
    The President &c. of the Boston Bank versus Silas Reed Junior et al.
    
    Where a mortgagee brings a writ of entry against the mortgager, without declaring upon the mortgage, and recovers a judgment at common law, by virtue of which he enters upon the mortgager, the mortgager is not liable in trespass ,tor mesne profits.
    So where the grantee of an equity of redemption conveyed the same to a stranger, but still continued in possession, and the mortgagee brought a writ of entry against him, not declaring on the mortgage, and recovered a judgment at common law and entered upon the tenant by virtue thereof, but showing no title except under the mortgage, it was held, that tlie tenant was not liable to- the mortgagee for mesne profits.
    Where the tenant in such writ of entry, denying his liability for mesne profits, nevertheless gave his promissory note to the mortgagee for a sum equivalent to the value of the mesne profits for a portion of six years, with the understanding, however, that if certain persons, to whom he was to apply, should say he was not liable, the note should be given up, but he never made such application, it was . held, that he was not estopped to say that the note was without consideration and void.
    Assumpsit on a promissory note, dated September 25, 1827, for 100 dollars, given by Silas Reed junior as principal and the other defendant as surety.
    At the trial, before Putnam J., it was proved, that at the Court of Common Pleas, September term 1827, the plaintiffs recovered judgment at common law, in a writ of entry sur disseisin against Silas Reed junior, in which they counted on their own seisin within thirty years and a disseisin by Reed A writ of possession on that judgment was regularly executed, and seisin of the demanded premises was delivered to the attorney of the demandants. The land recovered was formerly owned by one Chaddock, who mortgaged it to the demand-ants m 1803; and no evidently .vas offered by the demand-ants, of any title other than the mortgage. The right in equity was conveyed to Silas, who conveyed the demanded premises by absolute deed, dated December 4, 1824, to Lewis H. Reed, but continued in possession, as before, till September 25, 1827. Immediately after the execution of the writ of possession, and on the same day, Lewis conveyed all his interest in the land to the plaintiffs. No interest had been paid on the mortgage since 1814. On the same day the attorney of the plaintiffs demanded of Silas the rents and profits of the estate for three years next, preceding the recovery in the writ of entry, or from the date of his deed to Lewis. Silas denied that he was liable in law to pay the back rent, but after inquiring of the attorney whether he was in fact liable to pay such rent, and being informed by him that in his opinion he was so liable, he consented that his tenant for the then current year should pay the plaintiffs the rent for that year, being 50 dollars, and that he would give his note as principal, with the oilier defendant as surety, for 100 dollars; with this understanding, however, that the defendants might take the opinion of three lawyers named, and if two of them should express an opinion that Silas would not be liable in an action of trespass for mesne profits, the note should be given up. The defendants were to make the application to those lawyers, and were to give notice to the plaintiffs’ attorney, of the time of the application. No such application was ever made ; and on the 21st of January, 1828, the attorney sent a letter to Silas, stating that as no such application had been made, he should consider the question as given up, and that the note would be paid. The present suit was commenced in February, 1828.
    Upon the foregoing evidence the judge directed a nonsuit, with leave to the plaintiffs to move to have it taken off.
    
      Burnside now moved to take off the nonsuit.
    The plaintiffs claimed the rents and profits for six years, and Silas Reed junior thought he was not liable at all ; and by way of compronise, he gave the note now in suit. If he had procured an opinion in his favor from the lawyers to whom the question of his liability was referred, the plaintiffs would have been bound by it ; consequently the agreement was binding upon him. So that the question, whether he was liable in trespass for mesne profits, is no longer open.
    But if the defendants would not be liable on the note, unless Silas was liable in trespass for mesne profits, it is apprehended that he was so liable. The record states a seisin within thirty years, but the evidence showed a seisin within twenty, Silas having entered upon the land in 1817 ; and this evidence, connected with the recovery, is conclusive evidence of a right to an action of trespass for mesne profits. Emerson v. Thompson, 2 Pick. 487; Baron v. Abeel. 3 Johns. R. 481; Jack
      
      son v. Randall, 11 Johns. R. 405; Stearns on Real Actions, 421. The only ground of defence must be, that Silas R. entered upon the mortgager and that he stands in the situation of a mortgager. Wilder v. Houghton, 1 Pick. 87; Fitchburg Cot. Man. Co. v. Melven, 15 Mass. R. 268; Gibson v. Farley, 16 Mass. R. 280. If a mortgager should appear and move for the conditional judgment in a writ of entry at common law, the case would be like an action upon the mortgage ; but if he lies by, he cannot afterward rely on the mortgage, in an action for the mesne profits. There is no privity of contract between the mortgagee and a purchaser of the equity of redemption ; the mortgagee finds the purchaser in possession, without knowing how he came there, and if the purchaser lies by and suffers a recovery at common law, he must abide by the consequences. Green v. Kemp, 13 Mass. R. 519; Partridge v. Gordon, 15 Mass. R. 486; Jackson v. Fuller, 4 Johns. R. 215; Keech v. Hall, 1 Doug. 21.
    
      
      Oct. 3ii
    
    
      
      Oct. 6th.
    
    All the right of Silas R. was transferred by him, and yet he remained in possession. He should be liable for the rents and profits at least from the time when he ceased to have any title. He might have pleaded that he was not tenant to the freehold, but he did not, and he cannot now set up that defence in an action for the mesne profits.
    
      J. Davis and Allen, contra,
    
    contended that the note was void for want of a consideration, Silas R. not bfeing liable to the plaintiffs for mesne profits. Wilder v. Houghton, Fitchburg Cot. Man. Co. v. Melven, Gibson v. Farley, and Green v. Kemp, before cited; Freeman v. Boynton, 7 Mass. R. 488; Warder v. Tucker, ibid. 449.
   Wilde J.

delivered the opinion of the Court. It has been argued for the plaintiffs, that the note, being given on the compromise of a doubtful and contested right, is binding ; but we think it manifest that there was no compromise, as Silas Reed junior denied his liability, and that question was agreed to be submitted to the opinion of counsel; and as it has not been thus decided, it must be now determined in this action. It is generally true, that a judgment in a writ of entry is conclusive evidence of the right to recover in an action of trespass for mesne profits but a judgment in favor of a mortgagee against the mortgager is an exception to the general rule ; for the principle is well settled, that a mortgager is not liable for rents and profits. Wilder v. Houghton, 1 Pick. 87; Fitchburg Cot. Man. Co. v. Melven, 15 Mass. R. 268; Mead v. Lord Orrery, 3 Atk. 244; Keech v. Hall, 1 Doug. 20; Higgins v. York Buildings Co. 2 Atk. 107.

The form of the action cannot affect the rights of the parties. But as the plaintiffs declared generally on their seisin, it was competent for them to show in this action, that they had an absolute indefeasible title to the land. This they have not attempted to show, and we must conclude, therefore, that their only title is under the mortgage. But they contend that Silas Reed junior was not in under the mortgager after his conveyance to his brother. ■ We think however that this position cannot be maintained. After this conveyance he held as tenant at will or at sufferance under his brother. He certainly was not in under the mortgagee.

We are therefore of opinion, that the plaintiffs could not maintain an action of trespass for mesne profits on the facts reported ; and consequently, that the note sued was given without consideration

Motion to take off the nonsuit overruled. 
      
       See Cavis v. M'Clary, 5 N. Hamp. R. 530; Pope v. Biggs, 9 Barn. & Cressw. 245.
     