
    Catharine Cronin vs. William Hazletine.
    á. second mortgagee of land may maintain an action to foreclose his mortgage against the first mortgagee, who is in possession for the purpose of foreclosure, if the latter is also the owner of the equity of redemption; and under his execution may be put temporarily c possession, without an actual ouster of the first mortgagee.
    One of two executors may assign a mortgage given to his testator. Note*
    
    
      
       A similar decision was made in
      Nathan George vs. Obed Baker,
      a case from Norfolk county, argued in November 1861. The facts are stated in the opinion.
      Chapman, J. This is a writ of entry to foreclose a mortgage made by James B. Wilson to William N. Haskell on the 1st of October 1857, and assigned by Haskell to the demandant on the 22d of the same month. The assignment was confirmed by a quitclaim from Haskell’s assignee in insolvency, dated June 9, 1859.
      The tenant purchased the equity of redemption from Wilson’s administrator, and took a conveyance thereof on the 6th of October 1858. Prior to the date of the demandant’s mortgage, namely, on the 19th of May, 1849, Wilson had mortgaged the premises to Mason, Daniels & Hurd; and still earlier, namely, on the 29th of May 1837, he had mortgaged it to the Inhabitants of Medway. The mortgage to Mason, Daniels & Hurd was assigned to Artemas Brown; and Brown assigned it to the tenant on the 18th of November 1857. Whether anything remained due on this mortgage cannot be determined in the present action. On the 11th of October 1854, the Inhabitants of Medway assigned their mortgage to Lewis Fisher. The form of excecuting the assignment was proper. On the 23d of February 1858, one of the executors of Fisher assigned it to the tenant, there being two executors. One of two executors may make a valid assignment of a mortgage. Bac. Ab. Executors and Administrators D. Com. Dig. Administrator B. 12.
      
        When this action was commenced, the titles stood as follows: The demandant held a third mortgage on the premises; the tenant held two prior mortgages, and also the equity of redeeming the demandant’s mortgage. He had taken possession for the purpose of foreclosing the prior mortgages. In respect to them, this action cannot be maintained. But as to the equity, the action may be maintained for the purpose of foreclosure, as was determined in the case of Cronin v. Hazletine. The presiding judge having ruled otherwise, the entry must be, Exceptions sustained.
      
      
        P. P. Todd, for the demandant.
      
        W. Colburn, for the tenant.
    
   Dewey, J.

This is an action to foreclose a mortgage, brought by a second mortgagee of land against the assignee of the first mortgage, who has entered into possession of the premises to foreclose the same, in the presence of witnesses, as provided in the Rev. Sts. c. 107, § 3, and who continues in possession thereof; the tenant also holding a third mortgage on the premises, and being the absolute owner of the right in equity to redeem the plaintiff’s mortgage.

To the maintenance of this action it is objected that the tenant has the prior and better title, and being in possession under that title, the demandant cannot have a conditional judgment against him for possession under the statute for foreclosure of mortgages. If this were an ordinary writ of entry seeking to establish a paramount title, and to dispossess the tenant of his possession of the premises, the title upon which he relies would constitute a defence to the action. But the present is an action to foreclose a mortgage, and under the well settled law of this commonwealth such action may be maintained, although an intervening title may prevent any continued possession by the mortgagee under his conditional judgment. Thus it lies for a mortgagee of a reversion, during the life of the tenant of the particular estate. Penniman v. Hollis, 13 Mass. 439. It lies by the mortgagee under a second mortgage against the mortgagor, although the premises were subject to a previous mortgage upon which a conditional judgment for foreclosure has been rendered, and the holders of such mortgage have taken" and still hold possession under such judgment. Amidown v. Peck, 11 Met. 469. Those were, however, cases where the suits were brought against the mortgagor, and do not directly present the question that arises here; but the principles stated in them have a strong bearing upon the present case, as they develop the nature of the action, and the power of the court in adapting the judgment to the circumstances of the case, as well as in deciding that to the maintenance of this action it is not necessary to show any right to present possession as against a particular estate, or a previous mortgagee.

The case of Palmer v. Fowley, 5 Gray, 545, is perhaps more analogous to the present. The question there arose upon the effect of an entry by a second mortgagee under Rev. Sts. c. 107, § 2, for the purposes of foreclosure of such mortgage, the first mortgagee being at the time in possession under an entry to foreclose his mortgage, and being also the holder of a third mortgage made by the same mortgagor. It was held that such second mortgagee might enter and take possession for the purposes of foreclosure of his mortgage, notwithstanding the possession by the first mortgagee; and that a foreclosure thus perfected would bar all subsequent mortgages and the equity of redemption, though such mortgages were held by the first mortgagee.

That case only differs from the present, it would seem, in this particular, that it presented a question of the right to foreclose by an entry in the presence of witnesses under the statute. The present raises the question of the right of the second mortgagee to avail himself of the other mode of foreclosure provided by statute — that of foreclosure by an action, and conditional judgment, and an entry under the execution. The rights of the first mortgagee are as much affected in the one case as in the other, and the judgment in the suit for foreclosure can in no way operate to divest him of his legal rights under bis first mortgage.

In the present case, we are not' called upon to decide the question whether a suit to foreclose a second mortgage would lie against a party having no other title or estate in the premises than that of first mortgagee. It would seem in such case unreasonable to tax the first mortgagee with costs of a suit by a second mortgage, and we express no opinion upon that matter

R. T. Paine, Jr. for the demandant.

H. Carter, for the tenant.

Here the tenant holds the estate of a third mortgagee, and also the equity of redemption, as well as that of a first mortgagee. Holding these titles, which are subsequent to the de mandant’s mortgage, and the mortgagor having no longer any interest in the estate, the demandant properly brought this action against the tenant to foreclose his mortgage as against the third mortgage and the equity of redemption.

The judgment will therefore be, that the demandant is entitled to a conditional judgment for the foreclosure of his mortgage ; such judgment not to operate as an ouster of the tenant tom his possession under the first mortgage, or to disturb the same, but to give the demandant a right of entry under his execution to foreclose his mortgage as against subsequent .mortgages and the equity of redemption. Exceptions sustained.  