
    Joseph Forster versus John Mellen.
    1 he purchaser of an equity of redemption can aver no seisin or title against any other person than the execution debtor or his immediate tenants or assigns.
    This was a writ of entry sur disseisin, in which the demandant counts on his own seisin within thirty years, and on a disseisin by the tenant.
    The action was submitted to the determination of the Court upon the following facts, stated and agreed by the parties: —
    On the 15th of December, 1806, one Oliver Hildreth, being seised in fee of the demanded premises, mortgaged the same to Mellen, the tenant, to secure the payment of 500 dollars and interest within one year; and on the 29th day of April, 1807, further mortgaged the same premises to the tenant, to secure the payment of 300 dollars by the 15th day of December, 1807. The said Hildreth, by deed, dated July 18, 1807, conveyed the same [*422 ] premises to one John * Putnam, subject to the aforesaid mortgages to Mellen; and on the 23d day of July, 1807, the said Putnam, mortgaged the premises, with other land, to Mellen, to secure the payment of 1500 dollars, and a further sum of 837 dollars, with interest. On the 24th day of the same July, Mellen, the tenant, discharged the aforesaid mortgages from Hildreth to him, acknowledging to have received the full sums secured by the same. The aforesaid deeds and discharges were duly registered. The sums of money secured by Hildreth’s mortgages to Mellen were included in, and made a part of, the sums secured to the latter by Putnam’s mortgage.
    The said Hildreth, being justly indebted to the demandant in the sum of 400 dollars, on the 16th day of March, 1807, made his promissory note for that sum, payable to the demandant, or order, on demand, with interest; which note the demandant, on the same day, for value received, endorsed to one Benjamin Champ-71 ey, who, on the 13th day of May, 1807, commenced an action thereon against Hildreth, and on the 18th day of the same May, caused the said Hildreth’s estate in the demanded premises, then under the aforesaid mortgages of Hildreth to Mellen, to be attached on the original writ in said suit. Champmey recovered final judgment in his said suit against Hildreth at the Court of Common Pleas in December, 1807, and within thirty days after the rendition of the judgment, caused his execution to be extended on the said HUdreth’s right in equity to redeem the said demanded premises, which were advertised for sale by the officer, and by him sold to the pres ent demandant for the sum of 460 dollars, he being the highest bid» der; and a deed of the same was duly executed by the officer, and recorded. Neither Champney, nor the officer who extended the execution, had any knowledge that Mellen had discharged Hildreth’s mortgages to him, until more than thirty days after the rendition of the judgment aforesaid. The demandant duly entered upon the demanded premises, after the execution of the officer’s deed to him, and before the commencement of the present action.
    * If, upon these facts, the Court should be of opinion [ * 423 ] that the demandant ought by law to recover possession of the demanded premises, the tenant agreed to be defaulted, and that judgment be rendered for the demandant accordingly; otherwise the demandant agreed to become nonsuit, and that the tenant should have judgment for his costs.
    
      Abbot, for the demandant.
    The right which Champney caused to be attached was Hildreth’s right to be reseised of the premises, as soon as Mellen’s mortgages were paid off and discharged. This was all the estate that then remained in Hildreth; for while the mortgages remained uncancelled, the seisin of the estate was in the mortgagee. 
    
    And there cannot be a concurrent seisin.  As soon, therefore, as the mortgage was discharged, by the provisions of the statute of 1799, c. 73, the purchaser of the equity of redemption, who, in this case, is the demandant, under his deed from the officer, by relation to the attachment, became seised of the legal estate, or had a right of entry against all persons in possession; and having made an actual entry, may maintain this action, counting on his own seisin.
    Perhaps this reasoning would not be questioned, supposing the mortgage to be paid off and discharged, even before the sale, at any time after a seizure of the equity of redemption by the officer on execution. Will the case differ, if the mortgage were discharged by the mortgagee, before a seizure of the equity in execution? If it will, and the reason be that no equity exists, in fact, at the time of its supposed seizure, then it follows that a debtor, or other person connected with him, may compel a creditor to acquire an estate different from that which would necessarily result from his attachment, or entirely lose it; so that the nature of a creditor’s lien on real property by attachment may, by a debtor or other person, be changed against his will. A creditor’s interest in lands taken by execution must, then, have relation to the time of the attachment, and not of the seizure in execution.
    * It is no objection to this reasoning, that, in a case [ * 424 / like the present, the debtor’s land may be sold for less than its value, since he has, for three years after the sale, a right to redeem by pay ing the purchaser the money justly due in consequence of such sale
    
      Fay for the tenant.
    The action stood continued nisi for advisement, and at the next March term in Suffolk judgment was pronounced for the tenant.
    
      
       3 Mass. Rep. 152— 7 Mass. Rep. 139.
    
    
      
       3 Mass. Rep. 219.
    
   Sewall, J.

This mode of extent, provided by statute, applies only to the case of an equity of redemption ; that is, the title or interest of the mortgagor in lands which have been conveyed and are holden by a subsisting mortgage. The sale is to be made with reference to the prior encumbrances ; and if it produces more than the sum to be levied, with the expenses, the surplus is to be paid to the judgment debtor. And he retains a right of redeeming against the purchaser for three years, by paying the sum satisfied on the execution, with the interest, and also such sums as the purchaser may have paid to the mortgagee, deducting the rents and profits.

If there was in the case at bar no subsisting mortgage, other than the charge by Putnam, under his title created after the attachment by Champney, then an extent by appraisement, within thirty daya after the judgment, was the only course for Champney to take, in order to avail himself of his prior attachment. And a levy and sale, as of an equity of redemption, was without authority of law, and wholly without effect.

It becomes, therefore, necessary to the title of the demandant, and be must insist upon the continuance of the mortgages of Hildreth to Mellen, if the sale by the officer made a title to the demandant., the purchaser. For then he has a right in equity, which may entitle him to a remedy by process in equity, to redeem against those mortgages. But in that case he has no title to the possession against the mortgagee, or against Putnam’s assignee. [ * 425 ] * Mellen is either the mortgagee, notwithstanding the discharge, or the assignee of Putnam, to whose use and benefit the mortgages are to be regarded as subsisting encumbrances. And it is impossible to consider this demandant as acquiring an equitable title in consequence of the conveyance, and at the same time to consider those mortgages as extinguished and defeated, without any expense to him. Even upon the supposition which might be made, that the mortgage had been redeemed by Hildreth, the mortgagor and execution debtor, if the demandant has any title at all, it must be because the encumbrances are still subsisting for the use and benefit of the mortgagor, and to secure to him the reimbursement of his money, paid, in that case, for the use of the demandant.

The demandant comes in the right of the mortgagor, and cannot claim against the effect of his deeds to the tenant, who is, if the demandant has any title or pretence of title, a mortgagee in possession, or the assignee of a subsisting mortgage, originally made to himself, and, as to this demandant, claiming under mortgages not redeemed or discharged, and subject to which his title was acquired. Perhaps it may be stated, as a general rule, applying in all cases of this kind, that the purchaser of an equity of redemption can aver no' seisin or title against any other person than the execution debtor, or his immediate tenants or assigns.

The demandant might recover, therefore, against Putnam., if he had been in possession by virtue of his deed from Hildreth, and supposing the mortgages to remain due to Mellen; but he cannot recover against Mellen, for either he is still the mortgagee, or he claims under a purchaser of the mortgage, or under some one who has redeemed the encumbrance for the use of the present demand-ant ; and until that is redeemed, the demandant has no seisin or title. According to the agreement under which this case comes before us, the demandant must therefore be called,

Demandant nonsuit. 
      
      
         [ Warren vs. Child, 11 Mass. Rep. 222.— White vs. Bond, 16 Mass. Rep. 400. Chickering vs. Lovejoy & Al. 13 Mass. Rep. 51. — Stat. 1815, c. 137, sec. 3. — Ed.]
     