
    * Mary Blanchard versus James S. Colburn and his Wife.
    Lands mortgaged cannot be levied upon, for the debt of the mortgagee, unless he shall first have entered upon the same.
    This was a writ of right, in which the demandant counts upon the seisin of Hezelciah Blanchard, her great uncle, within forty years before the date of the writ. Issue being joined upon the mere right, the same was tried at the last November term, before the chief justice.
    The demandant proved that her said ancestor was seised of one part of the land demanded in the year 1736, by virtue of a deed from one John Allen, and by entry and occupation of fhe same until the year 1781 under his deed; and of the other part of the land demanded, by force of a deed from one Thomas Knights, dated February 20th, 1764; the two parcels adjoining each other, and being occupied together by the said Hezekiah, who died in the year 1783, in a dwelling-house standing on a part of the land demanded.
    The tenants, to disprove the seisin of the said Hezekiah, as to that part of the land demanded which was conveyed to him by Knights, within forty years before the commencement of the suit, produced a copy, from the registry of deeds, of a mortgage deed from him to the same Knights, bearing date the next day after the conveyance from him, and recorded at the same time with that conveyance ; which mortgage remained uncancelled upon the record, and under which there was no evidence of record, of entry or possession by the mortgagee, or any person under him. But there was parole evidence, that the wife of Knights, after the war of the revolution, máde some claim for the land ; her husband having left the country in the beginning of the revolution, and never having returned.
    In 1785, Job Prince, the ancestor of the tenant’s wife, recovered a judgment against Knights, and levied his execution upon this land, and had the same appraised and set off to him as Knights’s [ *346 ] land, to satisfy his execution; *and Joshua Blanchard, one of the said Hezekiah’s heirs, was one of the appraisers, who valued the land levied on. There were many circumstances in evidence, tending to raise a presumption that the condition of the mortgage had never been performed.
    The said Job Prince, and those claiming under him, had continued seised ever since the levy, with the acquiescence of all the heirs of the said Hezekiah, who were of full age at the time of the levy, and lived in the neighborhood of the land. The said Hezekiah died much in debt, an unsatisfied execution against him having been in the sheriff’s hands but two months before, and no administration was ever taken of his estate.
    The tenants contended that the facts thus shown in evidence were conclusive proof that Knights had entered and foreclosed the mortgage aforesaid.
    The jury were instructed, that the mere existence of a mortgage did not disprove the seisin of the demandant’s ancestor, that the debt might have been paid, notwithstanding the mortgage was not cancelled; but if they were satisfied that Knights, or any person under him, had entered for condition broken, and with intention to foreclose, then the seisin of Hezekiah Blanchard was disproved.
    A verdict was returned for the demandant; and if the Court should be of opinion that the said levy of execution against Knights was conclusive evidence of an entry and foreclosure under the inrrtgage to him, a new trial was to be had; otherwise judgment was to be rendered on the verdict.
    
      Gallison, for the demandant.
    
      Gorham and S. D. Parker, for the tenants.
   Parker, C. J.,

delivered the opinion of the Court. We are of opinion that no title was acquired by Joh Prince, in virtue of his extent on that part of the land which was mortgaged to Knights, unless entry had been made by Knights under the mortgage before the extent. For land thus mortgaged is not the real estate of the mortgagee, * within the meaning of our stat- [ * 847 ] ute, which provides for the extending of executions . *

It is true, to some intents the mortgagee is seised of the estate mortgaged in fee simple, subject only to its being defeated by a performance of the condition according to deed, or afterwards according to the provision of the statute giving remedies in equity . But to other purposes, the land belongs to the mortgagor, and may be taken in execution as his real estate, subject to the mortgage.

The difficulties of levying upon land mortgaged, to satisfy a debt due from the mortgagee,, are insuperable. The debt may require only a small part of the land to satisfy it, and several executions may be levied by several persons; and this would embarrass the mortgagor or his heirs, if they should choose to redeem. Besides, the land mortgaged is only a pledge for the debt, which may be, and often is, assignable in its nature ; and if it be assigned, the mortgagor may pay it to the assignee, and thus discharge his mortgage, notwithstanding the creditors of the mortgagee may have taken the land in execution. These difficulties have caused the prevalent opinion, that lands so situated are not subject to the debts of the mortgagee; at least not until he shall have entered with a view to foreclose. Judge Trowbridge was of a different opinion , and much respect is due to him. But the law respecting mortgaged estates has been changed by the legislature since his time, it being enacted by the statute of 1788, c. 51, that such estates shall be assets in the hands of executors and administrators, and be distributed as personal estate.

It was necessary, then, in order to make the title of the tenants under the levy good, that it should have been proved to the jury, that Knights, the mortgagee, had entered under his mortgage before the levy. This was a fact for the jury to find; and they were not íestricted to direct evidence, but were permitted to presume the existence # of the fact, from the circumstances [ * 3 48 ] adduced by the tenants at the trial to establish it. These circumstances might be considered strong; but they were not conclusive; and even if no contradictory circumstances had been shown by the demandant, it was competent for the jury to disbelieve the fact, it being entirely within their province to decide.

It is not easy to see how a verdict can be agaii st evidence, where there is an entire absence of direct proof, and presumptions alone are relied upon to establish the necessary facts. At any rate, the Court cannot, under such circumstances, set aside a verdict.

Judgment on the verdict 
      
      
        Stat. 1783, c. 57.
     
      
      
        Stat. 1785, c. 22.
     
      
       Vide 8 Mass Rep. 565
     