#### Mary E. Snow, Plaintiff, *v.*Frances L. Daggett et al., Defendants.

(Supreme Court, Oswego Special Term,

April, 1899.)

Mortgages — Deed as mortgage — The equity of redemption cannot be conveyed by the oral consent of its owner. . " ■ ■

Where the grantee of premises, under a deed absolute on its- face but in fact executed for collateral security, subsequently conveys the premises without consideration to the wife of his grantor that she ■ may secure by mortgage the grantor’s debt to a bank, and she thereafter gives the bank such a mortgage, she has no power, even' with her husband’s oral consent and approval, subsequently to mortgage his equity of redemption to a third party;' as the equity, still, belongs to the husband and" any surplus resulting from, the foreclosure of the .mortgage of the bank would pass to him. or to his creditors.

This action is brought; to foreclose á mortgage executed by Frances L. Daggett to. the plaintiff. The defendants Celia F. Soper and William Soper áre in possession of the premises, and they; with .the .defendants Griffin and Hollenbeck, claim an interest in the premises under a 'conveyance executed by the defendant Henry J. Daggett) and defend on the ground that,.at the time of the execution of the. mortgage, Henry .J. Daggett, owned the fee, instead of his wife, Frances L. Daggett, the mortgagor, and, consequently, that the mortgage is not valid, and that it has been so adjudged in a former action wherein all the parties to this action were either parties or privies. . .

Elisha B. Powell, for plaintiff.

J. J. Lamoree and J. A. Johnson, for defendants.

Wright, J.

On ¡November 9, 1882, the defendant Henry J. Daggett owned the land in fee. - On that, date he and his wife Frances L. Daggett executed a mortgage for $12,500'(which was in form a deed absolute), to Leonard Ames.

On February 23, 1884, .¡Leonard Ames (the mortgagee in said.' mortgage deed), and his wifé, executed a deed of- the land to . Frances L. Daggett,, who thereupon executed to. the Second Rational Bank a mortgage on said land for $10^000, for the specific *257purpose of paying the balance then unpaid on the former mortgage' of $12,500, which Ames had assigned to that bank.

Mrs. Daggett paid no consideration for her deed from Ames, and she knew the nature of Ames’ title, as being a mortgage in the form of a deed absolute, made to secure Ames on certain notes of Mr. Daggett to the amount of said $1,500.

On April 29, 1884, .Frances L. Dqggett, with the oral consent of Mr. Daggett, executed to the plaintiff the mortgage for $4,000, on which the action is brought, which .was recorded August 18, 1884.

The plaintiff urges that Frances L. Daggett (who acted as trustee of the title of Henry J. Daggett, to the extent of said $10,000 mortgage to the said savings bank), having executed this mortgage with the oral consent and approval of her husband Henry J. Daggett, had the power to, and did execute a valid mortgage to the plaintiff."

This contention might be forceful if Mrs. Daggett held the entire title in fee in trust for her husband, but she held in trust the title only to the extent of said $10,000 mortgage, and held it simply for the specific purpose of securing the payment of that mortgage. Henry J. Daggett owned the equity of redemption, which she had no power over. Henry J. Daggett could not confer orally upon his wife a power to mortgage his equity of redemption.

The ease is very clear if it is borne in mind.that the only source of Mrs. Daggett’s title is Mr. Ames as mortgagee.

' In case of the foreclosure of the $10,000 mortgage,.and a surplus arising, Mrs. Daggett would not be entitled to take the surplus as trustee of Mr. Daggett; neither would Mrs. Snow, this plaintiff, be entitled to it to apply on her mortgage, but Henry J. Daggett,. his creditors or assigns, would take it.

On June 10, 1884, after Ames and "wife had executed said deed to Mrs. Daggett, one Lewis M. Smith obtained and docketed a judgment against Henry J. Daggett for $1,092.93.

Afterwards an action in the Supreme Court was brought by said Smith, as receiver of the property of said Henry J. Daggett, Frances L. Daggett, and this plaintiff with others. The action was tried before Mr. Justice Boardman and resulted in a decision dated December 16, 1885, wherein the facts were found in conformity with those found herein, and judgment was duly entered thereon.

The testimony respecting the equities between Mr. Daggett and George E. Soper, as affecting the conveyance from Mr. and Mrs. Daggett to said Soper are not material to the issue in this action.

*258It is held, therefore, that at the time of the execution of the mortgage to the plaintiff herein, the. mortgagor conveyed no interest in the property, and consequently, that the mortgage is invalid.

Judgment ordered, dismissing the complaint, with costs.

Complaint dismissed, with qosts.