
    Richardson Hall vs. Walter Bell, Jr.
    Where the holder of a second mortgage brings a real action to recover from a stranger possession of the mortgaged premises, the tenant cannot defend by giving in evi dence the assignment of the first mortgage to him, after action brought.
    This was a writ of entry, sued out on the 27th of July 1840, to recover possession of a tract of land in Colerain. The demandant counted on a mortgage deed of the demanded premises, made to him by Thomas Whitmore, dated July 3d, 1840, to secure payment of a debt which was due to the demandant from said Whitmore before May 19th 1840. At the November term, 1841, of the court of common pleas, held in the county of Franklin, the tenant pleaded the general issue, and filed a notice that he should offer in evidence, in his defence, a mortgage deed of the demanded premises, made by said Whitmore to Edward King, dated November 7th 1834, and an assignment of said mortgage to the tenant by said King, executed on the 27th of February 1841.
    The trial was had at the August term, 1843, of said court, before Cummins, J. After the demandant had given in evidence the deed on which he counted, the tenant introduced a deed of quitclaim of the demanded premises made to him by said Whitmore before the date of the deed counted on by the demandant, viz., on the 19th of May 1840. He also offered in evidence the mortgage and assignment mentioned in his notice of defence. The demandant objected to the reception in evidence of said mortgage and assignment, on the ground that they would show a title acquired by the tenant after the commencement of the present action, and because said assignment was not registered. The demandant also alleged that the other deed made to the tenant by said Whitmore, on the 19th of May 1840, was fraudulent as to the creditors of Whitmore.
    It was proved that the abovementioned Edward King, on the 24th of July 1840, sued out a writ of entry against the tenant, on the aforesaid mortgage made to him by said Whit-more, for condition broken, and that said action was pending until the tenant procured the aforesaid assignment on the 27th of February 1841.
    The judge refused to receive in evidence the said mortgage deed to King, and the assignment thereof to the tenant, and instructed the jury to find a verdict for the demandant, if they were satisfied that the other deed, viz., that of May 19th 1840, under which the tenant claimed title, was fraudulent as to the creditors of Whitmore. The jury found a verdict for the de-mandant, and the tenant alleged exceptions to the ruling and instruction of the judge.
    
      Aiken, for the tenant.
    
      Wells & Davis, for the demandant.
   Dewey, J.

It was not competent for the tenant to set up a title under the deed of mortgage to Edward King, which had been assigned to the tenant after the institution of the present suit. Independently of any other objection, it was a sufficient ground for rejecting the evidence offered to show such title, that it had been acquired after action brought. Andrews v. Hooper, 13 Mass. 472. Parlin v. Haynes, 5 Greenl. 178. It is no sufficient answer to this, that to reject this evidence will only lead to circuity of action, as the tenant has now a title which will avail him in a new action, and entitle him to the possession of the demanded premises. The doctrine of rebutter is one of equity, and to be applied where it will do justice to the parties; but it is quite obvious, that to allow a tenant, who holds without right at the time of the commencement of a suit, to avoid liability to pay costs, and acquire the right to tax costs, as the prevailing party, by the acquisition of an independent title pending the litigation, might work great injustice. Such evidence, it is believed, has been uniformly rejected.

Exceptions overruled.  