— It is well known, that there is a difference of opinion, whether a mortgage of real estate is to be regarded as a security merely and not as a conveyance within the statute of frauds, and therefore assignable without any instrument in writing by delivery only.
The decisions in this State have followed those of Massachusetts, and the question might be considered at rest here without reference to any statute provisions. Vose v. Handy, 2 Greenl. 322; Prescott v. Ellingwood, 23 Maine, 345.
Mortgages in this State may be foreclosed without any judicial proceedings by acts in pais; and if they were not regarded as within the statute of frauds, titles to real estate could be transferred without operation of law or any deed of conveyance. The registry with the records of the courts would no longer afford information, in which confidence could be placed, respecting titles. Nor would mortgagers or then-grantees be able to ascertain with certainty to whom performance should be made or tendered to redeem their estates.
The tenant has no title to the land demanded, but the demandant must recover upon the strength of his own title.
It is provided by statute, c. 91, sect. 30, that “ no estate or interest in lands shall be granted, assigned or surrendered, unless by some writing signed as aforesaid, or by operation of law;” and it is difficult to perceive, how the Court could decide, that the demandant has a legal title to, or interest in, *199the land demanded, without disregarding this provision of the statute. Demandant nonsuited.