The opinion of the Court was delivered by

The facts of this case, necessary to a decision of it, and in chronological order, are these. On the 26th of March, 1818, Josiah Stebbins and David Otis, being owners in common of the lands described in the petition, by purchase from one Levi B. Erskine, conveyed the same to N. Moody. The deed was registered April 22d, 1823. On the same 26th of March, 1818, the said Moody conveyed the same to Stebbins and Otis in mortgage, to secure payment of the purchase money. The mortgage deed was registered May 6th, 1823. On the 22d of April, 1823, Moody, by deed of quit-claim, with special warranty, conveyed the same premises to Young, who caused his deed to be registered on the 25th of the same April. Young, on the 30th of October, 1829, conveyed the same to Erskine, the respondent. J. Stebbins having deceased, his only child and heir, Laura A. Stebbins, on the 20th of April, 1830, by quit-claim deed, conveyed one undivided moiety of the premises *309to the said Moody, who on the same day conveyed the same to White, the petitioner. The petitioner offered to prove that, the conveyances from Moody to Young and from Young to the respondent were made without consideration, and that all the three knew of the existence of the mortgage deed, though the same was not registered until fourteen days after Moody’s deed to Young was executed, and that therefore the same was fraudulent as against the mortgage. For the purposes of this decision w7e are to consider the above facts, which the petitioner offered to prove, in the same manner as though they had been proved. On this ground, it is clear, that the conveyance so made to Young, did not, and could not prejudice the title of Stebbins and Otis as mortgagees; but still, Moody had a legal right to convey what title he had, that is, his equity in redemption : and his knowledge of the mortgage could not prevent the operation of his deed, nor could Young’s knowledge have that effect. Both those conveyances, therefore, were operative and conveyed to the respondent, Moody’s equity of redemption. But the petitioner contends, that the deed from Laura A. Stebbins to Moody, and Moody’s deed to him, of April 20th, 1830, have operated to convey to the petitioner the fee simple of the undivided moiety of the premises, which is the portion in controversy. It is very clear that the deed of Laura A. Stebbins did not operate as an assignment of the mortgage ; for as heir she had no authority to assign it. Smith & al. v. Dyer, 16 Mass. 18. — If it had any operation, it wras to extinguish the mortgage, and relieve the moiety from the lien upon it, which had been created by the moitgage. On this conveyance the petitioner relies. Now, admitting that the fee simple estate in the moiety, was thus reconveyed to Moody, the legal effect was, that the title instantly enured to the benefit of Young, under whom the respondent, claims, as the presiding Judge decided ; because Moody in his deed to Young, covenanted to warrant and defend the premises to him, his heirs and assigns, against the claims of all persons claiming under him or his heirs. The mortgage deed was made prior to the conveyance to Young; and the claim of the petitioner is under the heir of Stebbins, one of the mortgagees. According to the authorities cited by the counsel *310for the respondent, and well settled principles of estoppel, the title derived from Laura A. Stebbins and conveyed to Moody by her, enured to Young, and through him to the respondent. But if nothing passed by her deed to Moody, what could have passed by his deed to the petitioner in 1830, when all the right which he had in 1823, was conveyed to Young and by Young to the respondent, both of which deeds were on record on the 3d of November, 1829. In any view of the cause, we do not perceive any principles on which the petitioner can succeed. Accordingly, the nonsuit is confirmed.

Judgment for defendant.