This is a writ of entry. Both parties claim title from the same grantor; the one through a mortgage, the other through a deed made subsequent to the mortgage. The question is, whether the mortgage has or has not been discharged. If it has, it lets in the plaintiff’s title. If it has not, then the defendants have the better title.
The mortgage was made in 1815. In 1817, it was assigned to J. S. F. Randall. It is claimed that at the time of this assignment, J. S. F. Randall was under aiegal obligation to pay the mortgage debt; that he was not therefore competent to take an assignment of the mortgage; that his attempt to do so extinguished it.
The evidence fails to satisfy us of J. S. F. Randall’s obligation to pay the debt. It is true that his father was under a legal obligation to pay the mortgage debt. The notes were given by him. It is also true that before taking an assignment of the mortgage, J. S. F. Randall had taken a quitclaim deed of his father’s interest in the premises, including his right to redeem the same. But we do not think the right to redeem necessarily carried with it an obligation to do so. J. S. F. Randall could therefore become the assignee of the mortgage without thereby discharging it. We think it was not discharged. The evidence fails to satisfy us of the existence of any facts which would legally have that effect. It is true that the deed to J. S. F. Randall, in terms, conveys the grantor’s “right” to redeem the estate in question. But we do not think this language necessarily, or by fair implication, imposed upon the grantee an obligation to pay the mortgage debt and redeem the estate. The assignment of the mortgage to him did not therefore operate as a discharge of it. It still subsists in full force and effect; and the defendants and those through whom they claim, now are, and for more than twenty years have been, in the *48undisturbed possession of the premises under and by virtue of the mortgage. Such a possession has been held to be presumptive evidence of a foreclosure. Blethen v. Dwinal, 35 Maine, 556; Roberts v. Littlefield, 48 Maine, 61.
It is unnecessary to determine whether the mortgage under which the defendants claim title has or has not been foreclosed; for if it has not, and the plaintiff still has a right to redeem the premises, it is a right which can only be enforced in equity; it cannot be enforced in a suit at law.
Our conclusion is that the defendants are rightfully in possession under a title paramount to that of the plaintiff; and their possession cannot be disturbed until the plaintiff’s right to redeem, if any he has, has been established in a court of equity, and an actual redemption has been had. Judgment for defendants.
Appleton, O. J., Barrows, Daneorth, Yirg-in and Peters, JJ., concurred.