This is an action brought by the administratoi of the estate of Samuel Campbell, for the foreclosure of a mortgage of real estate made to him in the year 1805, by Nathaniel Stockwell, under whom the tenant claims title, denying the demandant’s title under the mortgage, on the ground that the *90action is barred by the statute of limitations—Rev. Sts. c. 119. By <§> 1 of that chapter it is provided that “ no person shall commence an action for the recovery of any lands, nor shall make an entry thereupon, unless within twenty years after the right to make such entry or bring such action first accrued, or within twenty years after he, or those from, by, or under whom, he claims, shall have been seized or possessed of the premises.”
We think it quite clear that there is nothing in this section to bar the present action. The first part, referring to the time when the right of action first accrued, is no bar; for the demandant’s right of action did not accrue to him until 1842; and no right of action accrued to the demandant’s intestate, within the meaning of this section, for he was in the constructive possession of the premises, and died seized of the same. The mortgagor was a mere tenant at will or sufferance, and paid the interest on the mortgage debt until 1827, the year when the demandant’s intestate died. And by this it appears that the action is not barred by the remaining part of the section ; for the intestate was seized and possessed of the premises within twenty years before the commencement of the action.
It has been argued for the tenant, that this case is within the fifth clause of the third section. But if it were, the statute would be no bar, as the demandant’s intestate had been in the constructive possession of the premises within twenty years before the commencement of the action; and it is immaterial when his right of action first accrued. But the statute is no bar to an action for the recovery of any land or real estate, unless the tenant holds by a title or possession adverse to that of the demandant. The statute therefore can never bar an action for the foreclosure of a mortgage, unless the mortgagee had been disseized by the mortgagor or by some person claiming under him. It is true, that if the mortgagor should remain in possession for twenty years without paying interest or rent, or otherwise admitting that the mortgage debt was unpaid, this would be good presumptive proof of payment, and would be a good defence to an action for foreclosure. But it would not be a *91statute bar. In the present case, there was no disseizin by the mortgagor or by the tenant until 1841, when the latter purchased the premises of the former, denying the validity of the mortgage. It is clear, therefore, that the action is not barred by the statute of limitations; and it being admitted that the mortgage debt has not been paid, the demandant is entitled to judgment.
Tenant defaulted.