delivered the opinion of the Court. It struck me at the trial, that this case was distinguished from the case of Smith et al. v. Dyer, 16 Mass. R. 18, by a material fact, namely, the entry of the mortgagee after condition broken, whereby he acquired the actual seisin of the whole legal estate ; and that dying so seised, the estate would descend to his heirs; defeasible however by payment of the money due to the administrator, or by his disposition of the property in the course of administration. But my brethren think, and I concur with them in opinion, that notwithstanding the entry of the mortgagee, the property on his decease vested in his administrator, and did not descend to the heirs ; and that this action cannot be maintained in the name of the heirs.
The case depends on the statute of 1788, c. 51, the language of which is not very definite, but according to its most obvious meaning, it requires, that whenever the mortgager is in actual possession after the death of the mortgagee, the equity of redemption not being foreclosed, and it becomes necessary to commence an action against him for the recovery of possession, the action must be brought in the name of the executor or administrator. Now, notwithstanding the entry of the mortgagee, the mortgager was permitted still to remain in possession, on an agreement to pay interest unde, the name of rent, and this action is commenced to recover *21possession. The tenant might have pleaded the mortgage and restricted the demandants to a conditional judgment, so that all the reasons given for the decision in the case of Smith v. Dyer seem to apply with equal force to this case. Although the mortgagee entered, he had not recovered possession within the true meaning of the statute ; he had the legal but not the actual possession ; and therefore the action should have been brought by the administrator.1
According to the agreement of the parties, the default must be taken off, and the demandants must become nonsuit.
See 2 Powell on Mortg. (Rand’s ed.) 666 a, and note 1. Revised Stat, t. 65, § 11