#### Samuel Hadley *et ux. versus*Samuel Houghton, Administrator, &c.

An instrument signed and sealed by a mortgager and mortgagee after condition broken, and found among the papers of one of the subscribing witnesses after his death, but not proved to have been delivered, declaring that the mortgagee has entered to foreclose, and leasing the land to the mortgager for three years at an annual rent, but which rent had not been paid nor demanded during the three years, was held not to be sufficient evidence of a foreclosure.

Upon a case stated the following facts appeared.

This was a bill in equity brought by Samuel Hadley and his *31wife to redeem land, the fee whereof was in the wife. On the 21st of January, 1821, the plaintiffs mortgaged the land to Abel Hadley, the defendant’s intestate, to secure the payment of a promissory note for 100 dollars in one year. On the 17th of June, 1822, after condition broken, Samuel H. agreed that Abel might enter to foreclose the mortgage, and an instrument of that date was signed and sealed by Samuel and Abel, reciting that Abel had on that day taken peaceable possession in the presence of the two subscribing witnesses, to foreclose, and leasing the land to Samuel for three years, at an annual rent of 12 dollars. Roper, one of the witnesses, had since deceased, and the instrument was found among his papers The other subscribing witness could not be found. This in strument was the only proof of actual possession taken for the pyt'pose of foreclosure. The plaintiffs continued in possession as before, and no rent, *eo*nomine, was demanded during the three years, nor had any rent been at any time paid by the mortgagers. The wife had no knowledge of the instrument above mentioned, nor of any agreement that the mortgager might enter to foreclose. The land was worth about 425 dollars. The plaintiffs tendered to the defendant the sum due on the mortgage.

*Oct.*1st.

*Goodwin,*for the plaintiffs.

The instrument found among the papers of Roper is not evidence of an entry to foreclose, for there is no proof of its delivery ; and there has not been the continued open possession required by the statute. *Thayer*v. *Smith,*17 Mass. R. 429.

This is not a foreclosure that will bar the wife. The husband cannot turn his life estate in the land of his wife, into an estate in fee simple. Powell on Mortg. 741, 754 ; *Peabody*v. *Patten,*2 Pick. 519 ; *Barker*v¿ *Parker,*17 Mass. R. 564 ; *Snow*v. *Stevens,*15 Mass. R. 278.

*Merrick,*for the defendant.

It is objected that the instrument was never delivered. It was a mutual agreement, and it was not for the interest of either party that it should be in the hands of the other ; and this must have been the reason why it was placed in the hands of the witness. The possession by Samuel, the mortgager, as tenant, was the possession of the mortgagee.

*32
      *Oct. 3d.*

It is also said that the wife is not barred, though the husband may be. The husband had a right, during the coverture, to give up the possession of his wife’s estate. By joining in the mortgage she placed herself in a situation in which she had no control over the land. Besides, tire action is brought by the husband. If the husband does not perform the condition annexed to the estate of his wife, she loses her estate, Co. Litt. 246 *l.*

*Per Curiam.*

The defendant insists that the declaration contained in the instrument found among the papers of Roper, that the mortgagee entered to foreclose, and the lease for three years, are sufficient evidence of a possession for the purpose of foreclosure. If the husband alone had owned the land, perhaps they would have been ; but it was the wife’s estate, and there is no evidence that she consented to or had knowledge of the supposed entry. In equity, she would be let in to redeem, care being taken that the right of the husband should be transferred to the mortgagee. The statute requires three years open and peaceable possession by the mortgagee, in order to a foreclosure by acts *in pais.*
      *1*
      **Here there is no evidence of an entry or actual possession by the mortgagee. It does not appear whether this paper is an escrow or not.2 It can be evidence only by way of estoppel to the husband, and does not bind the wife. The case stated does not show that this was a complete transaction. There was a covenant by the husband to pay rent, but no demand was made for it; and no change of possession took place. The transaction must be considered as an attempt to create a foreclosure privately, and without the knowledge of the wife. On that ground it is bad in equity ; and it is bad in law, for want of evidence of a delivery of the paper.3

See *Swan*v. *Wiswall,*15 Pick. 128.

It is not necessary that the term escrow should be used, when an instru. ment is delivered to a third person, in order to give it that effect. The inten tion of the parties can be indicated in any other manner. *Clark*v. *Gifford,*10 Wendell, 310.

As to delivery of deeds, see *Jackson*v. *Perkins,*2 Wendell, 308; *Mills*v. *Gore,*20 Pick. 28; 4 Kent, (3d ed.) 454; *Chadwick*v. *Webber,*3 Greenl. 141, *Woodman*v. *Coolbroth, 7*Greenl. 181.