The court are of opinion, that this assignment of dower, by the judge of probate, with the consent of the heirs, as the law was in 1825, was not void, although the premises were then subject to an outstanding mortgage, upon which the mortgagee had not entered. In the early case of Sheafe v. O'Neil, 9 Mass. 9, it was considered that the judge of probate, in certain cases, might assign dower, where the heirs only are concerned, though it could not affect a mortgagee. The case of Raynham v. Wilmarth, 13 Met. 414, was a case between the mortgagee and the widow. As against the mortgagee, the mortgagor is not seised, and the husband not having died seised as against the mortgagee, the decree of the judge of probate cannot affect them. But in Margaret Henry's case, 4 Cush. 257, the subject, we think, is put on its right footing. There it was held that a mortgagor in possession has such title and seisin, that a widow may have dower in the estate, subject, of course, to the mortgage: she takes such a title that she may redeem, and thereby make her assignment of dower good.
In the present case, the dower was assigned under the law as it stood before the revised statutes. A formal assignment of dower was made by the judge of probate, and this was confirmed by an instrument, signed by all the heirs and filed in the registry. It being well settled, that dower may be assigned by heirs, by parol, without a deed, o' fortiori, this assignment was made good as against the heirs by that act. This was not a mere gratuitous act on their part. Having by this assignment exempted the residue of their inheritance firom liability for dower, the assignment was made for valuable consideration, and we think they are estopped by it, to deny the validity of that assignment.
Still, this could not affect the mortgagee, and unless the mortgage had been redeemed within the three years, it might have been foreclosed. But within the time, an assignment was made by the mortgagee to the plaintiff, who was one of these heirs and assignors of dower. That he and the other heks considered themselves so estopped and were so, is con*291firmed by the deed of the three co-heirs given to the plaintiff, releasing to him all their interest in the mortgaged premises, but reserving and excepting the dower to their mother, yet transferring to her the reversion expectant upon the termination of her life-estate. His acceptance of that deed was an affirmance of the estoppel.
Judgment on the verdict for the defendant.