Thunder v. Belcher, 3 East's R. 449. Doe v. Giles, 4 Bing. R. 421. Patridge v. Beere, 5 Barn. & Adolph. R. 604.) But in some of the United States it has been held that the mortgagor is entitled to a notice to quit previous to bringing an action of ejectment by the mortgagee. (Jackson v. Longhead, 2 Johns. R. 75. Jackson v. Green, 4 ib. 186.) The question, therefore, in respect to the necessity of the notice to quit before the action is brought by the mortgagee would seem to be unsettled; and therefore the safer way would be to give the notice and be prepared to prove it on the trial.

If the action is against a grantee or lessee of the mortgagor, the case is made out for the plaintiff by the production and proof of the mortgage, which the defendant is estopped to deny; it must appear, however, in case the action is against an under lessee of the mortgagor, that the lessee was let into the possession by the mortgagor subsequently to the mortgage, and without the privity of the mortgagee. If the tenancy was created prior to the mortgage, the position of the mortgagee is the same as that of the mortgagor before the mortgage was made; and in that case the plaintiff must prove that the tenancy has been determined. Where the tenant in possession holds under the mortgagor by lease subsequent to the mortgage, or where he is a purchaser from the mortgagor, all the authorities agree that the defendant is not entitled to notice to quit, and none need be proved on the trial, because the relationship of landlord and tenant, in those cases, does not exist between the defendant and the mortgagee. (Jackson v. Chase, 2 Johns. R. 84. Jackson v. Fuller, 4 ib. 215. Jackson v. Stackhouse, 1 Cow. R. 122. Den v. Stockton, 7 Halst. R. 322.) And where the mortgage has been foreclosed by advertisement, the mortgagor in possession is held not to be entitled to a notice to quit from the purchaser under the mortgage foreclosure. In that case there is no privity, nor any thing like the relation of landlord and tenant subsisting between the parties; at all events the notice of sale under the power contained in the mortgage is held to be equivalent to the notice to quit. (Jackson v. Colden, 4 Cow. R. 266. Bennet v. Lamsen, 7 Johns. R. 300.)

Where the mortgage contains a proviso that the mortgagor may remain in possession until the condition is broken, it will be necessary for the plaintiff to prove a breach. (Hall v. Doe, 5 Barn. & Adolph. R. 687.) But it has been held, that, where a

plaintiff claims to recover premises under a mortgage as forfeited, it is enough that it appear that there is a mortgage, and that from its terms the day of payment was past at the commencement of the suit. This is sufficient without proving affirmatively that the debt secured by the mortgage has not been paid. If the debt has been paid, the defendant may prove it, and that is a good defense to the action. (Rogers v. The Eagle Fire Insurance Company of New York, 9 Wend. R. 611. Jackson v. Stackhouse, 1 Cow. R. 122.) The presumption is, that money promised to be paid is unpaid, until the statute of limitations has fully run upon the demand; and, hence, where it appears that a payment is due upon a mortgage, proof of the mortgage is all that is required of the plaintiff in the first instance, and then the default and forfeiture will be presumed; of course circumstances may be shown under which the mortgage may be presumed satisfied; but nothing appearing to the contrary, the presumption is that the money remains unpaid, which must be overcome by proof from the party on whom the payment of the money due upon the mortgage devolved. In no case is it incumbent on the plaintiff to prove the defendant's default by non-performance of the condition, but' the defendant, if he can, may prove in his defense the condition performed.

In case the ejectment is against a third person, who holds the mortgaged lands as tenant to the mortgagor, it will be necessary to give evidence in addition to proof of the mortgage of the tenancy, and either that the same has been determined, or that it was created by the mortgagor subsequently to the execution of the mortgage, although as before averred in such case, no notice to quit is made necessary.

When the assignee of a mortgagee is the claimant, the proofs will be the same as when the mortgagee is himself the plaintiff, with the additional proof of the derivative title of the assignee from the mortgagee; that is to say the additional proof that the mortgage was duly assigned by the mortgagee to the plaintiff, before the commencement of the action. (Den v. Van Ness, 5 Halst. R. 102.) If the action be brought by the mortgagee or his assignee, against a person holding adversely to the title of the claimant, the plaintiff must establish his title by proof, that is to say, in such case the claimant must prove the title of the mortgagor to the mortgaged premises at the time of the execution of the mortgage.

But if it appear that the defendant is in reality defending the action for the benefit of the mortgagor, or of some person claiming under such mortgagor, he will be subject to the same rules with regard to the proofs, and be estopped in the same manner from disputing the mortgagee's title, as the mortgagor himself. (Doe v. Clifton, 4 Adolph. & Ell. R. 813.)

Where the mortgage was by lease and release, and the release reoited that the releasor was legally or equitably entitled to the premises conveyed, and he covenanted that he was lawfully or equitably seised in his demesne of and in the premises, and otherwise well entitled to the same, and the legal estate was subsequently conveyed to him; and he afterward, for a valuable consideration, conveyed the same to a third party; upon ejectment brought by the mortgagee against such third party, it was held that, there being in the release no certain or precise averment of any seisin in the releasor, but only a recital or covenant that he was legally or equitably entitled, the defendant was not estopped from setting up the legal estate acquired by him after execution of the release. The court also held that the release did not operate as an estoppel by virtue of the words, "granted, bargained, sold, aliened, remised, released," etc., because the release passed nothing but what the releasor had at the time, and he had not the legal title in the premises at the time of the release. It was also held that the case did not fall within the rule, that a mortgagor cannot dispute the title of his mortgagee, because the party claimed, as a purchaser for a valuable consideration without notice, a legal interest which was not in the mortgagor at the time of the mortgage, he having at that time an equitable interest only, to which his title was not disputed. (Right v. Bucknell, 2 Barn. & Adolph. R. 278.)

In an action of ejectment by a mortgagee against a mortgagor, the latter may set up an eviction under a paramount title in bar of a recovery; and though the mortgagor has become a purchaser under such hostile title, and remains in possession of the mortgaged premises, the mortgagee is not entitled to recover; that is to say, an action for the land, as.escheated, being brought by the people against the mortgagor in possession, he gave notice of it to the mortgagee, who refused to defend; the court held that the mortgagor might confess judgment, and take title under it, and that the mortgagee could not avail himself of the usual rule of estoppel as between mortgagor and mortgagee, to sustain his action against

the mortgagor in possession. (Jackson v. Marsh, 5 Wend. R. 44.) But where one having a defective title, mortgaged the land and continued in possession, and afterward a lease was granted to him by the real owner in pursuance of an award, the court held that the mortgagor could not set up such lease as an answer to an ejectment brought by the mortgagee. There it was decided that the usual principle of estoppel would apply. (Doe v. Vickers, 4 Adolph. & Ell. R. 782.) It may be stated that the possession of the mortgagor must be presumed in all cases to be in subordination to the title of the mortgagee until the contrary is shown; so that prima facie the principle of estoppel always applies in such cases. (Conner v. Whitmore, 52 Maine R. 185.)

It has been held, that a sale of mortgaged premises under execution at law, for a part of the mortgaged debt, by the direction or with the knowledge and consent of the mortgagor and his reception of the proceeds of the sale from the sheriff, do not discharge the lien of the mortgage, or estop the mortgagee or a subsequent purchaser at the mortgage sale, with notice of the facts, from recovering the land in an action at law. (Barker v. Bell, 37 Ala. R. 354.) And it has also been held in Alabama, that the mortgagor's equity of redemption cannot be sold on execution at law, for the whole is a part of the mortgage debt; and the effect of the decision is, that a sale of the property, under such execution, passes nothing to the purchaser. (Powell v. Williams, 14 Ala. R. 476.) And a similar doctrine has been recognized in other states, where it has been decided that when a creditor, secured by mortgage, brings his action for the debt secured, recovers judgment, and issues execution, which is levied by his direction on the mortgaged premises, and the same are sold under such execution to a purchaser having notice of the mortgage, the latter acquires nothing but the equity of redemption, and the mortgagee may recover the possession by action at law. (Ireland v. Hall, 10 Johns. R. 481. Vide, also, Goring v. Shreer, 7 Dana's R. 65. Swegest v. Thomas, Ib. 221. Brewston v. Robinson, 4 B. Mon. R. 142. Camp v. Cox, 1 Dev. & Batt. L. R. 52. Atkins v. Sawyer, 1 Pick. R. 351.) After the law-day of the mortgage the legal estate is absolutely vested in the mortgagee: the mortgagor has nothing left but an equity of redemption. (Paulling v. Barron, 32 Ala. R. 11.) It follows, therefore, that a sale of the mortgaged property, under execution for the mortgage debt, is wholly ineffectual as a conveyance of title

to the purchaser, unless there has been a surrender by the mortgagee of the legal title, with which, after the law-day, he is clothed by the mortgage. It is only by virtue of such surrender that the mortgagee can have a title subject to levy and sale under such an execution. (Barker v. Bell, 37 Ala. R. 354.)

It has been held in Illinois, that where a mortgagee elects to consider his mortgagor in possession after condition broken, as his tenant, he is a tenant at sufferance and not entitled to notice to quit, and that a purchaser from the mortgagor would be in no better condition than his vendor; he must hold in the same capacity as his vendor held, to whose rights he succeeded. So that in such case, where the mortgagee brings his action to recover the lands under his mortgage, whether against the mortgagor or his grantee, all that is necessary to prove on the trial, to enable him to recover, is, his mortgage and the defendant in possession at the time the action was commenced. (Carroll v. Balance, 26 Ill. R. 9. Jackson v. Warren, 32 ib. 331.)

When a second mortgagee, after forfeiture for default in the payment of the money secured, brings his action to recover the possession of the mortgaged premises, he is entitled to recover on proof of his mortgage, and the defendant in possession; and the action cannot be defeated by proof of a prior outstanding mortgage. An outstanding mortgage in a stranger cannot be set up to defeat a plaintiff, or show that he has no title; one who has himself no rights, either as mortgagee or assignee, cannot set up a mortgage that may happen to be outstanding in favor of some third person. And whether the defendant has such an interest in the land as will enable him to redeem, and thus acquire the rights of an assignee of the mortgage, can make no difference. Until he does redeem he is as much a stranger to the mortgage as if he had no interest in the land. (Savage v. Dooley, 28 Conn. R. 411. But vide Porter v. Seeley, 13 ib. 564. Burr v. Spencer, 26 ib. 159. Smith v. Vincent, 15 ib. 1.)

The relationship existing between a mortgagor in possession and the mortgagor is somewhat peculiar. The mortgagor in possession has been called sometimes a tenant at will to the mortgagee, or a tenant at sufferance, or like a tenant at will; but he is never designated as a tenant for any term. Lord Ellenborough called him a tenant at sufferance. (Thunder v. Belcher, 3 East's R. 449.) And Lord Tenterden said: "The mortgagor is not in the situation