Clayton’s Notebook, 180
High Court of Errors and Appeals of Delaware.
June, 1818.
Ejectment. The plaintiffs,[2] tenants in common of the lands in question, mortgaged them to one Evans and afterwards conveyed them to Harris by deed of bargain and sale. An ejectment was subsequently brought by Harris to recover the possession of the premises, and J. and S. Robinson set up their mortgage to Evans in bar, etc.
On the argument THE CHANCELLOR took occasion to observe that the widow of cestui que trust was in this state entitled to her dower, and that the hasty decisions which gave rise to the rule in the English courts to the contrary were disregarded. Godwin v. Winsmore, 2 Atk. 526.
CHANCELLOR RIDGELY.
The court below was right:
1. The Robinsons were estopped by their deed to Harris from setting up the mortgage to Evans; they were barred to aver against their own act. Esp.N.P. 457.
2. We recognize Doe ex dem. Bristowe v. Pegge, 1 Term 758, as sound law, notwithstanding its being overruled in the case Doe ex dem. Hodgson v. Staple, 2 Term 684. There was no dispute between Harris and Evans; the latter did not interfere in the suit. Mortgages are, more especially in this state, to be considered merely in the light of securities for the payment of money; the mortgagee is rarely, if ever, put in possession of the land.
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