At the first term of the court of common pleas, where this action was entered, the tenant moved to dismiss the same, because there was no sufficient writ; and this he offered to prove by the testimony of the clerk. This evidence was rejected ; and we think it very clear that no such evidence was admissible to sustain the motion. The rule of law is well settled, that no motion to abate the suit, or to dismiss the action, can be sustained, except for some matter apparent on the record. Gould Pl. c. 5, §§ 134, 135. Nye v. Liscombe, 21 Pick. 263. Rathbone v. Rathbone, 4 Pick. 89. Guild v. Richardson, 6 Pick. 369. If the matter does not appear on the face of the record, the defendant must allege it by plea, that it may be traversed, put in issue and tried, if it is not admitted by a demurrer. Simonds v. Parker, 1 Met. 511. Jacobs v. Mellen, 14 Mass. 135.
This motion being overruled, the tenant then offered to prove, in defence to the action, that the demanded premises were subject to a mortgage, previous and paramount to that of the demandants, and that before the commencement of this action, the prior mortgagees had recovered judgment for possession, to foreclose the right of redemption. This judgment had been reversed on a writ of error. This, however, is not material; for if it had not been reversed, the tenant, not holding under the prior mortgagees, could not set up his title in defence to this action. But he also offered to prove that the said prior mortgagees still retained possession of the premises. It does not, however, appear that the possession was so retained, to the exclusion of the tenant, or otherwise. If, however, the *469tenant was not in possession when this action was brought, he should have pleaded that fact in abatement, which he might have done notwithstanding the St. of 1836, c. 273, abolishing special pleas in bar. Or, if he could not so -plead, he should have specified the same matter in the defence, disclaiming all right to the possession. But whether the tenant could, in any form, avail himself of such a defence, if this action was brought for the purpose of foreclosing his right of redemption, may be well doubted. In Penniman v. Hollis, 13 Mass. 429, it was decided that a mortgagee of a reversion or remainder might maintain an action for foreclosure, against the mortgagor; and the reasons, on which that decision was founded, and which seem entirely satisfactory, are applicable to the present case. The process for foreclosing an equity, although in form an action at law, is in fact a suit in equity ; for the demandant is not entitled to any but a conditional judgment. In Olney v. Adams, 7 Pick. 31, it was decided that a mortgagor may plead a disclaimer in bar to a writ of entry to foreclose a mortgage, brought against him after he has assigned his right to redeem; which implicitly decides that no such disclaimer can be pleaded in a case where the mortgagor has not assigned his right o redemption.
But it is not necessary to decide this point in the present case; for the tenant has not disclaimed all right to possession, but attempts to defeat the action by setting up the title and possession of a third party, under whom he has no claim; which cannot, upon any principle, be allowed.
Exceptions overruled