If we assume that the taxes in question constituted a lien upon the estate of the mortgagee under Si. 1856, c. 239, still the mortgagee, not having taken possession, was not the person taxable therefor. By § 5 of that statute, no sale of real estate for taxes shall affect the rights of any person not taxable therefor, unless a written demand is first made upon said person, by the collector, for the payment of said taxes. This section was repealed by St. 1858, "c. 82. But while it was in force, viz. September 4,1857, the collector made to the plaintiff the sale and conveyance under which he claims. It was a sale for taxes, and no written demand had been made upon the defendant who was then the mortgagee, and therefore by the terms of the statute it did not affect the rights of the defendant. This is a sufficient answer to the action. The entry of the defendant to foreclose his mortgage on the 22d of.September 1858 could not render him liable to the plaintiff who had acquired no' title as against him, whatever may have been his liability to the collector provided the taxes had remained unpaid. This case is unlike the cases cited, Parker v. Baxter, 2 Gray, 185, and Andrews v. Worcester County Ins. Co. 5 Allen, 65. .
Judgment for the defendant.