#### * Stephen Perkins and Another *versus*John Pitts.

An executor discharged an execution issued on a judgment recovered by his testator upon a bond for securing the payment of which certain lands had been mortgaged by"the judgment debtor. At the same time, the judgment debtor assigned all his right in the lands by him mortgaged to A, who immediately assigned the same to the executor. It was holden, that the receipt upon the execution was not conclusive evidence of a discharge of the mortgage, as a release of the judgment might have been; but that it was competent to the executor to explain the transaction, and to show the nature of the satisfaction received, and the occasion and considerations on which it was acknowledged; and that it was to be presumed that the confirmation of the executor’s title under the mortgage was the satisfaction he received in discharge of the execution.

Covenant broken, in which the plaintiffs declare upon a deed duly executed by the defendant on the 20th of July, 1801, whereby, for the consideration of 300 dollars, he bargained, sold, and conveyed to the plaintiffs a small parcel of land in *Biddeford;*and wherein he covenanted with the plaintiffs, that, at the time of the execution of the deed, he was seised in fee of the granted premises, had good fight to sell and convey the same, and that he would' warrant and defend the same to the plaintiffs against the lawful claims of all persons. The plaintiffs then allege that the defendant was not so seised, &c., had not good r’ght to sell, &c., and had not warranted the same to the plaintiffs: but that, at the time of the *121execution of said deed, one *Aaron Porter*was seised of the same premises by elder and better title, and afterwards, being so seised, commenced an action against one *Charity Perkins,*the tenant at will of *Mark Tucker,*to whom the plaintiffs had conveyed the premises aforesaid with warranty, by deed dated the 29th of June, 1803, in which said action the said *Mark*was made a defendant with the said *Charity;*and that in said action the said *Aaron*recovered judgment against the said *Charity*and *Mark*for possession of said premises, at the Supreme Judicial Court, May term, 1809, and was put into possesion of the same by writ of execution on the 16th of June, 1809.

The defendant pleaded two several pleas in bar: —

1. That he was seised in fee of the premises, as was alleged in his deed; on which plea issue was joined.

2. That said *Aaron Porter*was not seised of the premises by elder and better title, as the plaintiffs allege; and issue was also joined on this plea.

These issues were tried before *Thatcher,*J., October term, 1812, at *Alfred,*in this county.

* At the trial it was admitted that the judgment, re- [ * 126 ] covered by the said *Aaron Porter*against the said *Charity Perkins*and *Mark Tucker,*was rendered upon an agreed statement of facts made between the parties to that suit, without the privity or consent of the said *Pitts.*

To prove the defendant’s seisin at the time of his deed to the plaintiffs, he read a deed from *John Tyng*to *Ezekiel Bradstreet*and *Benjamin Nason,*Jun., dated July 5, 1783, conveying to said *Bradstreet*and *Nason*a large tract of land in said *Biddeford,*of which the premises sold by the defendant to the plaintiffs was a part; also a deed from said *Bradstreet*and *Nason*to said *Tyng*dated July 7, 1783, conveying the same premises to the said *Tyng*in mortgage, to secure the payment of £2100 to said *Tyng,*with interest, within seven years from the date, according to the condition of a bond by them given to said *Tyng*of the same date ; also a deed of release from said *Bradstreet*to said *Nason,*bearing date February 8, 1785, whereby said *Bradstreet*released to said *Nason*all his right to the tract of land so mortgaged as aforesaid ; also a deed from said *Nason*to *James Sullivan,*dated August 1.4, 1800, conveying to said *Sullivan*all his, the said *Nason’s,*right to the premises mortgaged as aforesaid; also a deed from the said *Sullivan*to said *Pitts,*dated August 15,1800, conveying to said *Pitts*all his, the said *Sullivan’s*right, to the same premises; also an execution, dated November 21, 1796, duly issued upon a judgment recovered by the said *Tyng*in his lifetime, on the bond aforesaid, against the said *N'.son;*also a discharge on said execution, dated August 15,1800, *122signed by the said *Pitts,*whereby he, as executor of the said *Tyng’s*last will, and in that capacity, acknowledged full satisfaction of the contents of the said execution.

The plaintiffs then read to the jury a deed from said *Bradstreet*to *Jeremiah Allen,*dated August 28, 1783, conveying to the said *Allen*the land described in the defendant’s deed to the [ * 127 ] plaintiffs; immediately on the execution * of which deed the said *Allen*entered upon the land so conveyed to him ; also a deed from said *Allen*to said *Porter*of the same land, dated January 15, 1788. All the deeds before mentioned appear to have been recorded soon after their respective dates.

It appeared, by the testimony of the said *Aaron Porter,*who *was'*admitted as a witness for the plaintiffs, although objected to, that *Bradstreet*and *Nason*had made an agreement with said *Tyng*for the *Allen*farm, so called, described in said *Tyng’s*deed of July 5, 1783, and had entered into possession of it the preceding spring, and possessed it in severalty ; that, in two or three days from the date of *Tyng’s*said deed to *Bradstreet*and *Nason,*they came to a division of the land so purchased by them, as they had before possessed it; that a deed of division was made by them and duly executed, and was then delivered by them to *Nason’s*father, with written directions to keep it for the benefit of the concerned, and not to deliver it up without the consent of both parties; in which deed *Bradstreet*released to" *Nason*all his right and estate in and to the premises south-west of the town road and the mills; and *Nason*released to *Bradstreet*all his right and estate in and to the premises north-east of said road. About two years afterwards, the said *Bradstreet*failed in business, and the witness applied to the father of *Nason*to procure him to record the said division deed ; but he could not find the same, though he searched for it. It further appeared, from the testimony of the witness, that, by the terms of the said division deed, the lands conveyed by the defendant to the plaintiffs were, among other parts of the mortgaged land, assigned and released to *Bradstreet,*and the residue to *Nason;*and that the parties possessed according to the said division; that the witness entered under his said deed from *Allen,*and continued in possession of the lands conveyed to him by the said deed until some time be fore the execution of the deed declared on in this action; when the plaintiffs disseised him, and they continued and were in [ * 128 ] possession of * the lands in said deed mentioned at the time when the defendant conveyed the same to them, as is alleged in the declaration.

A verdict was taken for the plaintiffs, for the sum of 500 dollars, being the amount of the consideration expressed in the deed de*123dared on, and interest thereon to the time of the trial. And if the Court should be of opinion that the plaintiffs were entitled by law to maintain their action upon the facts reported, and that the said facts were proved by legal evidence, judgment was to be rendered on the verdict; otherwise the verdict was to be set aside, and a new trial granted.

The cause was argued, at the last May term, by *Emt'-y*for the plaintiffs, and *Mellen*for the defendant; and being continued for advisement, the opinion of the Court was delivered at this term by

Sewall, C. J.

In this action of covenant broken, a verdict has been taken for the plaintiffs, subject to the opinion of the Court upon the questions made and reserved at the trial, as to the competency of the evidence, and the legal result of the facts proved. These questions are to be examined, in order to determine whether the defendant is or is not liable; and as the determination shall be, either judgment will be rendered on the verdict, or the verdict will be set aside, and a new trial is then to be granted, on the motion of the defendant.

The defendant is charged upon certain alleged covenants of seisin and title, contained in a deed and conveyance, made by him to the plaintiffs, of a certain tract of land in *Biddeford,*dated July 20, 1801. The plaintiffs negative the alleged covenants, and aver particularly, that one *Aaron Porter,*at the time of the execution of the said conveyance, was seised, by an elder and better title, of the premises which the defendant then undertook to convey; and, further, that afterwards the grantee of the plaintiffs, one *Mark Tucker,*to whom they had conveyed the same premises, with general covenants of title and warranty, by deed dated * June 29, 1803, was evicted by a judgment recovered [ * 129 ] by the said *Aaron Porter*in this Court, May term, 1809.

The defendant pleaded, first, a seisin in fee according to his covenants ; and, secondly, he negatives the seisin alleged of *A. Porter*by an elder and better title. The verdict was taken, upon the issues joined upon these pleas, for the plaintiffs.

As an eviction upon an elder and better title is specially alleged, the issue upon the seisin of the defendant would be considered immaterial, if that had been found for him, and the other issue for the plaintiffs; and, in effect, there is but one issue between the parties, which is, whether *A. Porter*had the legal seisin of the premises by an elder and better title than the defendant’s at the time of his conveyance to the plaintiffs. I shall therefore examine, in the first place, the supposed seisin and title of *A. Porter,*as it appears upon the evidence reported.

*Porter’s title*is derived, then, from a deed made by *Ezekiel Brad**124*street*to *Jeremiah Allen,*dated August 28, 1783 ; under which the said *Allen*entered, and afterwards, by a deed dated January 15. 1788, he conveyed the premises in question to *A. Porter.*Thus the title which *Bradstreet*had in August, 1783, is derived to *Porter;*but what was that title at the time of *Bradstreet’s*deed to *Allen 1*

From the evidence adduced for the defendant, *Bradstreet,*with his partner, *Benjamin Nason,*had then bargained with *John Tyng*for a large tract of land, of which the premises in question were a part. This bargain had been so far executed, as that *Tyng*had conveyed the bargained premises to *Bradstreet*and *Nason,*and had taken back from them a mortgage in fee of the same premises, to secure the payment of what may be presumed to be the purchase money, or a part of it, namely, the sum of £2100, with interest, payable in seven years, according to the condition of a bond of the same date. *Tyng’s*conveyance to *B.*and *N.*was dated July 5, 1783, and their mortgage to him the 7th of the same month. It is said that all the deeds mentioned [ * 130 ] were duly * registered soon after the execution of them.

And we must understand, therefore, as it respects the title of *John Tyng,*and of all persons deriving their title under the mortgage to him, that, so long as that was a subsisting mortgage, *Bradstreet*and *Nason,*and all persons deriving title from them, with notice of the mortgage, were but tenants in mortgage. The supposed partition between them, their separate conveyances to *Porter*and others, in short, all their dealings and transactions respecting the land conveyed by *John Tyng,*and mortgaged back to him to secure the purchase money, were transfers or assignmepts under the condition annexed to the mortgage, or of an equity of redemption, as it proved to be; for there is no pretence of a performance of the condition according to the terms of it.

The constructive possession of the mortgagee is important to the security of his title. It has been, therefore, long settled, by decisions of the highest authority, that the possession of the mortgagor is the possession of the mortgagee ; that he is not, but at his election, and for the sake of his remedy, liable to be disseised by any act of the mortgagor remaining, in possession ; and this latter can make no lease or contract respecting the mortgaged premises effectual to bind the mortgagee, or prejudicial to his title. (1)

Now, it appears, further, from the report of the evidence in the case at bar, that the defendant, in the year 1801, when he conveyed to the plaintiffs, held, or claimed to hold, the premises con *125veyed to them under the mortgage made thereof, with other lands, by *Bradstreet*and *Nason*to *John Tyng.*The defendant is executor of the last will of *John Tyng,*and at his death the mortgage was subsisting. It had not been discharged, nor had the money secured by it been paid. There is no pretence that the mortgage has ever been released, or that there has been a reconveyance on the part of *John Tyng,*his heirs or representatives.

There is, however, an attempt to defeat or avoid the title under the mortgage, by evidence of payment; and the evidence adduced in proof of this requires to be more closely * ex- [ * 131 ] amined than it has hitherto been, both as to the competency of it in this inquiry, and as to the effects resulting from the facts proved, supposing the evidence competent.

The mortgagee, before his death, recovered judgment against *Na-son,*one of the parties to the bond and mortgage, for the sum of money then due upon the bond. This judgment was recovered in 1795, or before that time; for the evidence is, that the defendant, on the 15th of August, 1800, after the death of *John Tyng,*was in possession of an execution, dated in 1796, which had been issued upon the judgment recovered by the testator in his lifetime. Upon this execution the defendant, as executor of *John 'Tyng,*then gave a receipt, and acknowledged full satisfaction of the contents of the execution. Did this receipt defeat the mortgage, and operate as a reconveyance or release of the mortgaged premises ? That it was not understood or intended to have that operation, by the parties concerned in the transaction, by which that judgment may be presumed to have been satisfied, seems to be very clear from the other facts stated, as happening on the same day and the day before. *(a)**Nason,*the judgment debtor, who, in 1785, had obtained a release from *Bradstreet*of all his right and interest in the premises conveyed by them to *Tyng*in mortgage, on the 14th of August, 1800, conveyed to *James Sullivan*in fee all his, *Nason’s,*right to the premises mortgaged as aforesaid; and on the next day, the day on which the receipt upon the execution is dated, *Sullivan*conveyed the same right and interest to the defendant.

*126It may be fairly presumed, upon these facts'taken in connection, that the payment of the judgment, the only consideration of the receipt upon the execution, was an intended confirmation of the title under the mortgage. Any other supposition, or at least any supposition of the payment of money, involves this absurdity — that either the mortgagor, or the assignee of the equity of redemption, released all their interest and title, at the very moment when the money to redeem the mortgaged premises was paid to [ * 132 ] the same person * to whom the release was made. It is not easy to conceive that Mr. *Pitts*was, in that transaction, or in the intentions of any of the parties concerned, a purchaser for himself, without any reliance upon the title holden under the mortgage. A release was a suitable form of conveyance to confirm that title, but not likely to be accepted as an original conveyance to a purchaser having no other assurance of the premises intended to be conveyed.

It may be conjectured, indeed, that this release of the equity of redemption was obtained for the defendant, with a view to enlarge his authority, and to enable him to sell and dispose of the mortgaged premises, without the aid of a license of court; and notwithstanding the restrictions contemplated by the statute, (2) to authorize executors and administrators to make sale of real estate mortgaged to their testators, &c., whether the release had or had not this operation, is in this inquiry quite immaterial. As executor, and under the provisions of the statute, the legal estate in the mortgaged premises vested in the defendant, upon the death of his testator, as assets, and according to his trust; and his power to sell was not the question in the case of *Porter*vs. *Tucker,*(3) the grantee Of *Perkins;*nor is it in this case. That action is to be viewed as an attempt, on the part of *Aaron Porter,*to contravene and defeat the intentions of the parties to the mortgage in the adjustment made between them, upon which a discharge of the personal liability of one of the mortgagors was obtained. The attempt succeeded by the consent of the parties in that action. The present defendant was not made a party, and he is not concluded by that judgment; and his title, compared with *A. Porter’s,*is still open to be examined. And if the decision in this action should be found to militate with the decision in the action to which the present plaintiffs became parties in the defence, it is not a difference of opinion as to legal principles, but the consequence of a more complete disclosure and examination of facts essential to the title of the defendant in this action.

*127* In the view we have taken of the case at bar, it is [ * 133 ] not important to the decision, to have it established beyond controversy, that the equity of redemption had been effectually assigned or released to *Pitts*previously to his conveyance to the plaintiffs. If the mortgage to *Tyng,*then vested in his executor, *Pitts,*was a subsisting mortgage, he conveyed to the plaintiffs a sufficient title against *Porter,*or any person claiming under *Bradstreet*by conveyances subsequent to the registry of that mortgage. We may, however, observe, upon the authority of another decision in this Court, (4) where a part of the same title was brought in question, that *Bradstreet’s*deed to *Allen,*relied on in the case at bar, as also in the case of *Porter*vs. *Hill,*had no operation, unless there is in the case at bar competent evidence of a partition by deed between *Bradstreet*and *Nason,*previous to the conveyance to *Allen.*

If *Porter*is admissible as a competent witness, not liable to an objection of interest in this suit, yet his testimony is plainly incompetent to prove a partition by deed. The only reasonable presumption that can be drawn from the facts testified by him is, that a deed, intended as a partition, was executed by *Bradstreet*and *Nason*subsequent to their mortgage to *Tyng;*that it was placed as an escrow in the hands of *Nason’s*father, to have effect when the parties to it should consent; and that this intention was mutually relinquished, and the deed cancelled, when *Bradstreet*afterwards relinquished his concern in the bargain with *Tyng,*and released to *Nason*all interest and title in the mortgaged premises. It was subsequent to all this that *Porter*inquired for the partition deed, and was told that it was not to be found.

But if we suppose a partition and conveyances under it, whatever effect these might have among the parties themselves, or against third persons, against tile mortgagee and his assigns these transactions had no effect to impair his title. The possession of the mortgagors, and of all claiming under them or either of them, was the possession of the * mortgagee and of his assigns. [ * 134 ] And the only question now to be decided is, whether the receipt by *Pitts,*the satisfaction acknowledged by him of the judgment against *Nason,*was a discharge of the mortgage.

The practice is, it is said, to admit pleas of payment after the day, as a defence in actions of ejectment, brought by a mortgagee or his assigns, against the mortgagor or any occupant of the mortgaged premises under him. A defence of this kind seems to be equitably implied in the provisions of the statute of 1785, c. 22, *128giving remedies in equity., *(a)***But where the sum due is not ascertained by the contract, where it is a matter of account, where the title of the party undertaking to redeem is the matter in question I am not satisfied that the practice has ever extended, or that it can be reasonably extended, to cases of that description. (5)

But, allowing this advantage, where the mortgagee or his assigns are contending for the possession,.after the mortgage money has been paid, yet, in the case at bar, we must go further to allow it, as evidence, to defeat the title of the mortgagee, in this collateral manner, and where his grantee must be considered as in the actual possession of the mortgaged premises.

The plaintiffs had a sufficient defence against *Porter’s*ejectment upon this ground, if upon no other; but for the admission that the mortgage had been released, and that *Pitts*held under a title depending altogether upon the conveyance to him from *Sullivan.*For it seems to be clearly settled that the remedy of the mortgagor, or of any person claiming under the equity of redemption, against the mortgagee or his assigns, is by a bill in equity only, and that they are not liable in an action of ejectment. (6)

We may, however, go a step farther in the case at bar; and we do it, that we may terminate the controversies that have grown out of the adjustment of this mortgage, and the subsequent disposal of the premises.

If the receipt by Mr. *Pitts*was a matter to be considered in the action of *Porter*vs. *Tucker,*in which the plaintiffs [ * 135 ] * in the present action became parties, and now again as evidence against the title of the defendant under the mortgage, we are clear in the opinion, whether the defence is offered in a court of law or ina chancery jurisdiction, that it is competent for the defendant to explain the receipt; to show the nature of the satisfaction received, and the occasion and considerations on which it was acknowledged. It is not conclusive evidence, as a release of the judgment might have been. And the plain import of the writing is, if there is no evidence to repel this obvious presumption from the connection which the releases by *Nason*and *Sullivan*have with the receipt upon the execution, that the confirmation of the title under the mortgage was the satisfaction which *Pitts*received in discharge of the execution.

And upon the whole, whether the releases operated to confirm his title or not, if that was the intention of the parties, and the mortgage has. been, in fact, in no other manner satisfied, it' was a *129subsisting mortgage when *Pitts*conveyed to the plaintiffs in the present action; and their title was good and effectual against *Porter,*and any other claiming under *Bradstreet*or *Nason,*by a title commencing after the mortgage and subject to it. *(a)*

If the plaintiffs have, in fact, sustained any damage or loss in consequence of the judgment rendered in the action of *Porter*against their grantee, *Tucker,*and they should fail of an indemnity in consequence of the decision in this action, their indiscretion in defending without the aid of their grantor, and in submitting to a judgment upon an imperfect statement of facts, must be regarded as the cause. There are circumstances in the two cases which too naturally excite a suspicion that the suit heretofore decided against the title of the defendant was not adverse as it appeared. It may have been got up, if I may use the expression, as a prelude to the present action.

The verdict is to be set aside, and a new trial is granted. (b)

(1)

*Cro. Jac.*659. — 1 *D. & E.*378, *Birch*vs. *Wright.*— *Law of Mortgages,*c. 5 p. 47.

(a)

**As to the effect of a payment of the mortgage debt to discharge the mortgage, see *Gray*vs. *Jenks,*3 *Mason,*520.— *Vose*vs. *Hardy, 2 Greenl.*322.— *Inches*vs. *Leonard,*12 *Mass. Rep.*379.— *Hatch*vs. *White,*2 *Gal.*155. — *Jackson*vs. *Randall,*18 *Johns.*7. — *Jackson*vs. *Crafts,*18 *Johns.*114. — *Paxton*vs. *Paul,*3 *Har.*& *M’Hen. 399.—Morgan*vs. *Davis,*2 *H. & M'Hen.*7. — *Denn*vs. *Spinning,*1 *Hals.*471.— *Wentz*vs. *Dehaven,*1 *Ser. & R.*312. — *Maynard*vs. *Hunt,*5 *Pick.*250. — *Wade*vs. *Howard,*6 *Pick. 492.—Hooker*vs. *Olmstead,*6 *Pick.*481. — *Porter*vs. *Perkins,*5 *Mass. Rep.*233. *—Swett*vs. Horn, *Adams,*N. *H. R.*332.— Sed vide *Parsons*vs. *Wells,*17 *Mass. Rep.*419. — *Sage*vs. *Phelps, 2 Day,*151. — *Austin*vs. *Burbank,*2 *Day,*474. — *Faulkner*vs. *Brockenbrough,*4 *Rand,*225. — *Breckenridge*vs. *Brook,*2 *Marsh.*337*—Judah*vs. *Judd,*1 *Con. R.*309.

(2)

*Stat.*1788, c. 51.

(3)

5 *Mass. Rep.*233.

(4)

9 *Mass. Rep.*34, *Porter*vs. *Hill.*

(a)

*Gray*vs. *Jenks,*3 *Mason,*520. — *Vose*vs. *Handy,*2 *Greenl.*322.

(5)

 See act of 7 *G.*3, c. 20, § 3.

(6)

3 *Mass. Rep.*359.-7 *Mass. Rep.*63

(a)

**As to what will amount to an extinguishment or discharge of the mortgage, see *Gibson*vs. *Crehore,*3 *Pick.*475. — 5 *Pick.*146. — *Wade*vs. *Howard & Al*6 *Pick.*492.

(b)

*b)*Vide *Porter*vs. *Hill,*9 *Mass. Rep.*34.