I would say to Mr. Walker that he must keep his interest paid, or that I should be obliged, as attorney for the bank, to proceed on the judgment which we had recovered on the mortgage, he would say to me: ‘ Oh! there will be no sheriff’s sale. I will deed my lands to the bank first.’ He had frequently made such remarks to me long before the date of the conveyance, and I am certain as long or longer than two or three years before the date of the conveyance. To all such remarks I would reply, sub*324stantially: ‘Mr. Walker, we don’t want your lands; we don’t want to have the trouble of selling them. We want you to sell them yourself, and to pay your debts with the proceeds.’ ” And he further states, in his disposition, that the propriety of accepting from Mr. Walker a conveyance of his lands to the bank was first seriously considered and discussed by the board of directors after his attempted sale, which took place in December, 1882. The matter may have been talked about at some meeting of the board prior to said sale, but it was not seriously considered or discussed until some time after it. “ Prior to said attempted sale by Mr. Walker, there was a general feeling of reluctance on the part of the board of directors to accept a conveyance of said lands; for we did not want to be burdened with the lands, and to have the trouble of renting them until they were sold, and of attending to them, and of selling them. We all greatly preferred that Mr. Walker should dispose oí his lands himself. We were induced to think favorably of the conveyance by Mr. Walker of his lands to the bank after his attempted sale whereby it became evident to us that Mr. Walker could not or would not dispose of the lands himself, and the only alternative left for the bank was a sheriff’s sale under the mortgage, or a voluntary conveyance by Mr. Walker to the bank. The subject of such a conveyance was brought to the attention of the board of directors upon the suggestion and proposition of Mr. Walker himself.” It further appears from his deposition that “ afterwards, on the invitation and request of Mr. Walker, another interview took place at his house in the early part of February, 1883, between the former and the witnesses and Dr. Ridgely, held for the purpose of discussing Mr. Walker’s indebtedness to the bank, and to see if he could make some arrangement for paying it, at which Mr. Walker exhibited a statement in writing showing his opinion as to the value of his lands which were then unsold. -.My views as to the value of them did not correspond with his. His estimates were higher than I thought the lands would sell for. He had shortly before attempted *325to make a public sale of his lands, and his estimates were considerably higher than any one at that sale was willing to offer for them; and the value of his lands had been pretty generally discussed by persons who were acquainted with them. It was, I think, the opinion of Mr. Walker that his lands unsold were sufficient to pay his indebtedness to the bank. I differed from Mr. Walker’s opinion, and I did not think his lands then unsold were sufficient to pay his indebtedness to the bank. I think I did express my opinion that the bank would lose some of its indebtedness if we took a conveyance from him, for I did not then think that the bank would be able to sell the lands for enough to pay his indebtedness.”
But it is unnecessary to dwell longer upon the evidence in the case, except to say that, after the third writ of levari facias had been issued on the judgment to sell the lands at sheriff’s sale a deed of bargain and sale was made and delivered by Mr. Walker and his wife to the corporation of the bank for his lands then bound by the mortgage, and, in consideration of the conveyance, the bank was to satisfy the mortgage, and which was thereupon satisfied by it, and thereafter the directors of the bank proceeded to sell and convey the lands at private sales to various purchasers, and in a period of about two years had so sold and conveyed all of them on terms and at prices satisfactory to them; and for a sum exceeding in the aggregate the amount of principal, interest, and costs then due on the mortgage and judgment, $2,528.67, as I understand is alleged here on behalf of the appellant, the complainant below. And the bill was filed in the life-time of William Walker, the mortgagor, against the president, directors, and company of the Farmers’ Bank of the State of Delaware, the mortgagee, to recover that amount, on the ground that in equity and good conscience, and according to the principles of equity jurisprudence applicable to such a case between mortgagor and mortgagee, as this has been proved to be, the excess or surplus of the sales over and above the amount required to satisfy in full the principal, interest, and costs due on the mortgage and judgment belonged to him, and not to *326the bank. And the general and fundamental doctrines or principles of courts of equity in such cases, which I have already referred to and stated in this opinion, will sufficiently indicate the conclusion of my mind on the single question presented to us for decision in the case. For, as I understand the principle of equity ruled and recognized in so many of the cases cited in the arguments of the counsel on either side, both English and American, and particularly in the case of Cholmondeley v. Clinton, 2 Jac. & W., 182,1 am clearly of the opinion that, as soon as the corporation of the bank became actually possessed of the lands mortgaged to it by Walker under the deed of bargain and sale from him and his wife to the bank, the bank became, in the peculiar and limited sense of the term, as employed and defined in that decision, the trustee of the mortgagor, the equity of redemption yet subsisting in him; and, under the circumstances, the lands were in its possession for the sole purpose of paying the indebtedness due from him on the mortgage to the bank, and for no other; and, as such trustee, the bank had not, and could not have, any right or title in this court, or in any court of equity, to use it for any other purpose, or make any gain or profit out of it whatever, because, when such a trust or relation exists between mortgagor and mortgagee, such is the jealous care ' with which courts of equity always have sought and still seek to protect the mortgagor against any abuse of the power or advantage which the mortgagee may have over him that they studiously seek even to prohibit such a possibility. The only consideration for the» conveyance was that it was to be in full satisfaction of the indebtedness then due on the mortgage, and for that purpose was made by the mortgagor, and accepted by the mortgagee; while the former had invariably contended, up to the time of the execution of it> that the lands conveyed by it was more than sufficient to pay the indebtedness, and the latter, through its agents and representatives, had as invariably dissented from his .opinion, and expressed their apprehension and belief that the lands would not sell for enough to pay it; and it was not until after the failure of the attempted sale *327of them for that purpose by Mr. Walker that the board of directors of the bank was inclined to seriously consider the propriety of such a conveyance from Mr. Walker. And while there is no ground to impugn or suspect the good faith or fairness of any member of the board of directors for entertaining or expressing such an apprehension up to that time, there was certainly good reason from that time for a serious apprehension on their part that, if the lands should be forced to a sheriff’s sale on the execution, they might fail to sell for a sufficient amount to pay the indebtedness, and thence to conclude that it was for the best interest of the bank to accept the proposition, and to willingly assume the burden and trouble of selling the lands as its own property at private sales, as was afterwards done by them, at better prices than could have been obtained for them at a sheriff’s sale on the execution.
But, in the view which I take of the equity in this case, I think far too much stress has been laid on the fact alleged that the bank never promised or agreed to pay to Mr. Walker, or to any other person, any surplus that might remain of the proceeds of the sale of the lands by the bank after applying all that should be required of the proceeds to pay the debt, interest, and costs due on the mortgage and judgment, because under the rule of equity applicable to such a case, the duty and obligation of the mortgagee, as the trustee of the mortgagor for that purpose, existed wholly independent of any express contract or agreement between the parties to. that effect, because the duty and obligation was so imposed on the trusee by the positive requirement of the rule of equity in such a case; and it may even be doubted, to say the least, whether an express agreement between them to the contrary would not be held in a court of equity to be inoperative and void. But it clearly appears from the evidence in the case that it must have been understood, and at least tacitly assented to, by the directors of the bank, during the whole period of protracted pressure exerted upon the mortgagor in this case to sell his lands himself, or to make some arrangement whereby he might be enabled to- pay his indebtedness *328to the bank, that the proposed conveyance of them by him to the bank for that purpose was to be followed by a sale of them by the bank, and that the proceeds of the sale of them were to be applied to the payment of that indebtedness. This is to be inferred from the fact stated in Mr. Ridgely’s deposition that he had repeatedly informed Mr. Walker that the bank did not want his lands, for several reasons, and the first of which generally assigned by him was that the bank did not want to have the trouble of selling his " lands. Besides, we are not to suppose, with the estimate they then put on the value of them, and the fact alleged by him in his deposition that they were depreciating in value, that any member of the board ever thought of holding the lands under the conveyance as a permanent investment tof the large amount of money then due on the mortgage. And, under the circumstances, we have no hesitation in saying that it was the duty of the bank to proceed to sell and dispose of them, as the directors have done, as fast as they reasonably and conveniently could do so, and at the best prices they could obtain for them. I do not think it necessary to refer to the temporary refusal, at the last moment of Mrs. Walker, the wife of Mr. Walker, to sign the conveyance without the consent and agreement of the directors to pay to her the surplus of the proceeds of the lands by the bank, if any, after paying the indebtedness due on the mortgage, not only because her demand was shortly afterwards abandoned by her, and she joined with her husbands in due and formal execution of the conveyance, but because Mrs. Walker had in her own right no claim or title whatever^ legal or equitable to such surplus ; for the mortgage of her husband and herself to the bank had extinguished any prospective or inchoate right of dower which she might have had in the lands, and her persistence in the demand might have forced a sheriff’s sale upon the mortgage, which it was now manifest both her husband and the bank were anxious to avoid. But I am of the opinion that the surplus belongs to Mr. Walker, the mortgagor, and should be paid to his administrator, the appellant in the suit.