STORY, Circuit Justice.
So far as the answers in this cause set up new facts by way of discharge or avoidance of the matter of the bill, or allege separate and independent agreements, they are not evidence for the defendants; but all such allegations must be substantiated by proof aliunde. This is the general doctrine in equity, and is not now susceptible of any real doubt. Parteriche v. Powlet, 2 Atk. 383; Brace v. Taylor, Id. 253; Ridgeway v. Darwin, 7 Ves. 405; Thompson v. Lambe, Id. 587; Kirkpatrick v. Love, 2 Amb. 589; Blount v. Burrow, 1 Ves. Jr. 546; Robinson v. Scotney, 19 Ves. 583; Hart v. Ten Eyck, 2 Johns. Ch. 62. There is also an allegation in the answer of the defendant, Jeremiah Phillips, of an independent oral agreement previous to, or, at the time of the execution of the conveyance and defeasance in 1792, that he should hold the estate as security for the payment of an account duo him, &c. beyond the terms of the agreement in the defeasance. As to this point it is sufficient to say, that no parol evidence can be admitted to vary or contradict the terms of that agreement; and therefore the case must stand upon those terms, and the rights of Phillips be judged of accordingly.
One of the questions, which meets the court in the threshold of this cause, is. whether the conveyance of 1792 is a conveyance in joint tenancy, or in common. The answers set it up as a conveyance in joint tenancy. And so, certainly, it would be construed at the common law. But a statute of Rhode Island has broken in upon the doctrine of the common law. In the digest of 1798 (page 272, § 8), it is provided, “that all gifts, grants, feoffments, devises, and other conveyances of any lands, &c. which have been, or shall be made to two or more persons, whether for years, for life, in tail, or in fee, shall be taken &e. to be estates in common, and not in joint tenancy, unless it is, or shall be therein expressly said, that the grantees &c. shall have or hold the same lands &e. as joint tenants, or in joint tenancy, or to them and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly showing it to be the intention of the parties to such gifts, grants, &c. that such lands &c. [238]*238should vest, or be holden as joint estates, and not as estates in common.” There is a similar act in Massachusetts; and it has been there decided upon the construction of that act, that mortgages to two or more persons in fee are excepted by implication, and are to be construed as joint tenancies. The first case, in which this doctrine was asserted, is Appleton v. Boyd, 7 Mass. 131. Chief Justice Parsons there said, “The conveyance before us is a mortgage to two persons to secure the payment of a debt jointly due to the mortgagees. As upon the death of either mortgagee, the remedy to recover the debt would survive, we are of opinion, that it was the intent of the parties, that the mortgage or collateral security should comport with that remedy; and for this purpose, that the mortgaged estate should survive. Upon any other construction, but one moiety of the mortgaged tenements would remain a collateral security for the joint debt, which would be clearly repugnant to the intention of the parties to the mortgage.” If the consequence here stated were true in point of law, there would certainly lie good reason for creating, by implication, such an exception. But with great deference to the learned judge, the doctrine, that a conveyance in mortgage to two persons, as tenants in common, becomes by the death of either no security, except for a moiety, cannot, in my judgment, be maintained in point of law. No authority is cited for it, and It seems to me irreconcilable with established principles. It cannot be deduced from the fact, that the debt vests by sur-vivorship in one party, while the estate would pass to another. For at the common law upon the death of the mortgagee the estate in the land vests in the heir, while the debt vests in the administrator. Com. Dig. “Chancery,” 4 A, 8; Bac. Abr. “Mortgage,” D, 2; Petty v. Styward, 1 Ch. R. 31, *p. 57, 1 Bq. Cas. Abr. 290; 2 Pow. Mortg. 699. Upon the like argument, it ought to follow in such ease, that by the death of the mortgagee the whole security in the land should be gone; and yet it is well established, that the heir takes the land by descent, subject to redemption; and that the debt belongs to the administrator. If a conveyance were made to two mortgagees in fee, expressly as tenants in common, as security for a joint debt, they would so hold it by the common law; and upon the death of either, his share would descend to his heir; as tenant in common, and the survivor would hold the other moiety, as tenant in common, at the same time that the debt would vest solely in him by survivorship, for the purposes of the remedy. Suppose a sole mortgagee dies, leaving daughters, who are his heirs; they take the estate in equal shares as parceners, and not as joint tenants, and yet the right to the debt belongs to neither, but belongs to the administrator. The remedy, then, for the debt, being in one person, while the right to the estate is another, furnishes no just ground for the distinction contended for. The estate is still a security for the debt, into whoseever hands it passes. Even in Massachusetts, it has been held, that an estate in two mortgagees, though joint before, is not so after, foreclosure; but in the latter case, it becomes a tenancy in common. However that may be, when both mortgagees are living at the foreclosure, there is some difficulty in coming to the same result, if the foreclosure be by the survivor; for that would be to turn the estate from a trust into a use by the mere act of foreclosure. Indeed, in England, an inference in .case of mortgages is commonly deduced in favour of tenancies in common, rather than the reverse, at least to the extent of holding the debt not subject in equity to survivorship. See 2 Pow. Mortg. p. 699, c. 15; Bac. Abr. “Mortgage,” D, 2; Partridge v. Pawlet, 1 Atk. 467. 2 Atk. 55; Lake v. Craddock, 3 P. Wms. 158. Thus in Rigden v. Vallier, 2 Ves. Sr. 258, 3 Atk. 731, Lord Hardwicke said, “This court has taken a latitude in construing a tenancy in common, without the words, ‘equity to be divided,’ on the foot of the intent; and therefore determined, that if two men jointly and equally advance a sum of money on mortgage, suppose in fee, and take a security, and take that security to them and their heirs without any words, ‘equally to be divided between them,’ there shall be surviv-orship; and so, if they were to foreclose the estate, the estate should be divided between them, because their intent is presumed to be so.” So that his lordship held the fact of its being a mortgage repelled in England the notion of its being a joint tenancy. A fortiori, one should suppose, it ought to be repelled under the statute of Rhode Island. Sitting in Massachusetts, I should feel myself bound by the construction given by .the local courts to their own statute; but sitting in another state, I am at liberty to adopt such a construction, only so far as it is built upon satisfactory reasoning'. I cannot say. that the case of a mortgage “clearly and manifestlj’” shows the conveyance to be intended to be a joint tenancy. The inconveniences of such a construction in case of a foreclosure after survivorship appear to me not inconsiderable; and I can perceive no ground of convenience, as to the remedy, sufficient to justify an inference of the intent of the parties to create a joint tenancy. On the contrary, my judgment follows that of Lord Hardwicke, in construing the intention to be to create a tenancy in common. The defendant, Jeremiah Phillips, was not then, in virtue of his survivorship, entitled to the whole estate.
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STORY, Circuit Justice.
So far as the answers in this cause set up new facts by way of discharge or avoidance of the matter of the bill, or allege separate and independent agreements, they are not evidence for the defendants; but all such allegations must be substantiated by proof aliunde. This is the general doctrine in equity, and is not now susceptible of any real doubt. Parteriche v. Powlet, 2 Atk. 383; Brace v. Taylor, Id. 253; Ridgeway v. Darwin, 7 Ves. 405; Thompson v. Lambe, Id. 587; Kirkpatrick v. Love, 2 Amb. 589; Blount v. Burrow, 1 Ves. Jr. 546; Robinson v. Scotney, 19 Ves. 583; Hart v. Ten Eyck, 2 Johns. Ch. 62. There is also an allegation in the answer of the defendant, Jeremiah Phillips, of an independent oral agreement previous to, or, at the time of the execution of the conveyance and defeasance in 1792, that he should hold the estate as security for the payment of an account duo him, &c. beyond the terms of the agreement in the defeasance. As to this point it is sufficient to say, that no parol evidence can be admitted to vary or contradict the terms of that agreement; and therefore the case must stand upon those terms, and the rights of Phillips be judged of accordingly.
One of the questions, which meets the court in the threshold of this cause, is. whether the conveyance of 1792 is a conveyance in joint tenancy, or in common. The answers set it up as a conveyance in joint tenancy. And so, certainly, it would be construed at the common law. But a statute of Rhode Island has broken in upon the doctrine of the common law. In the digest of 1798 (page 272, § 8), it is provided, “that all gifts, grants, feoffments, devises, and other conveyances of any lands, &c. which have been, or shall be made to two or more persons, whether for years, for life, in tail, or in fee, shall be taken &e. to be estates in common, and not in joint tenancy, unless it is, or shall be therein expressly said, that the grantees &c. shall have or hold the same lands &e. as joint tenants, or in joint tenancy, or to them and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly showing it to be the intention of the parties to such gifts, grants, &c. that such lands &c. [238]*238should vest, or be holden as joint estates, and not as estates in common.” There is a similar act in Massachusetts; and it has been there decided upon the construction of that act, that mortgages to two or more persons in fee are excepted by implication, and are to be construed as joint tenancies. The first case, in which this doctrine was asserted, is Appleton v. Boyd, 7 Mass. 131. Chief Justice Parsons there said, “The conveyance before us is a mortgage to two persons to secure the payment of a debt jointly due to the mortgagees. As upon the death of either mortgagee, the remedy to recover the debt would survive, we are of opinion, that it was the intent of the parties, that the mortgage or collateral security should comport with that remedy; and for this purpose, that the mortgaged estate should survive. Upon any other construction, but one moiety of the mortgaged tenements would remain a collateral security for the joint debt, which would be clearly repugnant to the intention of the parties to the mortgage.” If the consequence here stated were true in point of law, there would certainly lie good reason for creating, by implication, such an exception. But with great deference to the learned judge, the doctrine, that a conveyance in mortgage to two persons, as tenants in common, becomes by the death of either no security, except for a moiety, cannot, in my judgment, be maintained in point of law. No authority is cited for it, and It seems to me irreconcilable with established principles. It cannot be deduced from the fact, that the debt vests by sur-vivorship in one party, while the estate would pass to another. For at the common law upon the death of the mortgagee the estate in the land vests in the heir, while the debt vests in the administrator. Com. Dig. “Chancery,” 4 A, 8; Bac. Abr. “Mortgage,” D, 2; Petty v. Styward, 1 Ch. R. 31, *p. 57, 1 Bq. Cas. Abr. 290; 2 Pow. Mortg. 699. Upon the like argument, it ought to follow in such ease, that by the death of the mortgagee the whole security in the land should be gone; and yet it is well established, that the heir takes the land by descent, subject to redemption; and that the debt belongs to the administrator. If a conveyance were made to two mortgagees in fee, expressly as tenants in common, as security for a joint debt, they would so hold it by the common law; and upon the death of either, his share would descend to his heir; as tenant in common, and the survivor would hold the other moiety, as tenant in common, at the same time that the debt would vest solely in him by survivorship, for the purposes of the remedy. Suppose a sole mortgagee dies, leaving daughters, who are his heirs; they take the estate in equal shares as parceners, and not as joint tenants, and yet the right to the debt belongs to neither, but belongs to the administrator. The remedy, then, for the debt, being in one person, while the right to the estate is another, furnishes no just ground for the distinction contended for. The estate is still a security for the debt, into whoseever hands it passes. Even in Massachusetts, it has been held, that an estate in two mortgagees, though joint before, is not so after, foreclosure; but in the latter case, it becomes a tenancy in common. However that may be, when both mortgagees are living at the foreclosure, there is some difficulty in coming to the same result, if the foreclosure be by the survivor; for that would be to turn the estate from a trust into a use by the mere act of foreclosure. Indeed, in England, an inference in .case of mortgages is commonly deduced in favour of tenancies in common, rather than the reverse, at least to the extent of holding the debt not subject in equity to survivorship. See 2 Pow. Mortg. p. 699, c. 15; Bac. Abr. “Mortgage,” D, 2; Partridge v. Pawlet, 1 Atk. 467. 2 Atk. 55; Lake v. Craddock, 3 P. Wms. 158. Thus in Rigden v. Vallier, 2 Ves. Sr. 258, 3 Atk. 731, Lord Hardwicke said, “This court has taken a latitude in construing a tenancy in common, without the words, ‘equity to be divided,’ on the foot of the intent; and therefore determined, that if two men jointly and equally advance a sum of money on mortgage, suppose in fee, and take a security, and take that security to them and their heirs without any words, ‘equally to be divided between them,’ there shall be surviv-orship; and so, if they were to foreclose the estate, the estate should be divided between them, because their intent is presumed to be so.” So that his lordship held the fact of its being a mortgage repelled in England the notion of its being a joint tenancy. A fortiori, one should suppose, it ought to be repelled under the statute of Rhode Island. Sitting in Massachusetts, I should feel myself bound by the construction given by .the local courts to their own statute; but sitting in another state, I am at liberty to adopt such a construction, only so far as it is built upon satisfactory reasoning'. I cannot say. that the case of a mortgage “clearly and manifestlj’” shows the conveyance to be intended to be a joint tenancy. The inconveniences of such a construction in case of a foreclosure after survivorship appear to me not inconsiderable; and I can perceive no ground of convenience, as to the remedy, sufficient to justify an inference of the intent of the parties to create a joint tenancy. On the contrary, my judgment follows that of Lord Hardwicke, in construing the intention to be to create a tenancy in common. The defendant, Jeremiah Phillips, was not then, in virtue of his survivorship, entitled to the whole estate. He was but a tenant in common with the other grantees, and ultimately only with Job Randall, the father, whose title the plaintiff possesses. But if the law were otherwise, it would not, in the eye of a court of equity, materially change [239]*239the posture of the present case. It is clear, that the mortgage was intended to secure the advances made by each of the grantees; iind though the title to the estate might, in a case of joint tenancy, survive at law, it would in equity be held as a trust for the benefit of the representatives of the deceased mortgagees to the extent of their interests in the debt, secured by the mortgage. The case of Petty v. Styward, 1 Ch. R. 57, 1 Eq. Cas. Abr. 200, is directly in point, if, indeed, the inference would not be irresistible from the nature of such a transaction. See, also. 2 Pow. Mortg. 099. This point, indeed, is of itself of minor consequence in the cause, for if the plaintiff is the exclusive assignee of the equity of redemption, he is entitled to maintain his bill to redeem, and the defendants are entitled to nothing more than the balance of their debt, if any is now due to them.
The more important point is, whether the .assignment by William West, set up in the bill, is good and valid in point of law. First, it is said, that it was a mere voluntary conveyance without any consideration to support it. It it were so. still it is not perceived. how it would help the defendants. A voluntary conveyance is sufficient to pass an equity of redemption, so as to entitle the .assignee to redeem. It is of no consequence to the mortgagee how the party obtained his title, or what is the consideration for it, if, as to him, it is a legal assignment. If his debt is paid, any farther inquiry is wholly immaterial to his interests. But the assignment itself purports to be for the valuable consideration of $1000, the receipt whereof is in the deed itself acknowledged by the assignor. The assignor could not be permitted to aver against the very terms of his -deed, that he never received any consideration, if he were now attempting to controvert it; and, a fortiori, it does not lie m the mouth of a stranger to make that objection, whatever might be the right of creditors. Then again it is said, that the assignment was fraudulent and void, because it was intended merely to make the assignor ::i witness by a pretended sale in fraud of the parties claiming Jenks’s mortgage. Assuming the fact to be, as it is contended, still such a deed, made for such a purpose, is not a mere nullity. It is good as between the parties, and binds them and their privies. It may be avoided by any third persons, whose interests are intended to be defeateo by it; but it is not absolutely void. The general doctrine is. that a conveyance in fraud of the law binds parties and privies, and cannot be acted upon, so far as respects them, as a nullity. There is nothing in the present case to extract it from the operation of this principle. But bow is the assignment proved to be in fact fraudulent? Independently of the testimony of the heirs •of William West, there is nothing in the ■ cause, from which such a conclusion can be justly deduced. Their testimony has been objected to, upon the ground of its incompetency on account of their interest. The objection appears to me well founded. They are directly interested in the matter in issue. If the assignment be set aside, as void, their title to the equity of redemption, as heirs, is completely established. So that, in effect, they are now to testify directly to their own interest and title. Under such circumstances I think their testimony inadmissible. At law it has been held, that a party, claiming a rigln to the thing in controversy, is an incompetent witness to establish that right. See Buckland v. Tankard, 5 Term R. 578. Whether this rule be universally correct, it is not necessary to inquire; but if, as in the present case, the testimony establishes the right of the witness, as an heir, it appears to me, that .he has a direct interest in the event by defeating the plaintiff. It has been stated, in a late work on Evidence, that a devisee is not a competent witness in a suit by another devisee against the heir to establish the sanity of the testator. 1 Phil. Ev. p. 50, c. 0, § 1. That is precisely like the present ease, in principle. If the plaintiff should not succeed in the present suit, his equity of redemption will be entirely defeated. The heirs of William West will thereby indirectly obtain a power to sell and release it; and thus by their own testimony vest in themselves a valuable interest. Nor, as at present advised, do I perceive, in such an event, what remedy the plaintiff could have against them; at least, it. would be attended with serious difficulties and embarrassments.
Another objection is. that the assignment is not sufficient to carry the legal estate in Rhode Island, the execution not being attested by any witness. This objection was taken in West v. Randall [Case No. 17,424], and overruled by the court, it is unnecessary to add any thing to the reasoning there stated on this point, as, upon farther reflection. it has my entire assent. And if the law were otherwise, the answer given to the objection in that case would be decisive here, that the assignment is a sufficient contract to assign the defeasance, and to create a right to compel a legal conveyance of the estate. Under such circumstances, the defendants would be in no jeopardy by receiving payment of the debt due on the mortgage, and surrendering the estate to the. equitable owner, leaving him and the heirs; to contest their ulterior rights.
My opinion on the facts is, that the execution of the assignment is sufficiently proved, and that it is of legal validity to pass the whole title to the equity of redemption at law. ns well as in equity. (The judge here commented on the facts at large.)
As to the allegations in the answer, that Smith’s share was purchased on joint account, and the assignment • of the equity, if made at all, was on joint account, for the. [240]*240benefit of tlie defendant, Jeremiah Phillips, as well as Job Randall, it is sufficient to say, that they are not supported by the proofs. Being independent statements, not responsive to the charges in the bill, the answers are not evidence to establish them.
Upon the whole, my opinion is, that by the assignment, the plaintiff has a right to redeem the estate in the possession of the defendants on payment of the mortgage money, and I shall so decree accordingly. An account must be taken between the parties before a master; and upon his report the cause will stand for a farther decree. Decree accordingly.