— This writ of entry was brought to recover seven-eleventh undivided parts of a farm situated in the town of Corinna.
Enoch Hayden, the former owner, died in the month of May, 1834, intestate, leaving eleven children then alive. The demandants are his children, and they will be entitled to recover, unless the tenant has acquired a superior title. He has acquired the title of Henry W.-Hayden, one of the original demandants by a conveyance from him, made on May 27, 1848, since the commencement of the suit. The demand-ants obtained leave to discontinue as to him; and to this exception is taken.
An amendment of like kind was refused in the case of Treat v. McMahon, 2 Greenl. 120, and in the case of Pickett v. King, 4 N. H. 212. And was allowed in the cases of Rehoboth v. Hunt, 1 Pick. 224; Thayer v. Hollis, 3 Metc. 369; Johnson v. Huntington, 13 Conn. 47; Wilson v. King, 6 Yerg. 493.
Authority to permit such an amendment is claimed by the Court in Massachusetts without any statute expressly authorizing it. Stevens v. Fitch, 2 Metc. 505. And in the case of Minor v. The Mechanics’ Bank of Alexandria, 1 Peters, 46, it is said, “ in the administration of justice, matters of form, *359not absolutely subjected to authority, may well yield to the substantial purposes of justice.”
When an action appears to have been properly commenced, and one defendant is discharged upon proof of infancy, the suit has been maintained against the others. Hartness v. Thompson, 5 Johns. 160; Woodward v. Newhall, 1 Pick. 501; Cutts v. Gordon, 13 Maine, 474.
The case of Treat v. McMahon, appears to have been decided upon a motion without opportunity for consideration or argument. There being little distinction in principle between allowing the name of a plaintiff or of a defdndant to be struck out of a writ, the authority of that case is somewhat impaired by the case of Cutts v. Gordon.
In the present case the action was properly commenced by those, who were equally interested in the land as tenants in common. The right of the tenant to retain the whole estate, or of the remaining demandants to recover their shares, was in no degree affected by permitting the name of one demandant to be struck out. No change was required in the pleadings or issue except as to the proportion demanded. The same testimony would be required. Under such circumstances the administration of justice was best promoted by allowing the demandants to erase the name and to proceed with the suit.
The tenant claims title to the remaining six-eleventh parts, first by a conveyance from the administratrix of the estate of the intestate, made on December 9, 1837. She appears to have obtained a license to sell so much of the real estate of the intestate as would raise the sum of $250, at a probate court holden on the last Tuesday of January, 1836. The statute then in force, chap. 52, $ 12, provided, that no such license should be in force for a longer term than one year from the time when it was granted. That conveyance having been made more than one year, after the license was granted, was wholly inoperative. The argument however is, that the demandant’s right to recover is barred by the provision contained in the same section, that no action shall be sustained by an heir unless brought within five years after a delivery of the deed. *360That provision applies only to actions “ for the recovery of any real estate sold under such license.” When an estate is sold, after the statute has determined that the license was void, it cannot be considered as sold under the license. No license then existed.
The tenant next claims to hold the estate as assignee of a mortgage made by the intestate to the town of Corinna on August 1, 1823, to save the town harmless from the support of James Adams and his wife so long as either of them should live. There is no testimony tending to prove, that either of them were at any time afterward chargeable to the town, oír that the town incurred any expense on their account. On the contrary it appears, that they were supported by the intestate during his lifetime, and by his widow and children, or by two of .his children, after his decease during the life of Adams, and the life of his wife.
The testimony of Freeman Hayden does not prove an agreement made between himself and the overseers of the poor of the town, that he and his brother should suppori Adams and wife at the expense of the town, or that the mortgage should be held or be assigned to them for their security for such support. All pretence of any claim on their part against the town was extinguished by lapse of time long before the town executed a release of its interest in the premises to the tenant, on July 24, 1848. That release being nothing more, at most, than an assignment of a satisfied mortgage conveyed no interest in the estate. When the condition of a mortgage has been performed, it cannot be set up to defeat the title of the mortgager. The tenant, when this action was commenced, was not in possession under the mortgage. He has since attempted to purchase in that title. The rule, that a bill in equity is the proper remedy when the mortgagee is in possession under his mortgage, is not applicable.
The fact, that a license has been granted, on petition of an administrator de bonis non of the estate, to sell real estate for the payment of debts, and that an appeal from such a decree *361is pending in this Court cannot prevent a recovery by the demandants. Their recovery will not prevent a sale for such a purpose, if the administrator can legally obtain a right to sell. Nor will his right to obtain a license for that purpose be affected by a recovery.
The tenant claims one undivided eleventh part by a conveyance made by Susan Hayden, while she was unmarried and an infant. It is insisted, that her acquiescence amounts to a ratification; and that she hqs done no act exhibiting her pleasure to avoid the operation of that conveyance.
The opinion in the case of Boody v. McKenney, 23 Maine, 523, stated, that when an infant had conveyed real estate, mere acquiescence for years would afford no proof of a ratification. That some act must be performed, from which it could be inferred, and that an entry was a sufficient disaffirmance. After her marriage she could properly act only in connexion with her husband. Their uniting in this suit is equivalent to an entry for such a purpose. Exceptions overruled.