¶11 cannot concur in the judgment that is to be rendered in this case, and shall proceed to state the reasons.
¶2It is well settled, that the mortgage in this case is not at all affected by the circumstance, that the note it was intended to secure has been presented to the commissioners, and been by them allowed. 2 N. H. R. 483, Moses vs. Ranlet.
¶3No right of dower, which the tenant may have in the demanded premises, can give her any claim to hold the land, or any part of it, until her dower has been legally assigned to her. 9 Mass. R. 13, Sheafe vs. O'Neal.
¶4The only ground on which the tenant relies as an answer to the action is, that upon the facts disclosed in the case, the mortgage must be considered as extinguished ; and as two of the demandants, T. S. Robinson and Parshley, do not appear ever to have had any interest in the land except' what they derived from the mortgage, their title is wholly gone ; and of course, although the other demandant may have an interest in the land, still the action cannot be maintained.
¶5It is very clear that if the mortgage is extinguished this action is defeated. To maintain this suit, a title in all the demandants must be shown. Jackson on Real Actions. 70,
¶6It is insisted, on the part of the tenant, that as between her and these demandants, the debt secured by the mortgage *106must be considered as extinguished, because the demand-ants have assumed all the debts due from the estate, and this debt among the rest, by giving a bond to the Judge of probate to pay the debts.
¶7In order to settle the question which this ground of de-fence presents, it is necessary to examine the situation in which these demandants, the heirs, and the widow stood, and the interest which they had in the estate when the bond was given.
¶8The personal estate was insufficient to pay the debts. The creditors were, then, entitled to have all the personal estate applied to the payment of their claims, and the tenant, being administratrix was bound so to apply it.
¶9The tenant was entitled to dower in the equity of redemption of the demanded premises. She would have been so entitled had the estate been insolvent. 6 N. H. R. 25; 2 Cowen 246 ; 1 ditto 466 ; 7 Johns. 282 ; 6 ditto 294 ; 3 Pick. 481; 13 Mass. R. 525 ; 5 Pick. 150 ; 10 Mass. R. 364; 7 Green. 41; 15 Mass. R. 278; 13 ditto 525; 17 ditto 564 ; 13 ditto 227 ; 8 ditto 491.
¶10And she could not enlarge her interest in the land by any act of her own as administratrix. Thus if she had discharged the mortgage with the proceeds of the personal estate, and left the other debts a charge upon the real estate, still she would have been entitled only to dower in the equity of redemption. The law would probably in that case entitle the heirs to be treated as assignees of the mortgage, and enable them to withhold her dower until she should contribute her due proportion towards the discharge of the mortgage. 13 Mass. R. 168. If, however, any thing remained of the personal estate, after all the other debts were paid, it might have been applied in discharge of this mortgage, and she would be entitled to her dower on payment of her due proportion of the debt secured by the mortgage which might have been left due after the remainder of the personal estate had been so applied. And if the *107personal estate had been sufficient to pay all the debts, she would have been entitled to dower in the same njanner as if there had been no mortgage. 3 Pick. 481. All this seems necessarily to result from the interests which the law gives to the widow and to the heirs respectively in the estate, and from the mode in which the debts are by law charged upon the estate.
¶11The right in equity to redeem the land had descended, to the heirs, subject to the widow’s right of dower, and to the payment of all the debts, which the personal estate could not pay.
¶12These demandants were the assignees of the mortgage, and entitled to hold the land until the debt was paid.
¶13Such was the situation and such the rights of the wido w , the heirs, and these demandants, when the bond was given to the judge of probate.
¶14in order to pay the residue of the debts, that remained after the personal estate was exhausted, the widow had made application to the judge of probate for a license to sell the real estate. To prevent such sale some of the heirs gave the bond.
¶15It may be said, perhaps, that it would have been a great convenience to the widow to have sold a part of the land to discharge the mortgage, and then to take her dower in the residue. This may be true ; but then it must be remembered that the part- of the land to be sold would have been incumbered not only with the mortgage, but with the right of dower, and thus encumbered would not have been very likely to sell advantageously for the heirs. And if this difficulty could have been in any way avoided, still it must be recollected that the statute gave to the heirs a right to prevent the sale by giving the bond; which right of the heirs was paramount to any right of the administratrix to a license to sell. 1 N. H. Laws, 366.
¶16It now becomes necessary to consider the nature, object, and legal effect of the bond.
¶17*108It was the duty of the administratrix to see all the debts paid ; a||d the object of her application to the judge of probate for license to sell the real estate, was to enable her to do this and close her administration. To prevent the sale the obligors in the bond undertook to pay the debts, and save her harmless. She still continued liable for the debts as administratrix. The rights of the creditors against the estate remained unchanged. The bond was then in its nature, object and legal effect, so far as respected her, a mere bond of indemnity. With respect to the debt secured by this mortgage, it amounted at most only to a contract not to call upon her for the payment of it. In the case of Gibson vs. Crehore, 3 Pick. 475, where the purchaser of an equity of redemption sold by the administrators of the mortgagor had given bond to the administrators to pay the debt secured by the mortgage, and had actually paid it and taken an assignment of the mortgage, it was held that this did not operate as an extinguishment of the mortgage so as to entitle the widow of the mortgagor to dower. Now the bond in the case now before us was no more intended to enlarge the widow’s right of dower than it was in that case.
¶18In this case the object of the bond was to save the admin-istratrix harmless from all debts due from the estate, and among others the debt secured by this mortgage. In that case the object of the bond was to save the administrators harmless from the debt secured by the mortgage. The circumstance that this tenant is both administratrix and widow is wholly immaterial. So far as respects her interest in the real estate as widow, she is as much a stranger to the bond given to the judge of probate in this case as the widow was to the bond given to the administrators in that case. The object of the bond in this case was merely to prevent her from being called upon as administratrix for any debt of her intestate. It may be conceded that if these demand-ants had brought a suit against her as administratrix to recover the debt secured by this mortgage, the bond would *109have been a good bar. But it by no means follows from this that she is now entitled in this suit to consider the mortgage as discharged. Not only courts of equity, but courts of law also, in many cases, consider a mortgage as subsisting or discharged, as will best answer the purposes of justice. Thus in Gibson vs. Crehore, which has been before mentioned, the estates of the original mortgagor and mortgagee were united in Crehore — and as to all the world, except the mortgagor’s widow, the mortgage might be considered as discharged. But to have so considered it in that case would have been to give her dower in the land unencumbered, where she was only entitled to dower in the equity of redemption ; and the court very properly held that as respected her the mortgage must be considered as still subsisting. The same principle was adopted by this court in Cass vs. Martin, 6 N. H. R. 25.
¶19In Taylor vs. Bussell, 3 N. H. R. 294, where two were severally seized of two distinct parcels of a tract of land which had been mortgaged to a third person, and one of them had paid the debt and taken an assignment of the mortgage, it was held that he might consider the mortgage as discharged, and bring an action for contribution, or consider it as subsisting, and hold the land till the other páid a reasonable contribution.
¶20The case of Carll vs. Butman, 7 Green. 102, was a writ of dower. The demandant claimed her dower in an acre of land. The facts were, that E. Holmes being seized in 1813, conveyed the land to J. C. Jones in mortgage, and afterwards, in 1814, conveyed the same to Carll, the husband of the demandant, in fee with warranty. In 1819 the demandant was married to Carll. In 1821 Carll the husband conveyed the land to the tenant by deed of quitclaim, and in 1822 Jones released all his right to the tenant. The court held that to consider the mortgage as still subsisting, so far as respected the demandant, was equitable, and deprived her of nothing to which she was justly cnlit-*110led : and that the mortgage was not to be considered in that case as extinguished by the union of the estates of the mortgagor and the mortgagee in the tenant.
¶21This principle, which is recommended by its equity and justice, has been adopted by the courts of law from the courts of equity, where it has long been established. 3 Johns. C. R. 53, Gardner vs. Astor; 2 Cowen 246, James vs. Morey; 18 Ves. 384, Forbes vs. Moffatt; 2 Fonblanque 162—164; 5 Johns. C. R. 482, Swaine vs. Perrine.
¶22If the mortgage in this case be considered as subsisting, the legal title is in the demandants. Stephen Leavitt and Abigail Leavitt are each seized of one third of the right in equity to redeem the land, and this tenant, the widow, is entitled to dower in the equity of redemption.
¶23And why is the mortgage not to be considered as subsisting ? I see no sound reason. A judgment in this case in favor of the demandants will be no bar to any claim which this tenant or the heirs may have to an interest in the equity of redemption. It will be conclusive as to the right of seizin of the demandants at the time it is rendered, but the moment the heirs and the widow tender their just proportion of the debt secured by the mortgage, a right will accrue to them to demand and recover their estate in the land. A judgment in favor of a mortgagee in a writ of entry is never a bar, after a tender of the money, secured by the mortgage,' legally made in due season. Not only the heirs of the intestate in this case, but the widow, will have a clear right to maintain a petition to redeem the land, under the second section of the statute of July 3, 1829. 1 N. H. Laws 487; 5 Pick. 146, Gibson vs. Crehore; 6 N. H. R. 25, Cass vs. Martin.
¶24It seems to me that by considering the mortgage as still subsisting, all who have any interest in the estate are left with all their rights secure and safe ; that no rule of law is violated ; that all which either law or equity requires, in this case is fully done.
¶25*111But if the mortgage is considered as discharged, in what situation are those interested in the mortgage placed r The interest of Parshley and T. S. Robinson in the land will have gone to pay a debt for which they were liable as sureties of J. Robinson and S. Leavitt. They may then it seems have a remedy against their principals. But why are they to be deprived of the security which the mortgage affords them for what they had paid to the bank for the mortgage. While the mortgage subsists, their interest is secure. If the mortgage is discharged they may or they may not be able to recover of J. Robinson and S. Leavitt what they will have a just claim to recover. But what have they done to forfeit their claim to have the mortgage considered in force ? Why have they not as just a claim to have it so considered as Crehore had in Gibson vs. Crehore, 3 Pick. 475, and Martin had in Cass vs. Martin, 6 N. H. R. 25 .
¶26It is equitable and their security requires, that it should be considered as in force. No rule of law is violated — no injury is done to any one by holding that the mortgage remains undischarged. But it seems to me that injustice will be done to Parshley and T. S. Robinson if it be held to be discharged.
¶27Then on what ground will J. Robinson be left, if the mortgage is considered as discharged ? Having become responsible to pay all the debts with S. Leavitt, one half the debt secured by this mortgage must be paid by him, and he will be entitled in right of his wife to one undivided third part of the land, subject however to the widow’s right of dower.
¶28If, the mortgage being considered as discharged, he will have no legal claim to a contribution from Abigail Leavitt and the widow, when they assert their respective rights, then by holding the mortgage discharged, we take from him the amount they would otherwise be bound to contribute. This seems to me to be neither just nor equi*112table. It has been said in the argument of counsel, that having voluntarily assumed to pay the debts, he will have no right to complain of this. But no one will for a moment suppose that by assuming the debts he intended to discharge the mortgage. And his ground of complaint will be that the loss will be thrown upon him by applying to his case a new rule, which has never been applied in any similar case whatever before this time.
¶29But if in case the mortgage is held to be discharged, he will still be entitled to such contribution, why shall not the mortgage be held to remain in force to secure that contribution ? In Carll vs. Butman, 7 Green. 102, the debt had actually been paid, and yet the mortgage was held not to be discharged. In all such cases up to this time, it has always been held that the mortgage shall be considered as remaining in force ; and I see no ground on which this case can be held to form an exception to the general rule. No case has been cited which can sustain such an exception.
¶30I am, on the whole, of opinion that it is now the settled rule of law as well as of equity, that a mortgage is never to be considered as discharged so long as it is necessary to consider it otherwise, in order to give those who have the estate of the mortgagee the full enjoyment of that estate. And this rule would have been applicable, had this been a writ of dower brought by this tenant against the heirs, and they had been the assignees of the mortgage, and had actually given up the note secured by it to her to be cancelled. In such a case it must be considered as subsisting in order to compel her to contribute her just proportion of the mortgage money. But the case before us is much stronger. Here by considering the mortgage as discharged, we let in not only the widow, but the heirs, to the prejudice of those who hold the estate of the mortgagee ; and we let them in, not only to the prejudice of J. Robinson, the principal, but to the prejudice of the innocent sureties in the bond, who probably never once dreamed that *113by becoming parties to that instrument they discharged the mortgage. Besides, we must consider the mortgage discharged, not because the debt has been paid, but merely because those who had the estate of the mortgagee stipulated not to enforce the payment of the debt against this tenant as administratrix. If a case can be conceived in which the rule just mentioned can be applied, this seems to me to be such a case.
¶31Demandants nonsuit.