
    Alfred White versus Moses Bond.
    Lands wMch have been mortgaged by a judgment debtor, may be taken in exe cution by appraisement, as if unencumbered, provided no deduction is made by the appraisers on account of the mortgage; and the judgment creditor will have a right to his bill in equity to redeem.
    This was a writ of entry sur disseisin, and was submitted to the opinion of the Court upon the following facts agreed by the parties.
    The demanded premises were the property of one Jonas II Bartlet, who conveyed them, with other lands, to the State Bank, as collateral security for the payment of a sum of money. In March, 1817, the demandant caused the premises to be attached as Bartlet’s on mesne process; and within thirty days after the recovery of judgment, caused his execution to be extended thereon by appraisement, the appraisers having no regard to the encumbrance, and making no deduction on that account. In April following, the tenant, Bond, caused the same premises to be attached as the property of Bartlet, and within thirty days from the rendition of judgment in his favor sued out his execution, upon which [ * 401 ] he caused Bartlet’s right in equity * to be seized; and the same was duly advertised by the officer for sale; but before the day appointed for the sale, learning that Bartlet had paid to the bank the debt for which the land had been mortgaged, he caused his execution to be extended on the premises by appraisement, and entered thereon by virtue of the said extent.
    If the Court should be of opinion, that the land thus encumbered with the mortgage was liable to be taken and set off by appraise ment on the demandant’s execution, so as to give him a good title against the tenant, judgment was to be rendered for the demandant upon the default of the tenant. Otherwise the demandant was to become nonsuit, and costs to be taxed for the prevailing party.
    
      Hammond, for the demandant,
    contended that the extent of the demandant’s execution was valid, and vested in him an estate in fee against all persons but the mortgagees. The mortgagor is seised of the land, subject to the claim of the mortgagee. He can maintain an action for the possession; and his widow is dowable . None but the judgment creditor himself can be a sufferer by this mode of extending the execution. When the debt is paid, for which the land was mortgaged, the estate is as if it had never been encumbered. In the case of Warren vs. Childs 
      , Sewall, C. J., expresses a strong inclination of opinion, that such an extent would be good if made, as was the case here, without any deduction for me encumbrance, supposing the judgment creditor willing to lose the value of the encumbrance, and to take the estate as absolute in his debtor.
    
      Burnside, for the tenant.
    The demandant acquired no title by extending his execution in the manner he did. It is clear, from the case of Warren vs. Childs, that he gained by his extent no right to redeem the land from the lien which the bank had upon • it. If, then, he did not acquire the right of redemption, it remained in Bartlet, and was legally taken from him by Bond, [ * 402 ] ■ The payment of * the mortgage money affected Bond’s lien no otherwise than as it led to a different mode of satisfying the execution.
    
      
       6 Johns. 290. —11 Johns. 534. —15 Johns. 319.
    
    
      
       11 Mass. Rep. 222.
    
   Parker, C. J.,

delivered the opinion of the Court. The objection to the demandant’s title is, that, at the time his execution was extended upon the land of Bartlet, the debtor, it was under mort gage, and therefore not capable of being extended upon in satisfac tian of an execution.

In the case of Warren vs. Childs, cited, in the argument, a doubt is expressed by Chief Justice Sewall, whether the provision by statute for the sale upon execution of rights in equity to redeem mortgaged land did not supersede the levy by extent and appraisement. He, however, seems to admit that this mode may be pursued, if the land be appraised without any deduction on account of the debt for which it is mortgaged.

It was so done in the present case; and we are of opinion that the demandant’s title is valid under the extent. The land is the property of the mortgagor, as to every person’s claims but the mortgagees. If the creditor chooses to take it subject to the mortgage, and without allowing any thing for the debt, there seems to be no reason against it. If he pays the debt, and takes a release from the mortgagee, his title will be complete. He may also be considered as assignee of the mortgagor, and will have a right to his bill in equity to redeem.

Tenant defaulted  