104 Mass. 249
Mass.
1870
Morton, J.

This case comes before us upon a report under the St. of 1869, c. 438. We can consider only the questions ‍​​​​​​‌‌‌​‌​​​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​​​​‌‌​​‌​​‌​​‌‍of law raised in the report.

1. The first question is, whether the plaintiffs can unite in this action. The three mortgages to the plaintiffs are of the same date, were delivered simultaneously, and each contains the provision that “ this mortgage is of the same date, given at the same time, and to be recorded with ” the two other mortgages, “ all of which are alike in time, and neither is to have precedence of the other, but to be alike security to eаch.” We cannot doubt that the rights of the mortgagees are the same as if they had been mаde parties to one mortgage, to secure to each his separate debt, аnd that the three mortgages are to be treated as substantially one conveyance. This being so, the plaintiffs were tenants in common of the property conveyed by the mortgаges. Hubby v. Hubby, 5 Cush. 516. Burnett v. Pratt, 22 Pick. 556. As such tenants in common, they may join in ‍​​​​​​‌‌‌​‌​​​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​​​​‌‌​​‌​​‌​​‌‍an action of tort for the conversion of the property. Phillips v. Cummings, 11 Cush. 469. Gilmore v. Wilbur, 12 Pick. 120. Sherman v. Fall River Iron Works Co. 5 Allen, 213.

2. The second question is, whether the mortgages of the plaintiffs have precedence over the previous mortgage given to Chase, the defendant. The plaintiffs claim that, as the mortgage to Chase was not, at the date of their mortgages, recordеd in Malden, where one of the mortgagors resided, it is invalid as to them. This would be true, if the plaintiffs had tаken a eonreyanee of the property itself, although they had notice of the рrior unrecorded mortgage to Chase. Bingham v. Jordan, 1 Allen, 373. Travis v. Bishop, 13 Met. 304. But the mortgages to the plaintiffs, reasonably construed, are conveyances to them, not of the property, but merely of the right which the mortgagors had to redeem it from the Chase mortgage. Each of the mortgages contains the provision that the property is ‍​​​​​​‌‌‌​‌​​​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​​​​‌‌​​‌​​‌​​‌‍“ subject to a mortgage to Silas E. Chase for about $10,000; ” and it is аdmitted that the parties understood the mortgage, referred to in this clause, to be the samе mortgage under which the defendant claims in this action. The Chase mortgage, though not *252duly recorded, was valid against the mortgagors. They could not, without a fraud upon him, convey anything more than the equity of redemption. It seems to us clear that by the mortgages to the plaintiffs the mortgаgors did not intend to convey, and that the plaintiffs did not understand that they were purchasing, the prоperty itself, but merely the right to redeem. The legal effect of the conveyances is thе same as if they had been, in terms, of the right of the mortgagors to redeem the Chase mortgage. Such construction carries out the clear intentions of the parties. This being so, the plaintiffs take no greater rights than the mortgagors had, and therefore cannot deny the validity of thе Chase mortgage. They stand in the place of the mortgagors, having the same rights, and thus comе within the exception of the statute which provides that unrecorded mortgages “ shall not bе valid against any person other than the parties thereto.” Gen. Sts. c. 151, § 1. Tuite v. Stevens, 98 Mass. 305. Green v. Kemp, 13 Mass. 515. We are of opinion, therefore, that the mortgages to the plaintiffs ‍​​​​​​‌‌‌​‌​​​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​​​​‌‌​​‌​​‌​​‌‍do not take precedence of the mortgage to the defendant.

3. The third question is, whether the plaintiffs can maintain this action, having made no tender to Chase of the amount due on his mortgage. It is clear that the plaintiffs cannot maintain this action for the conversion of the property included in the Chase mortgage. The mortgage to Chase provides that, if the mortgagors shall attempt to sell thе property, or any part thereof, or remove any part thereof, without the written аssent of the mortgagee, he may take immediate possession of the property. Under this provision, the sale to the plaintiffs gave the defendant the right to take possession ; and it follows that the plaintiffs had no right of possession which would enable them to maintain this actiоn without a payment or tender of the amount due the defendant. But the plaintiffs claim that the defendant to< k possession of certain goods included in their mortgages, but which were not included in his mortgage. If this ‍​​​​​​‌‌‌​‌​​​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌​​​​​‌‌​​‌​​‌​​‌‍be so, his taking of such goods was unlawful, and they can maintain this action to recоver the value thereof

*2534. As the defendant was rightfully in possession of the mortgaged property, as stated above, it is immaterial whether there was any other breach of the condition of his mortgage.

According to the terms of the report, the case must be tried m the superiоr court, to determine the validity of the plaintiffs’ mortgages, and the value of the property, if any, taken by the defendant, which was not covered by his mortgage.

Case to stand for trial.