
    Seth Taylor and Thaddeus Wilson versus Noah Porter.
    Where a mortgagor assigns the land mortgaged to two or more tenants to hold in common, if they resist the entry of the mortgagee, or drive him to an action to foreclose, each assignee is to be considered as a deforciant of the whole.
    If two distinct closes are included in a mortgage, and the mortgagor convey the closes in fee to different persons, by whom they are held in severalty the mortgagee must have two several writs of 'entry to foreclose the morí gage.
    
      But, in such case, the mortgagee shall have judgment on each writ, unless the whole mortgage money be paid.
    If either grantee shall pay the whole money, the mortgage is discharged as to the others, who shall be holden to a reasonable contribution to him who so pays.
    This was a special writ of entry sw disseisin, brought to foreclose a mortgage, and was submitted to the determination of the Court on the following facts agreed by the parties: —
    On the first day of April, 1805, Uriah Cotting and others were seised in fee of the demanded premises, and on that day conveyed the same to the demandants, who on the same day conveyed the same in fee and in mortgage to the said Cotting and others, to secure the payment of three several promissory notes given for the purchase money, viz. one note for 690 dollars, and two notes for 1035 dollars each. On the second day of the same April, the demandants executed a deed of bargain and sale of the same premises to Artemas Newhall and Leavitt Lincoln, who on the same day executed to the demandants a deed of mortgage of the premises, conditioned to save the demandants harmless from the notes and mortgage which they had given to Cotting and others. On the twenty-seventh of March, 1806, Leavitt Lincoln conveyed one undivided moiety of the premises to Porter, the tenant, who undertook to discharge and pay one half of the money due [ * 356 ] to Cotting and others. The tenant * has paid all the money due to Cotting and others, excepting 380 dollars, and excepting also one year’s interest on one of the notes for 1035 dollars, amounting together to 442 dollars 10 cents. The other undivided moiety of the premises was conveyed by Artemas New-hall to Robbins and Inman, who undertook to pay one half part of the money due on said notes to Cotting and others. Cotting having become proprietor of the whole debt due upon said first mortgage by releases from his partners, on the 15th of October, 1807, conveyed to the tenant, for his account and risk, the two notes of 1035 dollars, deducting the 442 dollars 10 cents, paid as above mentioned. At the time when he conveyed said notes to Porter, the tenant, the said Cotting held said mortgage deed; and afterwards assigned it to Chelly and Martin by Porter’s direction.
    
      Taylor and Wilson now demand the w'hole of the mortgaged prem ises of Porter, who never had any title or claim to more than one undivided moiety, and who never was in possession, except as tenant in common with some other person or persons.
    The demandants found their claim upon the aforesaid payment of 442 dollars 10 cents. The tenant claims to hold one undivided moiety of the demanded premises under said Lincoln. And it was agreed by the parties that if the Court should be of opinion that the demandants can maintain this action under the above circum stances, and that they are entitled to possession of the demanded premises, as mortgagees, for condition broken, judgment should be rendered, as in cases of mortgage, for the above sum of 442 dollars 10 cents, with interest; otherwise that the demandants should become nonsuit, and the tenant recover his costs.
   No argument was had, and the opinion of the Court was delivered by

Parsons, C. J.

(after summarily stating the facts.) On these facts we are satisfied that the demandants are * en- [ * 357 ] titled to sue upon the mortgage, upon which they have declared, as a security for the 442 dollars 10 cents paid by them on the said notes, they having been damnified in that sum by paying it to Cotting.

But three questions arise. Shall they have the conditional judgment to have seisin of the lands mortgaged, unless 442 dollars 10 cents are paid by the tenant? Or shall they have a conditional judgment to recover seisin of a moiety, unless the tenant will pay a moiety of that sum ? Or shall they have any judgment, as they have not sued all the tenants in common ?

As the title of the demandants under the mortgage is to a sole seisin, it seems very clear that if they can have judgment on this writ, that judgment must be for sole seisin, unless the money necessary to indemnify them be paid; otherwise the mortgagee might have his sole tenancy changed into a tenancy in common. And it is our opinion, that the demandants in this case are entitled to the conditional judgment against the tenant, who must be considered as a deforciant, and, therefore, as to them be taken to be a tenant, against whom the whole freehold can be demanded; although as to others he may be tenant in common of a moiety. For in a writ of entry to foreclose a mortgage, the demandants count against the assignee of the mortgagor as the immediate wrong-doer, and not as having entered by the mortgagor; because the assignee must hold subject to the mortgage, has a right to redeem, and his title is lawful against all but the mortgagee, or him who claims under him. But if the mortgagor shall assign to more than one as tenants in common, yet as to the mortgagee, when they resist his entry, or drive him to an action to foreclose, each assignee is to be considered as a deforciant of the whole.

If two distinct closes are included in the same mortgage, and the mortgagor convey the closes in fee to different persons, * by whom they are held in severalty, the mortgagee to [ * 358 ] foreclose must have two several writs of entry; because each grantee under the mortgagor holds but a part in severalty, of which he is a several deforciant. But in such a case the mortgagee , shall have judgment on each writ, unless the mortgage money be paid; because each close is liable for all the money due on the mortgage. And if either grantee shall pay the money, the mortgage is discharged as to the other. And when there are two or more grantees under the mortgagor, whether severally or in com- . mon, if either pay off the mortgage, the others shall be holden to a reasonable contribution.

Bigelow for the demandants.

Sullivan for the tenant.

Let the tenant be called, and judgment be rendered for the demandants to have seisin, unless 442 dollars 10 cents, with the interest, be paid within two months.  