
    Jackson, ex dem. Minkler, against Minkler and another.
    NEW YORK,
    Oct. 1813.
    The as-mo"t"ageeain possession of is protected gagejietUougii of hRohown
    THIS was an action of ejectment, tried at the Schenectady c'rcu‘b September, 1812, before Mr. Justice Yates. By the consent rule, the defendants were admitted as landlords in the place of I. Stiles, as to such of the lands as should be proved at the trial 1° be in the possession of Robert Smith. On the trial, the lessor °f the plaintiff proved that he was in possession of the premises in question about 8 years ago, when he moved away, and two of his sons, Hermanns and Samuel, occupied it on shares; and that David Minkler, who afterwards resided on the farm, had said that, the farm belonged to his father, the lessor of the plaintiff. The plaintiff gave in evidence a deed, dated 26th December, 1797, from the late trustees of Schenectady, to the lessor of the plaintiff for 7 acres, bounded on the lands of the lessor.
    The defendants offered in evidence a mortgage, executed by the lessor of the plaintiff, to Judah Burton, dated 11th January, 2798, for the premises in question, except a tract of 7 acres before mentioned, which the defendants’ counsel alleged had been sold by the lessor of the plaintiff to Francis Vedder, and offered to prove the fact by parol, but the proof was rejected. The mortgage had become forfeited by nonpayment of the mortgage money; and a deed had been given by Burton, the mortgagee, dated 22d duly, 1808, to David Minkler, one of the defendants, and Samuel Minkler, purporting to be on a foreclosure of a mortgage, pursuant to the statute. This evidence was overruled by the judge, unless the defendants would also show a regular advertisement and sale of the mortgaged premises, See. pursuant to the statute, which not being done, the evidence was excluded, and a verdict taken for the plaintiff, subject to the opinion of the court, On a case containing the above facts.
   Per Curiam.

The lessor of the plaintiff showed sufficient, in the first instance, to entitle him to recover. The deed fl'oiii the mortgagee was, however, a protection to the defendants, for that part of the premises which it covered; for though no regular foreclosure of the mortgage was proved, yet the assignee of the mortgagee being in possession, way protect his possession by it. This is not the case of a stranger setting up an outstanding mortgage.

The plaintiff is, accordingly, entitled to judgment for the seven acres, purchased in 1797, and no more.

Judgment for the plaintiff.  