#### Nathaniel Partridge and Susanna his Wife *versus*John Gordon.

Of the cases in which the conditional judgment, as in case of mortgage, is to be entered.

[Where a mortgagee brings his action for possession, and not foreclosure, and counts upon his seisin generally, he is entitled to judgment absolutely against all but the mortgagor, and those lawfully claiming under him, and having a right in equity to redeem; and against them also, unless by plea they set forth their interest, and pray that the conditional judgment may be entered; but a conditional judgment cannot be rendered as to part of the premises mortgaged, and an absolute judgment as to the residue.]

This was a writ of entry, in which the said *Nathaniel*and *Susanna*demand possession of a certain saw-mill, with its privileges, and of several other tracts of land, all lying in *Westbrook,*in this county; counting upon the seisin of one *Joshua Webb,*and a conveyance from him to the said *Susanna,*when sole, and they make a *jirofert*of the deed.

In a statement agreed by the parties, the deed is recited, and it appears to have been a mortgage, with a condition that the grantor *433should save the grantee harmless and free from certain damages, tc which she 'might be exposed by his negligence or malconduct; and it was agreed that the condition of the mortgage had been broken before the commencement of this action.

The tenant claimed under certain judgment creditors of the said *Joshua Webb,*who had attached the premises prior to the execution of the said deed, in the actions wherein their judgments were rendered; and afterwards extended their executions thereon within thirty days from the rendition of their respective judgments.

* The demandants’ counsel made sundry exceptions to the extents upon said executions; all of w.hich were overruled by the Court, except as to one which was made upon the saw-mill. The Court, considering that extent void, were about to render judgment, at the last May term, for the demandants, for their possession of the saw-mill with its privileges and appurtenances,— when the counsel for the tenant moved the Court to enter the conditional judgment, as upon' mortgage. This being opposed by the counsel for the demandants, the cause was continued for the consideration of this motion; and at this term the opinion of the Court was delivered by

Parker, C. J.

Judgment for possession absolutely must be entered in this case, notwithstanding the motion on the part of the tenant for the conditional judgment, as in case of mortgage.

Where a mortgagee brings his action for possession, and not for foreclosure, he need not set forth his deed, but may declare upon his seisin generally, and produce his deed in evidence, to prove his seisin. In such case, he is entitled to the absolute judgment against all but the mortgagor, or persons lawfully claiming under him, having the right of equity to redeem; and against them also, unless, by plea, they set forth their interest, and pray that the conditional judgment be entered; and then, if the condition be broken, the Court will enter the conditional judgment. For, as the parties in interest have a right, after forfeiture, to consider the mortgagee as having entered for condition broken, although he does not so declare, and may have their bill in equity to redeem, as settled in the case of *Pomeroy*vs. *Winship,*(1) there is no reason why they may not be saved the expense of another process, if they wish to avail themselves of their right in equity, when the mortgagee shall sue for possession, (a)

But the tenant, in the case before us, has shown no legal privity *434with the mortgagee, or in the estate, and has not acquired any right to redeem — the levy under which he * claims having been declared to be void. He therefore cannot prevail in this motion.

*Fitch*for the demandants.

*Longfellow*for the tenant.

In a subsequent case of *Lewis*vs. *Babb 8f Al.,*decided ai this term, the tenants, by their plea, showed that the demandant’s only title to the premises demanded was under an assignment of a mortgage ; and that they were assignees of a second mortgage of a part of the same tenements ; and they prayed that, for that part, the demandant should take judgment conditionally, as in case of a mortgage.

*But the Court*said this could not be done, for it would require judgment for possession absolutely of part of the land demanded, and conditionally of the residue; and they observed that, in such a case, it was better for the tenants to seek their remedy by bill in equity, according to the statute.

(1)

12 *Mass. Rep.*514.

(a)

*Green*vs. Kemp, 13 *Mass. Rep.*515. — *Darling*vs. *Chapman,*14 *Mass. Rep*101.— *Somes*vs. Skinner, 16 *Mass. Rep.*340