
    Ebenezer Wheelwright & another vs. William Freeman & another.
    Since special pleading was abolished by St. 1836, c. 273, a tenant in a writ of entry may rely on the defence of non-tenure, &c., under the general issue of nul disseizin, on filing a specification of such defence.
    Under the Rev. Sts. e. 107, $ 8, a writ of entry to foreclose a mortgage cannot be maintained against a tenant at will, or tenant for years, if he is willing and ready to give up the possession of the mortgaged premises. But if he denies the mortgagee’s right, and refuses to give up the possession, the mortgagee may treat him as a tenant of the freehold, by disseizin, and maintain a writ of entry against him.
    This was a writ of entry, to which the tenants severally pleaded nul disseizin, and jointly filed a specification of defence, in which they gave notice that they would aver that they were not tenants of the freehold in the premises described in the demandants’ writ, at the time of the commencement of this action, nor ever had been ; and that they claim nothing in said premises, except a leasehold estate therein, under a lease from Henry H. Fuller to them, dated June 24th 1843, for the term of two years from the said date.
    The case was submitted to the court upon the following statement of facts :
    “ The demandants are mortgagees of the demanded premises, holding a mortgage to secure payment of a promissory note, made in 1835, and bearing even date with the mortgage. Since the giving of the mortgage, the right in equity has been conveyed by the mortgagor, and it has passed, by sundry mesne conveyances, to Henry H. Fuller, who was, at the time of the commencement of this action, and now is, the owner thereof. The deed, by which said Fuller holds the same, bears date June 10th 1843, and was recorded on the 20th of that month. On the 24th of the same month, said Fuller, by indenture, in due form, demised the demanded premises to the tenants in the present action, to hold for the term of two years; and they entered into, and now hold possession of, said premises, under-and by virtue of said demise, claiming no other right or estate therein. The pleas and specification of defence are parts of this statement. The court is to order a nonsuit or a default, as they shall be of opinion that the demandants can or cannot maintain the present action.”
    This case was argued at a former term.
    
      Ward, for the demandants.
    
      Andrew, for the tenants.
   Dewey, J.

The p’ea of nul disseizin, filed by the defendants, would, prior to the St. of 1836, c. 273, abolishing all special pleas, and requiring the general issue to be pleaded in all cases, have been an admission that the defendants were tenants of the freehold, or might be considered as such, at the election of the demandants. But since the enactment of this statute, we are to look behind the plea, and the real grounds of defence are required to be presented in the specifications of defence, filed with the plea. We think, therefore, it is very clear that it is competent for a tenant in a writ of entry to rely upon the defence of no7i-tenure, or never tenant of the freehold, upon filing a proper specification of defence of that nature, with the plea of the general issue. Churchill v. Loring, 19 Pick. 466.

The further question raised in the present case is, whether an action to foreclose a mortgage can be brought against a tenant for years. The Rev. Sts. c. 107, § 8, provide that the action may be brought against whoever is tenant of the freehold.” This excludes the case of a tenant for years, holding strictly that relation. If such tenant makes no greater claim of title, and interposes no obstacle to the enforcement of the mortgage title created by his lessor; if he is ready and willing, at all times, to yield up the possession to the mortgagee ; in such case, the tenant for years is not liable to an action for foreclosure by the mortgagee. And if such suit is brought against him, he may avail himself of this defence, upon filing a proper specification thereof. On the other hand, any person who is in possession, be he tenant for years or otherwise, if he denies the right of the mortgagee, refuses to yield up possession to him, and thereby prevents him from taking peaceable possession, may, at the election of the mortgagee, be deemed a disseizor, and be considered and treated as a tenant of the freehold by disseizin, and in such case be liable to this action. See commissioners’ notes to Rev. Sts. c. 107, 7. The case of Shelton v. Atkins, 22 Pick. 74, involved only a question as to an action for foreclosure instituted prior to the revised statutes, and is not in conflict with these views.

The facts stated in the present case show nothing beyond the naked liability of tenants for years,, on the part of the defendants, and no acts of theirs which could authorize the demandants to consider them as disseizors, and liable to be treated as tenants of the freehold.

The result therefore is, that the defence is well maintained.

Demandants nonsuit. 
      
       In January 1849, at Boston, a similar decision was made in a case pending in the county of Bristol.
      Inhabitants of Raynham vs. Thbodobe W. Snow.
      This was a writ of entry to foreclose a mortgage given to the demandants by Dan Wilmarth. The tenant (as the parties agreed) never owned any freehold in the demanded premises, but was merely tenant at will, and removed, therefrom after the commencement of the action. At the first term, ae filed a disclaimer.
      The coubt held, that the action could not be maintained.
      
        N. Morton, for the demandants.
      
        Pratt, for the tenant.
     