*111The opinion of the Court was drawn up by
Appleton, J.This is a writ of entry to recover a parcel of land in Saco.
The title was originally in Olive Spring, who, on Dec. 14, 1854, conveyed any then existing interest she might have to the demandant.
The tenant’s title is as follows : — On Jan. 4, 1833, John Spring and Olive Spring, his wife, mortgaged the premises in dispute, which belonged to her, to the President, Directors & Co., of the Saco Bank.
On Sept. 30, 1833, the President, &c., of the Saco Bank assigned their mortgage to Jonathan King and others, as trustees of the Saco Bank.
On the 9th or 10th of May, 1833, an entry was made to foreclose the mortgage, and notice thereof given to John Spring; but it is insisted that Mrs. Spring was not notified of this entry, and that, as to her, it was ineffectual.
On July 13, 1836, Jonathan King and others, trustees, transferred their interest in the premises to David Webster.
On April 18, 1838, David Webster gave a deed of the premises to Daniel Burnham, and, on July 6, 1839, James Rangely, having previously recovered judgment, levied his execution upon the premises as the property of Webster & Burnham. On Aug. 18, 1842, James Rangely conveyed his interest by levy to Noah Burnham, who deceased in August, 1857, and, by his last will and testament, appointed Daniel Burnham and Lyman T. Flint, trustees and executors.
John Spring, the husband of Olive Spring, died Aug. 17, 1858.
The tenant is in possession under Daniel Burnham and Lyman T. Flint, acting for themselves as well as for the heirs of Noah Burnham.
The plaintiff claims that the mortgage has been paid, and that, so far as regards her grantee, Olive Spring, there has been no foreclosure, and that, having thus either the fee or the equity of redemption, she can maintain this suit.
Upon the facts, as disclosed in the report, it has been de*112termined, and correctly, that the mortgage was not paid and discharged; that, as to John Spring, it is to be deemed foreclosed, and that the interest of the trustees of the Saco Bank was duly conveyed to David Webster. Rangely v. Spring, 21 Maine, 130; Rangely v. Spring, 28 Maine, 130; Shepley v. Rangely, 1 W. & M., 213.
It is unnecessary to determine whether the alleged foreclosure of the mortgage from Spring and wife to the Saco Bank was binding or not on Mrs. Spring, because, assuming it to be ineffectual, for want of notice to her, or for want of continued possession in the mortgagees or their assigns, we think the action is not maintainable.
If the mortgage was foreclosed, so as to bind Mrs. Spring, the plaintiff has no claim.
If not so foreclosed, then Rangely by his ‘levy acquired nothing but the life estate of John Spring, and, upon his decease, all rights under the levy would cease.
But, if the mortgage was not foreclosed, neither was it paid. It was manifestly the design of all parties, that it should be kept up as a subsisting estate. The deed from King and- others to Webster, and from Webster to Burnham, operated as assignments of the mortgage. Hill v. More, 40 Maine, 515. An assignment of a mortgage by a quitclaim deed is effectual, if such be the intent of the parties. Crooker v. Jewell, 31 Maine, 519. A mortgagee in possession may, by a deed in common form, and without assigning the debt, convey a seizin that shall be good against all but those who stand in the place of the mortgager, and, even as against them, until redemption. Hutchins v. Carleton, 19 N. H., 487; Smith v. Smith, 15 N. H., 55.
By the deed from Webster to Burnham of April 18, 1838, the fee passed to the grantee, if the mortgage was foreclosed as against all parties. If the foreclosure was insufficient to bind Mrs. Spring, then it operated as an assignment of the bank mortgage to him, and he has never been divested of this title, and must be regarded as in possession under a mortgage not foreclosed. The tenant is in under Daniel Burn-*113ham. There is no evidence that there are two persons of that name, and we cannot presume such to be the fact, without proof. Upon the facts, as admitted in the case, the tenant is entitled to call in aid the title of Burnham, whatever it may be.
The remedy of the plaintiff is by bill in equity; and if it should be determined that the mortgage is not foreclosed as against Mrs. Spring, she may bo entitled to redeem.
Plaintiff nonsuit.
Tenney, C. J., and Cutting, May, Goodenow, Davis, and Kent, JJ., concurred.