and defend the same premises to the said Knight and Sprague, their heirs and assigns forever, against the lawful claims and demands of all persons." The condition was the payment of a promissory note of $1000 by the grantor on July 1, 1872. Benjamin Thayer signed the deed, and his name appeared in the testimonium clause in token of his assent, but did not appear as grantor. Sprague's interest has since been assigned to the demandant.

On May 2, 1864, Benjamin E. Thayer conveyed the land, by a mortgage deed with power of sale, to Ebenezer Ferry. On June 19, 1869, Benjamin conveyed the land to one Clark, who, on July 12 following, conveyed it to Mary G. Thayer. On August 6, 1874, Frances A. White, who is now living, and who then, and at the time of the mortgage to Ferry, had a valid life estate in the land, conveyed the same to Mary G. Thayer. On August 24, 1874, Ferry, for breach of condition in the mortgage to him, sold the land, under the power, to William G. Bassett, and executed a deed thereof to him; but neither Bassett nor any one claiming under him, has ever been in actual possession of the land. On January 1, 1875, Mary G. Thayer conveyed the premises, including the life estate, to Lucy A. Knight, as whose tenant, Benjamin is in possession. All the above men. tioned deeds were recorded at or about their dates.

"Any fact or deed recited, which would not be admissible against objection, is not to be taken as admitted. When any party would be bound by the rules of law, by estoppel or rebutter, the same are to apply in the determination of this case." Such judgment is to be entered as the court shall order.

W. G. Bassett, for the demandant.

G. D. Robinson & L. E. Hitchcock, for Lucy A. Knight. GRAY, C. J. By the common law of Massachusetts, the warranty deed of a married woman, though executed in such form as to convey her title did not operate against her by way of covenant or of estoppel; because she was incapable of binding herself by covenant of warranty or by agreement to convey her real estate. Wight v. Shaw, 5 Cush. 56. Lowell v. Daniels, 2 Gray, 161. McGregor v. Wait, 10 Gray, 72.

But by the Gen. Sts. c. 108, § 3, every married woman is made capable of bargaining, selling and conveying her separate

real and personal property, entering into any contracts in reference to the same, and suing and being sued in all matters relating thereto, in the same manner as if she were sole, with no other restriction than being required to obtain the assent of her husband, or the approval of a judge of this or of the Superior ol Probate Court, to any conveyance of shares in a corporation, or of real property, except a lease for not more than a year. Any conveyance or contract executed by a married woman in accordance with the power thus conferred is binding upon and may be enforced against her to the same extent as if she were unmarried. Baker v. Hathaway, 5 Allen, 103. Basford v. Pearson, 7 Allen, 504. Faucett v. Currier, 109 Mass. 79. Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241. Richmond v. Tibbles, 26 Iowa, 474.

It has been the settled law of this Commonwealth for nearly forty years, that, under a deed with covenants of warranty from one capable of executing it, a title afterwards acquired by the grantor enures by way of estoppel to the grantee, not only as against the grantor, but also as against one holding by descent or grant from him after acquiring the new title. Somes v. Skinner, 3 Pick. 52. White v. Patten, 24 Pick. 324. Russ v. Alpaugh, 118 Mass. 369, 376. We are aware that this rule, especially as applied to subsequent grantees, while followed in some states, has been criticised in others. See Rawle on Covenants, (4th ed.) 427 & seq. But it has been too long established and acted on in Massachusetts to be changed, except by legislation.

The necessary conclusion is that, under the mortgage with full covenants of warranty, executed by Mrs. Thayer with her hus. band's assent, the demandant is entitled to the demanded prem ises as against her and her husband, and also as against Mrs. Knight, to the extent of the interest since acquired by Mrs. Thayer and conveyed by her to Mrs. Knight.

Judgment affirmed.

WALTER W. KENWORTHY & others vs. SARAH A. SAWYER

Hampshire. Sept. 17, 1877.-July 18, 1878.

Under the St. of 1874, c. 184, a promissory note, made by a partnership, and in dorsed by the wife of one partner for the accommodation of the firm, binds her. An instrument under seal, given by the indorsee of a note to one of the joint makers, whereby the indorsee acknowledges the receipt of part of the amount of the note, covenants not to sue the maker to whom it is given, and reserves all rights agains other parties to the note, does not discharge such parties.

CONTRACT upon a promissory note for $800, dated December 30, 1875, signed by Byron Smith and M. W. Sawyer, payable to the order of the defendant, and by her indorsed in blank. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts in substance as follows:

The makers of the note declared on were, at the time, engaged as copartners in the business of buying and selling cattle and swine. The defendant, the wife of one of the makers, indorsed the note, for the accommodation of the firm, to raise money to be used in their business. Demand was made on the makers at the maturity of the note, and notice of the non-payment duly given to the defendant.

On March 20, 1876, after the bringing of this action, Smith, one of the makers, paid the plaintiffs, by J. C. Hammond, his trustee, $360, on account of the note, and took from the plaintiffs the following receipt, signed and sealed by them: "In consideration of the sum of three hundred and sixty dollars from J. C. Hammond, trustee, from funds raised by sales of property of B. Smith and release of dower rights, we hereby covenant with J. C. Hammond, Tr. and with Byron Smith, that we wil! never sue for, enforce collection, or in any way or manner de mand or enforce collection of the balance of said Smith's indebt edness to us. Reserving nevertheless to ourselves all rights as to other parties, whether indorser for or joint promisor with said Smith."

R. O. Dwight, for the plaintiffs.

A. A. Tyler, for the defendant.

GRAY, C. J. By the St. of 1874, c. 184, a married woman "may make contracts, oral and written, sealed and unsealed, in

the same manner as if she were sole," and "

may sue and be sued in the same manner and to the same extent as if she were sole" with this restriction only, that nothing in this act contained shall authorize a married woman to make contracts with her husband, or authorize suits between husband and wife.

This statute does not, like the Gen. Sts. c. 108, § 3, restrict the capacity of a married woman to make contracts, and to sus and be sued, to matters in reference to her separate property, business or earnings, but enables her to make and to be sued upon contracts of every kind with any one but her husband, as if she were unmarried. Major v. Holmes, 124 Mass. 108.

A promissory note, like any other contract, between husband and wife, or between a wife and a partnership of which her husband is a member, is void as between the original parties. Jackson v. Parks, 10 Cush. 550. Lord v. Parker, 3 Allen, 127. Edwards v. Stevens, 3 Allen, 315. A promissory note, therefore, made by a husband, or by a partnership of which he is a member, to his wife, or by a wife to her husband, will not sustain an action against the maker, either by the payee or by an indorsee. Ingham v. White, 4 Allen, 412. Roby v. Phelon, 118 Mass. 541.

But an indorser, when sued upon the contract between him and his indorsee, is not at liberty to deny the validity of the original note, or the capacity of the maker, for the purpose of defeating his own liability. Burrill v. Smith, 7 Pick. 291, 295. State Bank v. Fearing, 16 Pick. 533. Prescott Bank v. Caverly, 7 Gray, 217. Erwin v. Downs, 15 N. Y. 575. As Lord Hardwicke long ago said, "Though note given by a wife to a husband is void, yet if it is indorsed over by the husband, as between him and the indorsee it is certainly good." Haly v. Lane, 2 Atk. 181. Since the St. of 1874 took effect, a promissory note made by a married woman to her husband, and indorsed by him, is governed by the same rules. And see Knight v. Thayer, ante, 25.

The consideration moving from the party who takes the note with the signatures of the maker and of the indorser is sufficient to support the promise of the latter, and the fact that the inJorsement is for the accommodation of the maker affords no de fence to the indorser. Violett v. Patton, 5 Cranch, 142. Yeaton

v. Bank of Alexandria, 5 Cranch, 49, 53. Brown v. Mott, 7 Johns. 361.

The agreement made by the plaintiffs with one of the inakers, upon receiving payment of part of the note, did not discharge the indorser; because it was not a technical release, but a mere covenant not to sue; and because it expressly reserved all rights against the indorser and the joint promisor. Perkins v. Gilman, 8 Pick. 229. Sohier v. Loring, 6 Cush. 537.

It follows that the defendant, though a married woman, yet, having capacity under the St. of 1874 to make the contract with the plaintiffs upon which this action is brought, is liable to them for that part of the note which has not been paid.

Judgment for the plaintiffs accordingly.

SARAH G. NEWTON vs. LOVELL BAKER & another.

Worcester. Jan. 2. —July 17, 1878. AMES & LORD, JJ., absent.

A bill in equity to redeem a mortgage alleged that the mortgage and the note secured by it were given without consideration for the accommodation of the mortgagee, by whose false and fraudulent representations they were obtained; and that an assignee of the note and mortgage took them after the maturity of the note in trust for the mortgagee, and under such circumstances as to be affected with all the equities between the original parties. At the hearing before a master, the mortgagor testified that the mortgage was given, not to represent any debt, but only to help the mortgagee to raise money by depositing it as collateral security, while the mortgagee testified that the mortgage was not given him to raise money, but represented the debt due him, which was then settled between them. There was also evidence that, at the time of the assignment, the mortgagor consented that the assignee, who took the note, which was payable on demand, unindorsed, by an assignment without recourse, six months after date, might hold the mortgage instead of the mortgagee. The master found that, although the note was made at the request of the mortgagee and for his accommodation, upon his representation that he could obtain money upon it by depositing it as collateral security, yet that the real purpose of the mortgagee in taking it was to obtain security for the debt already due him; that the mortgagor did not know the amount then due from him, and no settlement was made between them, and the note was not given for any ascertained debt; that the actual debt was much less than the mortgage note at its date; and reported the amount due with all the evidence. A decree was entered in accordance with the master's report. Held, on appeal therefrom, that the decree must be affirmed.