
    Joseph Burridge & another vs. Jesse Fogg & another.
    Proof of the execution, delivery, acknowledgment and recording of a mortgage from a third person to the demandant, is sufficient, prima facie, to sustain a writ of entry to recover the land mortgaged.
    Where the tenant in a writ of entry pleads nvl disseizin, the demandant is not bound to prove the tenant’s possession.
    This was a writ of entry on a mortgage, and was commenced on the 5th of November, 1847. The tenants pleaded the general issue.
    At the trial in the court of common pleas, before Byington, J., the demandants, to prove their case, produced and proved a mortgage to them from Daniel Leland, Jr., and James Luke, Jr., of the land described in their writ, and the notes secured by the mortgage, made by Leland and Luke to the demand-ants. The mortgage and notes bore date the 31st of August, 1846; and the mortgage was duly executed, delivered, acknowledged, and recorded. The demandants then rested their case.
    The tenants introduced no evidence; and requested the judge to instruct the jury, that the demandants had not made out a primd facie case, and that merely showing a mortgage by Leland and Luke to them of the demanded premises, without showing some possession or seizin or title in the mortgagors, or some connexion between the mortgagors and the tenants, would not be sufficient evidence to warrant a verdict for the demandants. But the judge refused so to instruct the jury, and instructed them, that if they were satisfied by the evidence, that the mortgage was duly executed, delivered and recorded, and that the notes were executed by Leland and Luke to the demandants, and that there was something due to the demandants on the mortgage, they would be entitled to recover.
    The judge further instructed the jury, that the tenants having pleaded the general issue, the demandants were not required to show that the tenants were in possession of the demanded premises.
    
      The jury returned a verdict for the demandants, and the tenants alleged exceptions.
    This case was argued at the last October term, by J. G. Abbott, for the tenants, and B. F. Jacobs, for the demandants.
   Shaw, C. J.

This case we think must be governed by that of Ward v. Fuller, 15 Pick. 185. The execution, delivery and acknowledgment of a deed, are by statute made to have the force and effect of livery of seizin, and therefore do constitute some evidence of seizin in the grantee, and therefore in the absence of all proof, on the part of the tenant, may avail. The plea of mil disseizin so far admits the tenant’s claim to have the freehold, that it is not incumbent on the demandant, to prove the tenant’s possession. Higbee v. Rice, 5 Mass. 352 ; Washington Bank v. Brown, 2 Met. 293.

Exceptions overruled.  