
    Abraham Gould versus Margaret Newman.
    After an assignment of an estate, mortgaged by the mortgagee, the action to foreclose the mortgage must be brought in the name of the assignee.
    This was a writ of entry, brought to foreclose a mortgage, given by the defendant to the plaintiff, pursuant to the statute of 1785, c. 22, $ 1.
    The defendant, after oyer, pleads in bar that, since the execution of the mortgage, and before any breach of the condition thereof, the plaintiff, by his deed duly executed, acknowledged, and recorded, assigned all his interest, &c., in the demanded premises, to one Thomas Pons, in fee simple; that the premises passed to the said Pons by the said assignment; and that the plaintiff had not, at the time of commencing this action, nor at any time since the making of the said deed of assignment, any cause of action against the defendant, as he in his writ and declaration has alleged and supposed.
    The plaintiff replies that, by the same deed of assignment, the said Pons was authorized with full power, in the * name of the plaintiff, and for the sole use of the said [ * 240 ] Pons, to enter into, sue for, and recover, the demanded, premises, and to do all acts necessary to invest him with the right and possession of the premises, in as ample a manner as the plaintiff could himself do ; “ wherefore he prays judgment that he may recover possession of the demanded premises, to the sole use of the said Pons, for whose use and benefit this action is brought, and for his damages and costs.”
    To this replication the defendant put in a general demurrer, and the plaintiff joined in demurrer.
    At the July adjournment of the last March term, the cause was shortly argued by Whiting for the plaintiff, and Sullivan for the defendant.
    
      Sullivan contended that the plaintiff, by his assignment having parted with all his interest in the mortgaged premises, could not make the assignee his attorney; certainly not as regards the mortgagor ; for the attorney thus made has no authority to cancel the mortgage. Whiting argued .that the mortgagor had no right, in an action between the mortgagee and himself, to question the mortgagee’s title, or to set up that of a third person.  She had forfeited her title to the land, and it was indifferent to her in whom that title was vested.
    
      The action was then continued for advisement, and at this term the opinion of the Court was delivered by
    
      
       1 D. & E. 758.
    
   Parsons, C. J.

[After stating the pleadings.] Under the general issue, it is very clear that this conveyance by the plaintiff could not be given in evidence ; for it is consistent with every allegation in the count, and in fact admits the plaintiff’s seisin, and the dis seisin complained of. The question is, whether it may be well pleaded in bar.

If a mortgage was a chose in action, not assignable at law, but only in equity, the bar would be bad, because the legal estate still remained in the mortgagee. So, when a man, not seised [ * 241 ] of land, executes a deed of conveyance, he * may after • wards maintain a real action in his own name, if nothing passed by the deed of conveyance. But if a man should execute a conveyance of any kind, by which the estate in fact and in law passed, or his right was extinguished, he could not after maintain an action in bis own name to recover seisin, if his conveyance be pleaded in bar. This distinction is to be found in the year books. For if the demandant has no interest in the tenements demanded, he has no cause to question the title of the tenant. But the tenant cannot avail himself of the conveyance of the demandant, made after a disseisin committed, under the general issue, because the evidence of the alienation or extinguishment does not contradict any allegation in the count. And after the disseisin complained of, the disseisee may have released to the disseisor, who may not be the tenant; in which case he would have no interest or claim remaining.

Now, after a mortgage, if the mortgagor remains in possession, it is not a disseisin of the mortgagee, who may convey the lands mortgaged to a third person, who shall thereupon be seised of the legal estate in the lands, subject to the condition in the mortgage. The conveyance is not, therefore, an assignment of a chose in action, but an alienation of the legal estate ; so that the mortgagee has no longer any right or interest in, or claims to, the land mortgaged. And having no legal claim to the lands, he can maintain no action to recover seisin of them ; but his alienation may bé pleaded in bar.

The making of the assignee of the mortgage an attorney, to sue it for his own use, in the name of the assignor, was founded in the mistake of the scrivener, in supposing the legal estate not to have passed by the assignment, but only an equitable interest.

The action in this form cannot be maintained ; but Pons may foreclose the mortgage by a suit in his own name. Indeed, if the legal estate in lands mortgaged did not pass by the as [ * 242 ] signment, great inconveniences would follow ; * for the assignee must then use the name of the assignor, if living, or, if dead, of his executor or administrator, and might be embarrassed in obtaining a legal title, after a judgment and execution in the name of the assignor, or of his executor or administrator.

In this case, it is said that the bond, to secure the payment of which this mortgage was given, was also assigned; but, being a chose in action, judgment has been recovered on it in the name of the assignor, which is not satisfied. Notwithstanding those proceedings, Pons will be entitled, on his action, to foreclose the mortgage, to have the conditional judgment entered in his own name, unless the judgment on the bond shall have been before satisfied.

The replication must be adjudged bad, and the plaintiff can take nothing by his writ.  