#### Sarah Snow *versus*Abel Stevens.

A widow of one having an equity of redemption may have dower, in the lands mortgaged, against any except the mortgagee and those claiming under him.

This was a writ of *dower.*The parties agreed to submit the action to the determination of the Court, on the following statement of facts: “ On the 4th day of February, 1809, one *John L. Tuttle,*being seised in fee of 120 acres of land, of which the premises described in the demandant’s writ are part, conveyed the same to *Jonathan Snow,*the then husband of the demandant, in fee, with general covenants of warranty against all encumbrances. The tenant holds by virtue of an execution against the husband of the demandant, duly levied upon the said premises. At the date of the said *Tuttle's*deed, a part of the estate conveyed by him, including the premises described in the demandant’s writ, was encumbered

*256by a mortgage deed to secure the payment of a bond for 500 lollars to the *Boston*Bank, made by one *John Raymond,*the said *'Tuttle's*grantor, under which the said bank has never entered. The * demandant was divorced from her said husband by this Court, in 1813, for the cause of adultery committed by him; On the 18th day of April, 1816, the said bank, in consideration of the amount due upon the bond and mortgage made by said *Raymond,*paid to them by one *John Abbot,*duly assigned said bond and mortgage to him, who then held another part of the mortgaged premises, under a title derived, through mesne conveyances, from the said *Jonathan Snow.*Before December, 1815, the said bank had transferred to said *Abbot*a bond, made by said *Tuttle,*conditioned to cause to be paid to them the money due upon the mortgage of said *Raymond;*and in December, 1815, the administrator of said *Tuttle,*who had deceased, paid to said *Abbot*the amount due on said *Tuttle’s*bond made to said bank. On the 17th day of May, 1816, the said *Abbct*duly assigned the mortgage, made by *Raymond*to the bank, to *Phineas Wright,*the immediate grantor of the tenant. The demandant duly made a demand of her dower in the premises described in her writ, of the said tenant, on the 19th day of April, 1817. The said *Jonathan Snoio*had duly conveyed, in 1810, all the estate he purchased of said *Tuttle.”*

If, upon these facts, the demandant was by law entitled to her dower in the premises described in her writ, the tenant agreed that dower should be assigned her in due form of law. But if she was not so entitled, she agreed that judgment be rendered for the tenant, for his costs.

*Steams*for the demandant.

*Abbot*and *Hoar*for the tenant.

Parker, C. J.

The general position, that a widow is not dowable of an equity of redemption, we think, is not true, in the extent contended for by the counsel for the tenant. No case has yet been decided upon that principle. In the cases cited, (1) the doctrine goes no farther than that the widow of him who was seised only of a right to redeem, should not have dower against the mortgagee To this effect is the case of *Bird*vs. *Gardner,*which is principally * relied upon ; in which, although there are some general expressions which go farther than the case required, yet the decision was only that the claim of dower could not be maintained against the mortgagee and his assigns.

*257By the common law it may well be that a woman shall not be endowed of an e.quity ; because it is an estate not known at law, and existing only in equity. But then the interest of the widow in such estate is protected by the Court of Chancery.

In this commonwealth, an equity may be, to some purposes, con sidered a legal estate. It is so, in fact, against all but the mortgagee and those holding under him. For he that is seised of it may maintain his writ of entry, or his action of trespass, against any stranger ; and he is generally in possession of the land when mortgaged, until condition broken.

The tenant, in the case at bar, cannot be considered as now holding under the mortgage. He came in by purchase under the demandant’s husband, and procured an assignment of the mortgage, to strengthen his title. But the debt has been paid by the administrator of *Tattle,*who conveyed to *Jonathan Snow,*the demandant’s husband. The mortgage cannot be considered as subsisting, but as cancelled and extinguished ; and the tenant holds under *Snow,*and not under the mortgagee — so that there is no legal reason why the demandant should not be endowed, (a)

*Tenant defaulted*

(1)

*Powell on Mortgages,*718. — 4 *Mass. Rep.*566, *Holbrook*vs. *Finney.*— 7 *Mass Rep.*253, *Eldredge & Al.*vs. *Forrestal & Ux.*— 8 *Mass. Rep.*491, *Popkin*vs *Bum stead.*—10 *Mass. Rep.*364, *Bird*vs. *Gardner.*

(a)

 See note to *Sheafe*vs. *Oneal,*9 *Mass. Rep.*13, and the cases there cited.— *Gibson*vs. *Crehore,*5 *Pick.*146.— *Collins*vs. Torry, 7 *Johns. R.*278.— *Shoemaker*vs. Walker, 2 *Serg. R.*554.— *Reed*vs. Harrison, 12 *Serg R.*18. — *Clairborne*vs. Henderson, 3 *H. & M.*322.