
    Abiathar Hoxie & others vs. Lucy Finney.
    A mortgage of real estate is a good defence to a writ of entry, without a disclaimer of absolute title in fee simple. •
    Writ of entry to recover land in Plymouth. Plea, nul disseisin, with a specification of defence of entry and possession under a certain instrument which the tenant claimed to be a mortgage. The tenant at the trial was allowed to amend, by disclaiming all title in a part of the land, and setting up her possession of one third under said mortgage, and a title in the remaining two thirds under two mortgages under which she had not taken possession. The demandants contended that there was no sufficient disclaimer of a fee simple absolute. But Metcalf, J. ruled otherwise, and directed a verdict for the tenant, which was returned, and the case reserved for the consideration of the full court.
    
      E. Ames, for the demandants.
    
      C. G. Davis, for the tenant.
   Dewey, J.

The verdict was properly taken for the tenant. The amended pleadings obviated all objections, if any existed before such amendment. The disclaimer therefore properly answers the demand, as to all the land embraced in the same As to the two undivided third parts, the title of the tenant as mortgagee was well established and is a good answer to the action. A mortgagee, whether an entry into the possession of the premises has or has not taken place, has no occasion to disclaim an absolute fee, or set out the nature of his interest. His seisin in fee and mortgage is quite sufficient title to constitute a good defence and entitle him to a general verdict. Such interest differs from that of a mere easement, or license, or some subordinate interest, as was the case of Miller v. Miller, 4 Pick. 244, and the case supposed in Pynchon v. Stearns, 11 Met. 312, cited by the plaintiffs’ counsel.

Judgment on the verdict for the tenant.  