Searle v. Chapman

Gray, C. J. The mortgage deed having been, as was admitted at the argument, executed by the husband and wife in due form to release all rights of dower and of homestead, those rights, as well as every other title of the husband in the premises, passed to the mortgagee, and were equally liable to him for the payment of the mortgage, and could not be set up either as a ground for redemption or as against a foreclosure, except upon the terms of paying the whole mortgage debt. The power of a court of chancery to compel a mortgagee to tesort in the first instance to one of several estates mortgaged is [21] exercised only for protection of the equities of different creditors or incumbrancers, or of sureties, and not for the benefit of the mortgagor. As against him, the mortgagee has the right to enforce the contract between them according to its terms, and is not obliged to elect between different remedies or securities. 1 Story Eq. Jur. §§ 640, 645. The right of homestead, created by our statutes, is certainly entitled to no higher degree of favor than the courts have always accorded to the common law right of dower. The case cannot be distinguished in principle from the ordinary one in which a wife, who has joined by way of releasing dower in the mortgage of her husband, is held to pay the whole mortgage debt, as a condition of asserting her right of dower against the mortgagee. Gibson v. Crehore, 5 Pick. 146, 152. McCabe- v. Bellows, 7 Gray, 148, and 1 Allen, 269. Davis v. Wetherell, 13 Allen, 60. The judgment in Pittman's Appeal, 48 Penn. St. 315, is in accordance with our conclusion. The cases in some of the western states, cited by the learned counsel for the tenants, so far as they countenance any equity in the owner of a right of homestead as against a party in whose favor he has waived or released it, are supported by no reasons, and do not disclose how far they may have been influenced by local statutes. Exceptions overruled.