Munson, J.
T. R. Gordon and his wife, the oratrix Hattie, executed to the Capital Savings Bank and Trust Company, to secure notes of the said T. R., a mortgage of certain premises owned by the said T. R., and occupied as a homestead. T. R. Gordon afterwards gave three other mortgages of the premises to different parties, signed only by himself, in the first two of which the homestead was excepted. The defendant Deavitt became the assignee of the first of these three mortgages, and brought a foreclosure suit thereon, making T. R. Gordon and the holders of the two later mortgages parties defendant, and obtained a decreee which became absolute. After this, the Bank obtained a decree on its mortgage, foreclosing T. R. Gordon, the oratrix Hattie and the defendant Deavitt. The oratrix Hattie paid the amount of this decree within the time limited [62]*62for redemption, and now claims to be subrogated to all the rights of the Bank. The defendant contends that the payment by the wife extinguished the Bank indebtedness; and claims further that if the payment did not have this effect, it merely entitled the wife to a contribution from the other parties benefited thereby.
The homestead of a housekeeper or head of a family consists of a dwelling house, outbuildings and land used in connection therewith, not exceeding five hundred dollars in value, and used or kept by such housekeeper or head of a family as a homestead. V. S. 2179; P. S. 2544. The statute provides that no homestead nor interest therein shall be conveyed by the owner, if a married man, except by way of mortgage for the purchase money, unless his wife joins in the execution and acknowledgment of the conveyance; but that a conveyance thereof, or of an interest therein, not so made and acknowledged, shall be inoperative so far only as relates to the homestead. V. S. 2189; P. S. 2553. It is provided further that when such homestead or lands included therein are mortgaged by the joint deed of husband and wife, the joining of the wife in such mortgage shall have no other effect than to bar her claim to the homestead as against such mortgage; and that if such mortgage includes lands other than the homestead, and the owner thereof dies, such other lands shall be first sold by the executor or administrator and applied on the mortgage, and the residue only rest on the homestead. Y. S. 2191; P. S. 2555.
The history and original form of some of these provisions may have a bearing upon the question at issue. In the first homestead act, No. 20, Acts of 1849, the provision regarding alienation, apart from an exception as to purchase money, was as follows: “Such homestead shall not be alienated or mortgaged by the owner thereof, if a married man, except by the joint deed of such husband and wife.” By No. 18 Acts of 1858, it was provided that the above section should be so construed that if the homestead, or any lands including the homestead, belonging to a married man, had been or should be mortgaged by the joint deed of husband and wife, the joining therein by the wife should have “no other effect than to bar her right or claim to such homestead as against said mortgage.” By No. 36, Acts of 1860, it was enacted that [63]*63whenever any deed, mortgage, lease or conveyance of the homestead, except mortgages for the purchase money, should be executed by the owner thereof, if a married man, without his wife joining therein, such deed, mortgage, lease or conveyance should be “wholly inoperative to convey any right, title or interest in such homestead,” and that the rights of the parties, and of all persons claiming under them or either of them, should “be and remain the same as if no such deed had been executed.” This provision was condensed in the revision of 1863, but without changing its substance. Gen. Sts. Ch. 68, §10. The provision restricting the effect of the wife’s execution of a mortgage was omitted from that revision, but it was re-enacted by No. 17, Acts of 1865, in terms identical with the act of 1858. Since then the provision declaring the husband’s sole deed of the homestead to be wholly inoperative, and that restricting the effect of the wife’s joining in the mortgage, have both been retained; and they are now included in P. S. 2553 and 2555, as before stated. In Abell v. Lathrop, 47 Vt. 375, decided in 1875, it was said of the section regarding alienation, that “no more explicit language could be used to negative the right of the husband to convey either his own or his family’s interest in the homestead”; and it was accordingly held that a deed signed by the husband alone is absolutely void as regards the homestead, and leaves the title to it as if no deed had been executed. This decision was questioned in Whiteman v. Field, 53 Vt. 554, but the doctrine of the earlier case was reasserted in Martin v. Harrington, 73 Vt. 193, 50 Atl. 1074, 87 Am. St. Rep. 704, and again in Davis v. Davis, 81 Vt. 259, 69 Atl. 876, 130 Am. St. Rep. 1035.
The statutes relating to the levying of executions on property which includes a homestead must be referred to, because of their connection with a case relied upon by the defendant. The homestead right is exempt from attachment and execution except upon causes of action existing at the time of acquiring it. Acts 1849, No. 20, §§1, 6; P. S. 2544, 2550. In levying an execution upon premises in which there is a homestead, the homestead is to be set out in the manner prescribed, and levy made upon the residue of the premises as in other cases. Acts 1849, No. 20, § 2; P. S. 2545. It was enacted further by [64]*64Gen. Sts. Ch. 68 § 3, that if such premises were incumbered by a mortgage the homestead should be set out as before provided, and that the levy should then proceed as in the case of mortgages existing upon distinct parcels of land. In Lamb v. Mason, 50 Vt. 345, a levying creditor, whose claim was not enforceable against the homestead, paid a mortgage which covered the homestead to save his rights under the levy; and it was held by a divided Court that he became subrpgated to the rights of the mortgagee, and could charge the homestead with the payment of its proportion of the mortgage debt. Subsequent to this decision, by No. 74, Acts of 1888, the section last above stated was amended by adding to it the following: “Provided, however, in making such levy only such portion of the mortgage as is in excess of the appraised value of-the real estate, aside from the homestead, shall rest on said homestead.” P. S. 2546. The force of the above decision as authority for a ratable apportionment of the incumbrance at the instance of an attaching creditor who has become assignee of the mortgage, was taken away by this change in the statute. The express restriction of the amendment seems inconsistent with the application of any principle of equity which would increase the burden of the homestead in aid of a creditor whose claim has not been charged upon it in accordance with the statute. Moreover, this Court has said that when equity requires it the court may deny to the assignee of a mortgage a right which the mortgagee himself could have asserted. Bailey v. Warner, 28 Vt. 87. The question here is whether the holder of a subsequent incumbrance which did not cover the homestead can reach the homestead •interest through the wife’s redemption of the premises from a mortgage which covered the homestead; and this must be determined upon a consideration of the statute as a whole.
The homestead is an estate or interest created by statute in the property of the husband for the protection of the family.
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Munson, J.
T. R. Gordon and his wife, the oratrix Hattie, executed to the Capital Savings Bank and Trust Company, to secure notes of the said T. R., a mortgage of certain premises owned by the said T. R., and occupied as a homestead. T. R. Gordon afterwards gave three other mortgages of the premises to different parties, signed only by himself, in the first two of which the homestead was excepted. The defendant Deavitt became the assignee of the first of these three mortgages, and brought a foreclosure suit thereon, making T. R. Gordon and the holders of the two later mortgages parties defendant, and obtained a decreee which became absolute. After this, the Bank obtained a decree on its mortgage, foreclosing T. R. Gordon, the oratrix Hattie and the defendant Deavitt. The oratrix Hattie paid the amount of this decree within the time limited [62]*62for redemption, and now claims to be subrogated to all the rights of the Bank. The defendant contends that the payment by the wife extinguished the Bank indebtedness; and claims further that if the payment did not have this effect, it merely entitled the wife to a contribution from the other parties benefited thereby.
The homestead of a housekeeper or head of a family consists of a dwelling house, outbuildings and land used in connection therewith, not exceeding five hundred dollars in value, and used or kept by such housekeeper or head of a family as a homestead. V. S. 2179; P. S. 2544. The statute provides that no homestead nor interest therein shall be conveyed by the owner, if a married man, except by way of mortgage for the purchase money, unless his wife joins in the execution and acknowledgment of the conveyance; but that a conveyance thereof, or of an interest therein, not so made and acknowledged, shall be inoperative so far only as relates to the homestead. V. S. 2189; P. S. 2553. It is provided further that when such homestead or lands included therein are mortgaged by the joint deed of husband and wife, the joining of the wife in such mortgage shall have no other effect than to bar her claim to the homestead as against such mortgage; and that if such mortgage includes lands other than the homestead, and the owner thereof dies, such other lands shall be first sold by the executor or administrator and applied on the mortgage, and the residue only rest on the homestead. Y. S. 2191; P. S. 2555.
The history and original form of some of these provisions may have a bearing upon the question at issue. In the first homestead act, No. 20, Acts of 1849, the provision regarding alienation, apart from an exception as to purchase money, was as follows: “Such homestead shall not be alienated or mortgaged by the owner thereof, if a married man, except by the joint deed of such husband and wife.” By No. 18 Acts of 1858, it was provided that the above section should be so construed that if the homestead, or any lands including the homestead, belonging to a married man, had been or should be mortgaged by the joint deed of husband and wife, the joining therein by the wife should have “no other effect than to bar her right or claim to such homestead as against said mortgage.” By No. 36, Acts of 1860, it was enacted that [63]*63whenever any deed, mortgage, lease or conveyance of the homestead, except mortgages for the purchase money, should be executed by the owner thereof, if a married man, without his wife joining therein, such deed, mortgage, lease or conveyance should be “wholly inoperative to convey any right, title or interest in such homestead,” and that the rights of the parties, and of all persons claiming under them or either of them, should “be and remain the same as if no such deed had been executed.” This provision was condensed in the revision of 1863, but without changing its substance. Gen. Sts. Ch. 68, §10. The provision restricting the effect of the wife’s execution of a mortgage was omitted from that revision, but it was re-enacted by No. 17, Acts of 1865, in terms identical with the act of 1858. Since then the provision declaring the husband’s sole deed of the homestead to be wholly inoperative, and that restricting the effect of the wife’s joining in the mortgage, have both been retained; and they are now included in P. S. 2553 and 2555, as before stated. In Abell v. Lathrop, 47 Vt. 375, decided in 1875, it was said of the section regarding alienation, that “no more explicit language could be used to negative the right of the husband to convey either his own or his family’s interest in the homestead”; and it was accordingly held that a deed signed by the husband alone is absolutely void as regards the homestead, and leaves the title to it as if no deed had been executed. This decision was questioned in Whiteman v. Field, 53 Vt. 554, but the doctrine of the earlier case was reasserted in Martin v. Harrington, 73 Vt. 193, 50 Atl. 1074, 87 Am. St. Rep. 704, and again in Davis v. Davis, 81 Vt. 259, 69 Atl. 876, 130 Am. St. Rep. 1035.
The statutes relating to the levying of executions on property which includes a homestead must be referred to, because of their connection with a case relied upon by the defendant. The homestead right is exempt from attachment and execution except upon causes of action existing at the time of acquiring it. Acts 1849, No. 20, §§1, 6; P. S. 2544, 2550. In levying an execution upon premises in which there is a homestead, the homestead is to be set out in the manner prescribed, and levy made upon the residue of the premises as in other cases. Acts 1849, No. 20, § 2; P. S. 2545. It was enacted further by [64]*64Gen. Sts. Ch. 68 § 3, that if such premises were incumbered by a mortgage the homestead should be set out as before provided, and that the levy should then proceed as in the case of mortgages existing upon distinct parcels of land. In Lamb v. Mason, 50 Vt. 345, a levying creditor, whose claim was not enforceable against the homestead, paid a mortgage which covered the homestead to save his rights under the levy; and it was held by a divided Court that he became subrpgated to the rights of the mortgagee, and could charge the homestead with the payment of its proportion of the mortgage debt. Subsequent to this decision, by No. 74, Acts of 1888, the section last above stated was amended by adding to it the following: “Provided, however, in making such levy only such portion of the mortgage as is in excess of the appraised value of-the real estate, aside from the homestead, shall rest on said homestead.” P. S. 2546. The force of the above decision as authority for a ratable apportionment of the incumbrance at the instance of an attaching creditor who has become assignee of the mortgage, was taken away by this change in the statute. The express restriction of the amendment seems inconsistent with the application of any principle of equity which would increase the burden of the homestead in aid of a creditor whose claim has not been charged upon it in accordance with the statute. Moreover, this Court has said that when equity requires it the court may deny to the assignee of a mortgage a right which the mortgagee himself could have asserted. Bailey v. Warner, 28 Vt. 87. The question here is whether the holder of a subsequent incumbrance which did not cover the homestead can reach the homestead •interest through the wife’s redemption of the premises from a mortgage which covered the homestead; and this must be determined upon a consideration of the statute as a whole.
The homestead is an estate or interest created by statute in the property of the husband for the protection of the family. It cannot be conveyed by the husband, “the owner thereof,”' unless the wife joins in the execution and acknowledgment of the deed. It can be charged with the payment of the husband’s indebtedness only by a conveyance so executed. The wife is thus invested with the right to bar the husband from selling or incumbering. Her interest springs from the husband’s title, [65]*65but is adverse to his right of transfer. The joint deed, as to her, is not a conveyance of the title, but a mere release or waiver. In the case of a mortgage, her concurrence in the execution is no more than a legal and binding consent to the incumbrance. She retains her entire homestead interest subject to that incumbrance, and that interest is paramount to any lien which the husband can place upon the property. Davis v. Davis, 81 Vt. 259, 69 Atl. 876, 130 Am. St. Rep. 1035. In view of these considerations, it cannot be said that Mrs. Gordon’s payment of the Bank decree was a payment in the interest of her husband, and therefore a payment which extinguished the indebtedness.
But the defendant insists that if the Bank indebtedness is to be kept on foot, the oratrix cannot foreclose against the later incumbrances without subjecting the homestead to a ratable contribution. The right of contribution among persons holding interests in lands affected by a mortgage exists when their relations to one another are such that the one paying pays for the benefit of all. If one pays to protect his own interest, and that interest is independent of and superior to those of the others, the doctrine of contribution has no application. The right depends not merely upon the fact of a common subordination to the indebtedness paid, but upon the relations which the holders of the subordinate interests sustain among themselves. Both points must be considered in determining whether the parties stand upon the equal footing essential to contribution.
The oratrix and the defendant are not in the same class. The homestead right is superior to any lien that can be placed upon the property by the husband alone; and while that right is existent it can be asserted by the wife, regardless of the husband’s position or attitude. The connection of the oratrix in her marital capacity with the inception of the Bank mortgage as security for her husband’s debt, did not debar her from the privilege of redeeming the property in her separate capacity. In doing this she assumed no obligation to the defendant as the holder of a subsequent mortgage of her husband. She had a right to redeem the property for the purpose of holding the homestead intact as against his and all mortgages which she had not signed. The rights of the oratrix and the defendant [66]*66are not shares in an undivided equity, but separate equities in undivided property. This will appear from considering the effect of variations in the value of the premises. An increase in value would increase the defendant’s equity, but not the equity of the oratrix. A decrease in value might wipe out the defendant’s equity without impairing the equity of the oratrix. It is true that the homestead is an inchoate interest while the husband lives, but if the law does not protect it in its inchoate state it will never survive to become anything more. The arguments based upon the power of the husband to defeat the homestead right by abandonment or the acquisition of another homestead were fully presented in Whiteman v. Field, before cited; but when reviewed in Martin v. Harrington, they were not considered sufficiently potent to require an abandonment of the doctrine announced in Abell v. Lathrop.
It seems inconsistent with the whole tenor of the homestead law to give a mortgage executed by the wife an effect beyond its terms because of subsequent mortgages executed by the husband alone. Moreover, the statute expressly provides that her joining in the execution of a mortgage shall have no other effect than to bar her claim to the homestead as against such mortgage. Furthermore, the Court has declared that a mortgage of the homestead given by the husband alone is void, and leaves the title as if it had not been made. Yet, upon the defendant’s theory the execution of a mortgage to secure a specific and limited obligation will subject the wife’s interest to the imposition of further burdens by as many subsequent mortgages as the husband may see fit to execute. We think these considerations plainly indicate that the doctrine of contribution is not applicable.
There are a number of cases in other jurisdictions which support these views, some of which are directly in point. In North Carolina, where the wife has dower in the lands of which the husband is seized during coverture, it is said that although a wife who releases her dower to secure her husband’s debt is not technically a surety for the husband, equity will treat her as such. Gore v. Townsend, 105 N. C. 228, 11 S. E. 160, 8 L. R. A. 443. It was said by the same court in Wilson v. Patton, 87 N. C. 318, where a marshalling of the fund was [67]*67•claimed by execution creditors, that the rule referred to has no application to a case where the homestead is involved; that the homestead right is an equity superior to all other equities. It is said in McArthur v. Martin, 23 Minn. 74, that when the Tule for marshalling assets will indirectly subject the homestead to the payment of debts not otherwise charged upon it, a court of equity will not apply it. It is said in First National Bank v. Browne, 128 Ala. 557, 29 South. 552, 86 Am. St. Rep. 156, that neither the rule for marshalling assets nor the fiction of subrogation will be applied to subject the homestead to incumbrances not created by the debtor himself. Where the husband and wife had given a mortgage of lands which included the homestead, and another mortgage of the premises had been given by the husband alone, it was said that the second mortgage gave its holder no right to have the liability of the homestead Increased, and that it would not do to allow any fiction or theory to subvert rights secured by the statute. Armitage v. Toll, 64 Mich. 412, 31 N. W. 408. It is said in the case last cited that the wife has as much right to protect the homestead rights •of herself and family as the husband has; that the execution •of a mortgage upon the homestead by husband and wife operates to release the homestead right only to the extent necessary to satisfy the mortgage; and that the law will not construe the mortgage into an agreement to carry an increased liability. In McCreery v. Schaffer, 26 Neb. 173, 41 N. W. 996, husband and wife had mortgaged a tract of land which included their homestead, and it was contended by subsequent mortgagees of the husband that the homestead property should be made to bear its share of the indebtedness secured by the conveyance of both. The decree below required that the property not exempt be first exhausted, and in sustaining this decree it was said that the homestead right is superior to the rights of all creditors except those to whom it has been legally mortgaged; that a mortgage executed by the husband alone is void as against the homestead; and that this being so such mortgagees can have no interest in the homestead, no lien upon it, and no remedy as against it. In Brown v. Cozard, 68 Ill. 178, the court remarked that the object of the suit was to make the release of the homestead exemption, which had been made to the mortgagee, op[68]*68erative for the benefit of a judgment creditor, to whom there had been no release; and said that the relief sought would be in violation of the intent of the statute, which was that the homestead right should not be injuriously affected on account of any indebtedness without an express assent. In LaRue v. Gilbert, 18 Kan. 220, a mortgage of premises which included the homestead was foreclosed by the mortgagee, and it was ordered in the decree, with his consent, that the real estate other than the homestead be sold first. This order was contested by a judgment creditor, who insisted that the homestead be sold first. The court held the order proper, and said that in giving a mortgage on the homestead the debtor waives the homestead right to the mortgagee only, and does not thereby open the door to other creditors, or increase their equities. In Vincent v. Vineyard, 24 Mont. 207, 61 Pac. 131, 81 Am. St. Rep. 423, it is said that the mortgage of a homestead operates as a waiver of the homestead exemption in favor of the mortgagee and those claiming under him, but that the waiver does not inure to the benefit of other persons; that the execution of the mortgage is not an agreement that other debts, may be satisfied out of the exemption; and that to require the mortgagee to satisfy his debt out of the homestead would be to subject the homestead indirectly to the payment of debts; not properly chargeable upon it. In McLaughlin v. Hart, 46 Cal. 638, the husband and wife joined in the execution of a mortgage of premises which included the homestead, and the husband afterwards mortgaged the part not covered by the homestead; and the court held that in foreclosing a mortgage signed by the wife the part not covered by the homestead should be sold first; saying that the outside lands constituted,, to the extent of their value, a security against the possible sacrifice of the homestead to pay the debt resting upon it, and that this security could not be impaired to the wife’s injury without her consent. In Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106, 110 Am. St. Rep. 827, it was thought to be established by authority, and apparent without authority, that when the homestead is incumbered by a mortgage given to secure the husband’s debt, and the wife pays it, not on his request,, but solely to protect her homestead right, she becomes subro[69]*69gated to the rights of the mortgagee. The precise point before us has arisen in New Hampshire; and it is there held that when a married woman who has joined her husband in the execution of a mortgage covering the homestead redeems from that mortgage, equity will preserve her homestead interest unaffected by a second mortgage in which she has not joined, by subrogating her to the rights of the first mortgagee; that the equity of the wife is superior to that of the second mortgagee, and that no contribution will be required'. Smith v. Hall, 67 N. H. 200, 30 Atl. 409; Pollard v. Noyes, 60 N. H. 184.
Decree modified, and affirmed as modified; and cause remanded with directions that the homestead be set out as provided by statute, and that the remainder of the premises be appraised, and that defendants pay for the benefit of the orators the amount of said appraisal, or such part thereof as will equal the redemption payment and interest, with costs, by a day to be fixed by the court, ar be foreclosed.