
    Benjamin Marshall vs. Nathan Wood et al.
    Addison,
    
      January, 1833
    A promissory note, described in the condition of a mortgage, need not be produced on the trial of an action of ejeetment brought on such mortgago ; provided the equity of redemption had been released by the mortgagor to tho mortgagee in satisfaction of the note.
    Where the release of the equity of redemption is by a warrantee deed, the mortgage is not merged in such deed, where- it is not for the interest of Ilia mortgagee to have it. merge.
    To bring an action of ejectment against several persons,, who occupy different rooms in the plaintiff’s building, is not a misjoinder of defendants — ea-ab may plead severally not guilty as to the room which he occupies, and duclaim^ at to every other room.
    The effect of a disclaimer at common law.
    This action was brought against Wood, Seymour and others, who occupied a certain building situated on land to which the plaintiff claimed title by virtue of two several mortgage deeds, executed and delivered by one James W. Stephens, the former owner. — One of them to a man named Grimshaw, dated the 14th day of December, 1825, and assigned to the plaintiff the 5th day of October, 1827 — the other to a man named Boisgerard, dated the 18th day of February, 1S26, and assigned to the plaintiff the 25th'day September, 1827.
    It appeared, that after the execution of said' mortgage. deeds, and while Stephens remained in possession, to wit, in the fall of the year 1S27, he made a verbal agreement with one Joseph Hough, by which Hough was to erect the building, and use it for five years ; after which he was to take it off from the land, or receive for it the sum of ‡ 1000. It further appeared, that after the building was erected by Hough, to wit, on the 12th day of August, 1826, Stevens conveyedjall his real estate, including this, to one Ira Stewart and others, in trust, for the benefit of certain of his creditors; and that the said Stewart subsequently, on the 12th day of July, 1830, procured to himself in his own right a deed from Hough of the building; and afterwards, on the 11th day of October, 1830, conveyed one moiety of the same to Nathan Wood, one of the defendants.
    It further appeared, that said Stewart, and one of the other persons named in the trust deed, on the 16th day of May, 1S31, conveyed tojthe plaintiff, Marshall, their right of redemption, in the whole of the mortgaged premises, which had been assigned to them in the manner above mentioned, and gave said Marshall possession thereof. They also conveyed, at the same time, to said Marshall, other property not included in the mortgage, to the amount of $4000; and'it was then agreed between the parties to the conveyance, that Marshall should hold and own, three-fifths of the property thus conveyed to him on account of his mortgages, and that Stewart, the acting trustee, should have and hold the other two-fifths.
    It appeared, that while the building was occupied by Hough, and until the commencement of the suit, it had been occupied in a separate and distinct manner — one part for a lawyer’s office, and the other part for a store ; and that Seymour, one of the defendants, was a lawyer, and had occupied the office under Hough & Wood, — the other defendant had occupied the store under the trustees, and by an agreement with said Steioart, without any connexion or pri-vity whatever, and were so occupying when the trustees deeded to Marshall as aforesaid.
    The case was tried by the Court by consent of parties, and the counsel for the defendant requested the Court to decide.
    
      Fifst,. That under the above circumstances, it was incumbent on the plaintiff to produce the obligations secured by the ..mortgage, or they would be presumed paid or can-celled and'taken up ; or, at least, necessary to explain why they were not produced.
    Second, That whatever name the parties might have given to the conveyance to Marshall, that circumstance and the contract connected with it, was prima facie an ex-tinguishment of the mortgage.
    Third, And that the plaintiff could not join different persons in the same suit between whom there had been no privity, concert or connexion in the possession of the different apartments of said building.
    But the Court decided in favor of the plaintiff upon each of the above points. To which the defendants made the exceptions which are now presented for Ike consideration of the Court.
    
      Counsel for dejendanis contended,
    1st, That it was incumbent upon the plaintiff to produce the obligations secured by the mortgages, or they would be presumed paid and cancelled, or taken up ; or it was at least necegssary for the plaintiff to explain why they were not produced. — 3 Vt. Rep. 202, Edgell vs. Stanford.
    
    2d, That whatever name the parties might have given to the conveyance to Marshall, that circumstance and the contract connected with it, was prima facie an extinguishment of the mortgages.
    3d, That the plaintiff could not join different persons in the same suit between whom there had been no privity, concert or connexion in the possession of the different apartments of said building.
    
      Counsel for plaintiff. — The mortgages in favor of Grim-shaw’and Boisgerard, executed by James W. Stephens, and which included the premises in question, had been assigned to the plaintiff long previous to May, 1831 ; and on the 2d of May, 1831, the plaintiff received possession of the mortgaged premises from the assignees of said Stevens; and on the 16th of May, 1831, the assignees quit-claimed the same premises to the plaintiff, in whom the title still remains.
    
      1st. A release of the equity of redemption by the mortgagor, does not discharge the title of the mortgagee under the mortgage, even though the notes or bonds secured by the mortgage be given up to the mortgagor.— See 6 Con. Rep. 375, Lockwood vs. Siurtevant..
    
    2d, The deed of one half the store from Stewart to Wood (which did not include the land on which it stood) was subject to the rights of the assignees, and was liable ■ to be disposed of by them under the trust deed.
    3d, The action is well brought against all the tenants in possession. — See Stat. p. 85, sec. 39. The tenants cam disclaim for such part of the premises as they are not-in possession of.
   The opinion of the Court was delivered by

Baylies, J.

The defendant’s counsel requested the Court to decide; 1st. That under the above circumstances, it was incumbent on the plaintiff to produce the obligations secured by the mortgage, or they would be presumed paid, or cancelled, and taken up ; or at least, it was necessary to explain why they were not produced.

When the equity of redemption is foreclosed by a decree of a Court of Chancery, oris released by the mortgagor, or by his assignee, to the mortgagee, or to his assignee, the title, which was conditional, becomes absolute; and it cannot be necssary, for the mortgagee, or his assignee, to preserve the note, which is described in the condition of the mortgage, to keep good h;s title; nor produce the note to maintain .ejectment brought on the mortgage. The presumption is, that if the mortgagor released his equity of redemption to satisfy the note, the note was given up to him by the mortgagee, at the time, to be cancelled. But if the mortgagor has never released his equity of redemption, this presumption cannot arise ; and if the mortgagee is unable to produce the note, the presumption is, that the morgagor has paid it, and taken it up; not by a release of the equity of redemption, but in some other way. It was on this presumption, that a majority of this Court decided, that the mortgagee could not maintain ejectment against the mortgagor, without producing the note described in the condition of the mortgage. See Edgell vs. Stanford, 3 Yt. R. 202. But this decision is not applicable to the case at bar.

Second Request: To decide that whatever name the * parties might have given to the conveyance to Marshall, that circumstance, and the contract connected with it was, prima facie an extinguishment of the mortgages.

It has been often decided, that where the mortgagor has by deed conveyed his equity of redemption to the mortgagee in satisfaction of the note described in the condition of the mortgage, the mortgage becomes an absolute title, and is not merged in the conveyance of the equity of redemption, if such merger would operate to the injury of tho mortgagee. See 1 Chip. 448; 2 Con. Rep. 161; 6 Con. Rep. 3S8-9; 3 J. C. R. 53. The County Court did not err in disregarding this request.

Third. That the plaintiff could not join different persons in the same writ between whom there had been no privity, concert, or connexion in the possession of the different apartments of said building,

The plaintiff having bought the building in question, and having found the defendants in possession, was not obliged to enquire how they came there ; nor what division of his property, they had made among themselves ; but he might bring his.action against them all, jointly; and if any one does not choose to be responsible for the others, ns to the rents and profits, he may plead severally, not guilty, as to that part of the building in his possession, and disclaim as to every other part. Or- if he was in possession of no part of the building, when the writ was served, he may disclaim as to the whole. This proceeding i n ejectment is allowed by Statute,Chap. 7, p. 89, which says, “ The writ shall not be abated because all the tenants are not sued ; but those on whom service is made, shall an - swer for such part of the premises only as he, she or they shall distinguish, and set forth in his, her or their plea, aqd disclaim the remainder. And if any shall disclaim the whole unless the plaintiff shall prove such disclaimerb possession,of alitor part'of the premises demanded, such disclaimer shall recover costs against the plaintiff.” The word, “ disclaimer,” in the Statute, is improperly used for defendant. vt'

The notion of a disclaimer in our action of ejeótment seems to have been borrowed from the common law proceedings in real actions.

Bates, for defendants.

Phelps & Bell & Starr, for plaintiffs.

“ But as a disclaimer was never at common law, pleaded in bar of the action ; so neither was it, strictly speaking, a plea in abatement. It did not give the demandant a better writ. It contained no traversable fact.) It was, in effect, an offer by the tenant to yield to the claim of the deman-dant, and to admit his title to the land.” See Stearns on Real Actions, 223.

Whether a disclaimer under our Statute does in its effects differ from a'common law disclaimer, we are not called upon to decide. But we are all satisfied, that in this action there was no misjoinder of defendants.

The judgement of the County Court is affirmed.  