Torrey v. Cook
116 Mass. 163
Mass.
1874
Check Treatment
Gray, C. J.

The release by the mortgagee, having been made contemporaneously with, and solely for the purpose of aiding in, the partition by deed between the mortgagor and his co-tenant, did not discharge any part of the mortgagor’s estate from the mortgage. The effect of the transaction upon the interest of the mortgagee, as upon that of the mortgagor, was simply to substitute, for an undivided half of the whole farm, the whole of the portion set off to the mortgagor in severalty. Bradley v. Fuller 23 Pick. 1.

*165The mortgagee could not execute the power of sale by selling less than the whole title of the mortgagor and himself in the land mortgaged. His sale and conveyance of an undivided half of the land bound by the mortgage therefore passed no title to the purchaser, and did not affect the mortgagor’s right to redeem or his own right to foreclose. Fowle v. Merrill, 10 Allen, 350. McMurray v. Connor, 2 Allen, 205. This conveyance did not purport to pass any right of the mortgagee, otherwise than by an execution of the power, nor contain any covenants which could estop him to assert his title under the mortgage.

The mortgagee then, still being the lawful holder of the mortgage, had the right to foreclose it by appropriate proceedings, as well as to sue on the mortgage note; and the bringing of an action and recovery of judgment upon the note cannot, without payment, bar this writ of entry. Ely v. Ely, 6 Gray, 439.

The result is that, as each tenant has pleaded the general issue, and one of them has no title in the land, the demandant is entitled, unless the other shall pay the amount due on the mortgage, to conditional judgment for the possession of the whole tract of one hundred and ten acres against both. The question what that amount shall be does not appear to have been intended to be presented by the statement of facts, and has not been argued by counsel. The case mupt therefore stand for a hearing upon that question before a single justice, unless the parties agree upon the amount.

Demandant entitled to conditional judgment.