Alexander Greenlaw, by Guardian, vs. Ruth Greenlaw, 13 Me. 182

The opinion of the Court, after a continuance, nisi, was drawn up by Weston C. J. The demandant in his opening had shewn title, by introducing a deed to himself of the demanded premises from Israel Cox. The tenant then adduced in evidence a deed, subsequently made by the demandant, of the same premises to Thomas C. Greenlaw, under whom the husband of the tenant claimed. An attempt was made to show that deed inoperative. Its validity and effect was open to inquiry; and it was competent for the demandant to show, if he could, that nothing passed by that instrument.

It was repelling proof, to which he had a right to resort. If he failed upon this ground, there was nothing to prevent his availing himself of any condition in that deed, or of any defeasance executed at the same time, or of any recon-veyance made to him, either absolute or conditional. An unsuccessful attempt to defeat a deed, to which he was a party, did not subject him to a forfeiture or waiver of any interest, to which he was legally entitled in the land in controversy.

We are aware of no principle of law, which forbids his submitting both grounds at the same time to the jury: that if the first failed him, he might have the benefit of the second. And we are of opinion that the Court below rightfully permitted this course. The mortgage deed, executed by the husband of the tenant, was substituted for one having the same conditions, previously executed by Thomas C. Greenlaw; and that was in consideration of the conveyance of the same land to him, which was previously the demandant’s sole property. Both mortgages secured a benefit to his wife.

Her interest, being purchased with his property, might have been defeated by his creditors. The principal contract, collaterally secured by the mortgage, was to support the demandant and his wife for their lives, and the life of the survivor. This contract procured by the husband, and for a consideration moving from him, he might release or discharge. In Draper v.

Jackson et ux. 16 Mass. 480, cited in the argument, Jackson J. by whom the opinion of-the court was delivered, reviews the authorities, and góes into an elaborate consideration of the rights of the wife, upon securities, which the husband procures to be given jointly to her and himself, by which he is to be understood as intending to secure a benefit to her. “ It is true,” he says, “ that the husband may afterwards change his mind, and may release the demand, or take a new security for it, or bring the action in his own name; and if he recovers the money, he will retain it to his own use.” These remarks may be considered as referring to personal demands, but their release or discharge would also defeat any mortgage of real estate, by which they might be collaterally secured.

The husband may sue in his own name a bond given to the wife alone, during coverture; and it is held that he may do so, upon a bond given to her alone before marriage. 2 Kent, 120, and the cases there cited. If a bond given to the wife after marriage, is secured by a mortgage also given to her, he may bring an action on the bond in his own name, and why may he not also on the mortgage, with proper averments, showing his rights and the legal effect of the security ?

The money due on the bond is his, and if the land mortgaged is taken to enforce payment, or as payment, if not redeemed, there seems no good reason, why that also might not be claimed and held in the name of the husband. It is a doctrine, well established by the authorities cited for the tenant, that when real estate is conveyed to husband and wife, they become joint tenants, and of a peculiar character; for they do not take by moieties, but by entireties, the husband and wife being regarded by law as one person.

Hence if an estate be conveyed expressly in joint tenancy to husband and wife and to a stranger, the latter shall take one moiety, and the husband and wife, as one person, shall take the other moiety. Shaw et al. v. Hearsey et al. 5 Mass. R. 521.

If then there could be any question, whether the husband could bring an action in his own name, upon a mortgage given to secure a support for the wife, which enures to the benefit of the husband, who is otherwise bound for her support, if such mortgage is given to husband and wife, we are of opinion, that he thereby acquires such a seisin, as will enable him to maintain an action in bis own name.

The husband is most interested in the maintenance of the wife ; and to him the duty may safely be confided. lie conveyed his land to another, and took a reconveyance to himself and her, which the grantor was to hold however, if he furnished suitable maintenance for them both. Failing to do so, the husband has a right to take the land, which he had appropriated for this purpose, and which was the source from which the support was to come, into his own hands,- that he may be enabled thereby to provide for himself and her. Exceptions overruled.