
    Jonathan Walcutt versus Nelson Spencer.
    If, pending a writ of entry, the tenant be ousted by a stranger having a better title, or the land is recovered against him by a stranger, the writ will abate ; but in both cases the fact must be especially pleaded, as having occurred pending the writ, or since the last continuance.
    This was a writ of entry, in which the demandant counts upon a mortgage. The action was submitted to the determination of the Court upon the following case agreed : The demandant, in the year 1806, mortgaged the demanded premises to one William, Walcutt, to secure the performance of the condition of a bond executed by the demandant, and providing for the maintenance of the said William and his wife. Afterwards the demandant conveyed the premises to one John Belloivs, subject to said mortgage, and took from the said Bellows the mortgage, upon which the present action is brought, as collateral security, among other things, for a bond to indemnify the demandant against his said bond to William Walcutt. Afterwards the said Bellows conveyed the demanded premises to the tenant, subject * to the aforesaid mortgage; and took from him a bond, conditioned, among other things, to indemnify the said Bellows against his said, bond to the demandant, which is secured by the mortgage declared upon.
    This action was commenced in the Circuit Court of Common Pleas, December term, 1814; and the said William Walcutt sued the mortgage made to him at the succeeding June term of the same court, and entered into possession of the demanded premises in November, 1815; when he, the said William, executed a lease thereof to the tenant for one year, from the 20th day of the same November, and the tenant continued in possession, claiming to hold by virtue of said lease, October, 1816, when the case was thus agreed and submitted.
    If the Court should be of opinion that the above facts, or such of them as are by law admissible under the general issue, were insufficient to support the issue on the part of the tenant, he was to be delaulted. But if the Court should be of opinion that the said facts could have been so given in evidence upon the general issue, and that they amounted to a legal defence in this action, the demandant was to become nonsuit.
    
      Hosmer, for the demandant,
    cited the cases of Doe, ex Dem. Bristowe, vs. Pegge, 1 D. &f E. 760, note (cr.) —Evans vs. Prosser, 3 D. Sf E. 186. — 1 Sound. 320, Pordage vs. Cole, in notis. — 2 Co. Ch. 244.
    
      Hoare, for the tenant,
    contended that the authorities cited did not reach the case at bar, having no application to the case of a mortgagee, or of any claiming under him.
   Jackson, J.,

delivered the opinion of the Court. In the writ of entry at common law, if the tenant is ousted, pending the suit, by a stranger having a better title, this will abate the writ. So if the land is recovered against him by a stranger, unless the recovery is by collusion. But in both cases the fact must be specially pleaded, as having occurred pending the writ, or after the last continuance. It resembles the common plea of non-tenure, and cannot be given in evidence under * the general issue. In our practice, non-tenure may perhaps be pleaded in bar; but still it must be specially pleaded, if the party would take advantage of it.

It is also very questionable whether this matter, if duly pleaded would have availed the tenant in this action; which is founded upon our statute for foreclosing the right of redemption upon a mortgage. If the party sued claims to hold the land by any title independent of the supposed mortgage, the title may be tried as in a common writ of entry ; as, if, in the present, case, some stranger had claimed the land by a title older and better than that of any of the parties here named, and had duly conveyed all his estate to Spencer, the latter might rely on that title alone; and if he could show it to be the better, he would prevail in the suit. But when the party sued has no title but as mortgagor, or as assignee of the right of redemption, and does not set up any other title in his defence, the action assumes a different shape, and becomes, in effect, a bill in equity to foreclose the right of redemption. The principal difference between the process in this point of view and the proceedings for the like purpose in the English courts is, that here our statute fixes the time within which the defendant shall pay the sum found due on the mortgage, in order to prevent the foreclosure, instead of leaving it to be limited in such case by the courts.

Now, when the action assumes this shape, the object and effect of it is to ascertain what sum is due on the mortgage, and to foreclose and bar the defendant’s right of redemption, unless he pays that sum within the time prescribed. So far as regards that question, it seems unimportant to inquire what estate the defendant has in the premises. At least, if he has the right of redemption, which is sought to be foreclosed, he must be a proper party to the suit.

In the case at bar, it is obvious that Spencer, after the recovery against him by William Walcutt, still had the right to redeem the premises, as against both of the * mortgagees. It has been decided in this Court that, where a reversion, after an estate for life, is mortgaged, an action like the present may be maintained against the mortgagor, although the tenant for life is still living, and of course the defendant in the action is not tenant of the land. There seems to be no more objection to maintaining the action, when the defendant has only a right of redemption upon a preceding mortgage. A recovery by the demandant in this case will not prejudice William Walcutt, who is not a party to the suit; but he may still hold the land in virtue of the mortgage to him, until redeemed by the demandant, or by some person claiming under him.

But, without relying on this point, the first is conclusive. This matter could not be given in evidence under the general issue; and, according to the agreement of the parties, the tenant must be called.

Tenant defaulted 
      
      
        Com. Dig., tit. Abatement H, 56.
     
      
      
        Ibid. H 54.
     
      
       13 Mass. Rep. 429, Penniman vs. Hollis.
      
     