
    David Green versus Levi Kemp.
    A mortgage made upon an usurious consideration is void only as against the mortgagor, and those who may lawfully hold the estate under him; a purchaser of the mere equity of redemption cannot avoid the mortgage by plea or proof of usury, f
    t Bridge et at. vs. Hubbard, 15 Mass. Rep. 103.
    A mortgagee may declare generally on his own seizin, and have judgment for possession as at common law, as well after as before condition broken, and as well against the mortgagor as his assignee. j;
    [t See Rev. Stat. c. 107, § § 3, 4. — Ed.]
    This was a writ of entry for three parcels of land in Dunstable, on the seizin of the demandant, who alleges a disseizin by the tenant.
    On the trial, which was had upon the general issue, at the sittings here after the last October term, before Jackson, J., it appeared, that one Isaac Woods, being seized of the premises in question, on the 18th of April, 1805, mortgaged the same, by his deed of that date, to the demandant, to secure the payment of his promissory note of that date *to the demandant for the sum of $ 1000. This deed was acknowledged on the day of its date, and recorded on the 14th of May following. At the Supreme Judicial Court for this county, October term, 1812, the demandant recovered judgment in an action upon this mortgage against the said Woods, and took out a writ of habere facias seisinam thereon ; but this writ has never been executed. At the time when that action was commenced, the present tenant was in the actual possession of the premises, under the title hereafter mentioned, and has continued in possession ever, since, with the exception only of a part of one winter.
    The same Isaac Woods, on the 25th of April, 1810, by his deed of that date, in consideration of $ 100, “ demised, released, and quitclaimed to the said Kemp all the right in equity of redeeming which he had in the premises.” This deed was acknowledged on the same 25th of April, and recorded on the 1st of July, 1815. This deed does not mention the said mortgage, previously made by Woods to the demandant; nor does it jn any manner specify the incumbrance alluded to, nor state how the said right of redemption arose. But it w7as not suggested at the trial, that there was any other mortgage or incumbrance on the premises than the above-mentioned mortgage to the demandant. The tenant entered on the premises immediately after the execution of that deed, and has continued in possession, except as above mentioned.
    The tenant then offered to prove, that the said mortgage was made on an usurious contract; namely, that the demandant had lent to the said Woods the sum of $1000, for which the above-mentioned note and mortgage were given, upon an agreement between them that the said Woods should pay him interest therefor at the rate of twelve per cent, per annum ; and that Woods had accordingly paid the interest at that rate for one or two years. The note and mortgage were expressed to be on interest at the legal rate ; and the agreement for the excess was by parol.
    * The demandant objected to the admission of this evidence, and the judge rejected it; and on this ground the tenant moved for a new trial.
    
      J. Prescott and Lawrence, for the tenant,
    contended, that the de mandant was bound to declare upon his mortgage deed. If judgment is rendered for him m this form of action, the tenant is for ever barred, and has no opportunity to plead any special matter in avoidance of the deed. In the case of Erskine vs. Townsend, 
       it is said by Chief Justice Parsons, that it had been settled by this Court, that, if a mortgagee declare generally, and the mortgagor shall plead in bar, that the mortgagee is seized as tenant in mortgage only, the condition of which is broken, the action will be barred.
    The demandant having thus prevented the tenant from pleading the usury which furnished a legal and sufficient defence to the action, the tenant must have a right to give it in evidence. It goes to defeat the only title which the demandant has to the land. The deed from Woods to Kemp, although unskilfully drawn, is a grant of the land, subject to the demandant’s claim under his mortgage. If that claim is for any cause shown to be void and unfounded, the tenant’s title to the land is absolute. He has a right to avail himself of all matters of which Woods himself could have availed himself; and, amongst others, the right to avoid the mortgage, by showing it void in its creation.
    As, by the manner of the demandant’s-declaring, he is prevented from pleading the usury, he should be permitted to give it in evidence. It may be, that the tenant purchased the premises on the ground that the mortgage was void ; knowing that Woods, when released by him, would be a competent witness to prove it. The consideration paid may have .been proportioned to this state of the facts. It is, then, doing him injustice, to deprive him of a defence which is given in the case by the legislature ; and which *will be received with respect in a court of law, whatever vulgar prejudices may be indulged against it.
    
      Hoar, for the demandant.
    The action stood continued nisi for advisement; and, at the following March term in Suffolk, judgment was ordered to be entered foi the demandant upon the verdict returned for him.
    
      
       2 Mass. Rep. 496
    
   Wilde, J.

This is a writ of entry, the demandant counting gen erally on his own seizin, and a disseizin by the tenant. The title set up by the tenant is derived fr'om one Isaac Woods, who, in April, 1808, conveyed the demanded premises in mortgage to the demand-ant ; and, in April, 1810, sold the equity of redemption to the tenant. This latter declines redeeming the land, and rests his defence on the supposed invalidity of the demandant’s title, and on an objection to the form of the action.

The objection made to the demandant’s title is, that the mortgage deed was made on an usurious contract, the evidence of which was offered at the trial, and was rejected by the judge. The first question now to be determined is, whether this evidence was rightly rejected.

Although, by the statute of 1783, c. 55, § 1, all mortgages on usurious considerations are declared to be utterly.void ; yet it never could have been intended that a stranger might enter on the mortgagee, or commit a trespass on the land, and justify himself under the statute, when all parties interested in the title should be disposed to acquiesce in the contract. The statute must have a reasonable construction, and in conformity to its general object; which was, to pro tect debtors from the enforcement of unconscionable demands. A mortgage on a usurious consideration is, therefore, void only as against the mortgagor, and those who may lawfully hold the estate under him.

On this construction, if the tenant had purchased the land, he might avoid a previous usurious mortgage, although he had notice of such mortgage before the * purchase. But the tenant has no title in the land before redeeming. He has purchased only the right to redeem ; and, if he will not avail himself of this right, which is the basis of his title, he cannot hold the land ; and, having no title in the land, he cannot be permitted to avoid the mortgage by plea or proof of usury. The principle contended for by the tenant’s counsel would serve to encourage fraud and injustice, rather than to restrain the taking of excessive usury.

The objection to the form of action is, that the demandant has not declared on the mortgage ; and this objection is supposed to be supported by the case of Erskine vs. Townsend, in which it is said, “ That it had been settled by this Court formerly, that, if he, the mortgagee, declare generally, and the mortgagor shall plead in bar that the mortgagee is seized as tenant in mortgage, the condition of which is broken, the action shall be barred.” The grounds of this opinion are not stated, and it is not easy to perceive on what fair construction of the statute it can be supported. The object of the statuto is, to provide for foreclosing the mortgage, and to give a remedy in equity to the mortgagor. It is admitted, that, before condition broken, the mortgagee may have judgment for possession at common law ; and we see no good reason why he may not have the same judgment after condition broken, when the object of the suit is not to foreclose the mortgage. Such a judgment cannot be injurious to the interests of the mortgagor, for he may redeem at any time ; and, if the mortgagee should refuse to receive the money, he may be considered in possession for condition broken, at the election of the mortgagor, so as to entitle him to his bill in equity.

But, if we held this point doubtful, or were satisfied that the de cisión relied upon for the tenant is correct, it would by no means follow that a mortgagee must be held to declare on his mortgage deed, against an assignee of the mortgagor. Such a principle might subject the * mortgagee to unnecessary inconvenience. He might not have it in his power to prove the assignment, or he might be ignorant that the tenant claimed as assignee. But there can be no inconvenience in requiring the assignee to set forth his title in his plea, if he would avail himself of it to restrict the demandant to a conditional judgment.

The defence also must fail on another ground. The plea of nul disseizin puts in issue the title to the land ; and as to that, there can be no question.

If the tenant had intended to avail himself of the objection made to the form of the action, he should have pleaded the mortgage, and have alleged that the condition had been broken before the commencement of the suit. As he has not so pleaded, it is very clear that the demandant is entitled to judgment.

Judgment on the verdict. 
      
      
        Carter vs. Claycole, Bac., Abr., Title, Usury, E., cites Leon, 307, pl, 427 — Bull N. P. 224. — Bearce vs. Barstow, 9 Mass. Rep. 48.
     
      
      
        Pomeroy vs. Winship, 12 Mass. Rep. 519.
     