
    Richard Olney versus Jonathan Adams et al.
    
    
      Oct. 1st.
    
      Oct. 3d.
    
    A mortgager may plead a disclaimer in bar to a writ of entry to foreclose brought against him after he has assigned his right to redeem.
    This was a writ of entry brought to foreclose a mortgage df twenty thirty-seventh parts of certain real estate. The defendants being seised of the demanded premises, conveyed the same to the plaintiff in fee and in mortgage, and the right in equity to redeem was transferred, through mesne conveyances, to S. Lovett and others, who were tenants in common of the other seventeen thirty-seventh parts of the land. Service was made on Lovett, the tenant then and ever since in possession of the demanded premises, claiming for himself and as agent of the other purchasers of the equity of redemption. The defendants pleaded a disclaimer in bar.
    Newton, for the tenants.
    The question is, whether in an action to foreclose a mortgage the mortgager may plead in bar a disclaimer This is a real action, and it differs from other real actions in only these two respects : first, it lies against any per son in possession, he not being permitted to say that he is not seised of a freehold estate; and secondly, the judgment is conditional. But these differences have no bearing upon the principle upon which a disclaimer is pleaded, namely, that a person not in possession cannot render possession. The action ought to have been against the person in possession. Taylor v. Porter, 7 Mass. R. 355 ; Keith v. Swan, 11 Mass. R. 216 ; Somes v. Skinner, 3 Pick. 63 This case comes within St. 1795, c. 75, § 2.
    
      Prentiss, contra,
    relied on the circumstance that this action differs from a real action and is not governed by the same strict rules. Penniman v. Hollis, 13 Mass. R. 430 ; Green v. Kemp, ibid. 516. If this action is not sustained, the demandant has no remedy against any one, for the person in possession is a tenant in common.
   Per Curiam.

The action cannot be maintained against the mortgager, who had transferred all his right and interest in the land, and was not in possession. We see no difficulty in bringing the action against a tenant in common who has purchased the equity of redemption. 
      
       See Revised Stat. c. 107, § 8, where it is provided, that the mortgager may be joined as defendant in all eases of this kind, whether at the time he has transferred his interest in the estate or not. See also Hunt v. Hunt, 17 Pick. 118.
     