delivered the opinion of the Court.

Whether the wife can be assignee of a mortgage, made by her husband, in a manner which would secure the estate to her is very questionable. If the debt is paid before condition broken, the interest of the mortgagee, and of those claiming under him, ceases both at law and in equity. And if paid after condition broken, the mortgagee can maintain no action to obtain possession of the land. From the nature of the relation between husband and wife, he cannot be her debtor. It would seem then to result, that a demand against him assigned to her, is thereby extinguished. At any rate, his rights cannot be impaired or prejudiced, by such assignment. He may relieve his estate from incumbrance, by paying the amount for which it may have been mortgaged. If the mortgage is assigned to the wife, to whom shall a tender be made, and against whom may a bill in equity be brought ? It is unnecessary however to consider the legal effect of an assignment to the wife, as the deed to the tenant is very clearly fraudulent and void, as against the demandant, a prior creditor 5 being made to defeat creditors, with the knowledge and consent of all the parties thereto.

But although, the tenant has no title to the land, the demandant *261must prove the seisin, upon which he has counted. It does not ap - pear that the mortgagee ever entered for condition broken. As against all other persons, Wentworth, the mortgagor, and those claiming under him, are the owners of the land, and have a seisin therein ; which they may convey; or upon which they may maintain a writ of entry, against a stranger. Willington v. Gale. 7 Mass. 138; Porter v. Millet, 9 Mass. 101. The demandant, having recovered a judgment against Wentworth, the mortgagor, extended his execution on the land as his property, without regarding the incumbrance. ' By this extent, the seisin and title of Wentworth was, by operation of law, transferred to the demandant. This is sufficient to enable him to maintain the action against the tenant, who has made no valid title under the mortgagee, if the mortgage has not been extinguished. But the case finds that the mortgage has been fully paid and satisfied, by the funds of the mortgagor. Wc are all of opinion that the demandant is entitled to recover.

Tenant defaulted.