
    Samuel Porter versus Thomas Millet.
    The sale of an equity of redemption, by the sheriff on execution, gives to the put chaser a seisin of the land against a stranger in possession ; a fortiori it gives a right of action at law for the land against the mortgagee himself, after payment or tender of the money due on the mortgage.
    Where one conveyed land in fee, and took from the purchaser a bond to reconvey the premises, his assignment of the bond (neither the bond nor the assignment being recorded) was held not to convey the equity of redemption.
    Entry sur disseisin. Samuel Porter demands possession of certain lands in Freeport, in this county, described in his writ, alleging that he became seised thereof in the following manner, viz.: That the tenant, Thomas Millet, on the 6th day of May, 1805, being seised of the demanded premises in his demesne as of fee, conveyed the same, by his deed of bargain and sale, in consideration of 130 dollars, to one Jacob Johnson, who, on the same day, executed and delivered to the tenant a bond in the penal sum of 260 dollars, with condition to reconvey the premises, recited therein to have been conveyed to the said Johnson, *as security for a debt of 130 dollars due to him from Millet on demand. The condition of the bond is, that if the said sum be paid within one year, and the obligee, his heirs, &c., shall refuse to reconvey the premises to Millet, then the bond shall remain in force; otherwise be void. Whereby, as the demandant alleges, the said Johnson became seised in fee and in mortgage; and being so seised, conveyed the same, on the 13th day of September, 1808, to one Abraham Reed, who, on the 3d day of May, 1809, conveyed the same to one Israel Millet, who thereby became seised in fee and in mortgage, the equity of redemption remaining in Thomas Millet, the tenant. The demandant then alleges that he, together with Leonard Morse and Seward Porter, having recovered a judgment against the said Thomas Millet, sued out their execution, and delivered the same to one Josiah Reed, a deputy sheriff, who, on the 19th day of April, 1809, seized the equity of redemption as belonging to Thomas Millet, and after having given the legal notice, and pursued in all respects the requirements of the law in this respect, on the 22d day of May, 1809, sold the same at public vendue to the demandant, and executed and delivered to him a deed of bargain and sale thereof; — and that he, having tendered to Israel Millet, the tenant in mortgage, the sum due to him, which he refused to accept, became seised of the land, of which the tenant has disseised him.
    The action was tried upon the general issue, at an adjourned session after October term, 1810, before Thatcher, J., from whose report it appears that the regular evidence, to prove all the aforesaid allegations, was produced; and it appears further from that report, that on the 10th day of April, 1809, the tenant assigned to the said Israel Millet the bond of defeasance, which had been made to him by Johnson; neither the bond nor the assignment thereof having been recorded.
    A verdict was taken for the demandant by consent, subject to the opinion of the Court, on the facts reported by the * judge who sat in the trial; it being agreed that if the Court should be of opinion that the defendant was entitled to recover in this action, judgment should be entered on the verdict; otherwise the verdict should be set aside, and the demand-ant become nonsuit.
    The cause was argued at the last May term in this county, by Whitman and Mitchell for the demandant, and Longfellow and Cutler for the tenant; and being continued for advisement, the opinion of the Court was delivered at this term by
   Parker, J.

Several objections have been taken to the verdict which was returned for the demandant.

It was insisted, in the first place, that by the transactions reported by the judge, the demandant did not acquire a legal seisin of the land, so that he can maintain an action for the possession; but only a right in equity, to be enforced- by bill.

But this point was settled on full consideration in the case of Willington vs. Gale. In that case, it was determined that a sheriff’s sale of an equity, and his deed pursuant thereto, gave the purchaser a seisin of the land against any stranger who might be in possession; a fortiori it gives a right of action for the land itself against the mortgagee himself; it being expressly provided by the statute that such proceedings shall transfer to the purchaser all the right which the mortgagor had in the land,

It was also contended for the tenant, that the assignment of the bond to Israel Millet, the assignee of the mortgage deed, extin guished the equity of redemption, so that Israel Millet, before the seizure in execution, became the absolute and indefeasible owner of the land.

But we are not of this opinion. Thomas Millet, having a good subsisting interest in the land, viz., a right to redeem it by discharging the encumbrance, could not part with it voluntarily, except by the ordinary forms of conveyance. The bond was a chose in action, not assignable, and cannot be converted into a conveyanee or release of *the equity. Besides, Israel Millet was not in possession of the land; and therefore a mere release could not operate. But in addition to this objection, the assignment of this bond was not registered, and the possession remained in Thomas Millet, the mortgagor. This attempt to convey the equity would, by the principles of our statutes respecting the transfer of real estate, be void against creditors,

The opinion of the Court upon the whole matter is, that the verdict is right, and that judgment must be entered thereon for the demandant. 
      
       7 Mass. Rep. 138.
     
      
      
        Stat. 1783, c. 57, § 4.
     
      
      
         [This is only an equitable right; and by the English common law, no action of ejectment in such case could be maintained. — 1 Cov. Pow. Mort. 261. — Ed.]
     
      
      
         [Why was a release necessary ? If the legal estate was already in Israel Millet, and if the bond of defeasance was assigned or even delivered to him bona fide, for an adequate consideration, with the intention to perfect a title in him, which is taken for granted by the Court, were not all the legal and equitable rights and remedies of the tenant thereby extinguished ? In Harrison & Al. vs. The Trustees of Phillips Academy, (12 Mass. Rep. 456,) Parker, C. J., in giving the opinion of the Court, said, they could see no reason, if the mortgage was by absolute deed and defeasance, why the mortgagor might not surrender his bond, and thus give an unconditional estate to the moitgagee. Could it make any difference that the bond was assigned or delivered to the assignee of the deed ? From the facts as reported, indeed, it seems that the bond was assigned before, and the conveyance to Israel Millet by Reed was after the seizure by virtue of the execution, though this is not particularly noticed by the Court, who speak of Israel Millet as being the assignee of the mortgage, as they call it, as well aa of the bond before the seizure. But if the bond only were then assigned, Thomas Millet had thereby parted with all equitable claims to the estate, and he had, long before, parted with all his legal interest therein by the absolute deed to Johnson, The Court say Israel Millet was not in possession, and lay stress upon that assumption. But if that could be material, was not the possession of Thomas Millet, the possession of the mortgagee, so called, or of his assignee ? Above all, why was it necessary that a record should have been made of the assignment of the bond, which does not appear to have been recorded, in order to pass the equitable interest of the tenant to Israel Millet, even against creditors ? — Ed.]
     