It is not doubted that in this Commonwealth an action at law upon a stipulation in a deed poll, by which the grantee assumes and agrees to pay as his own debt a previous debt of the grantor, secured by mortgage of the granted premises, can be brought in the name of the grantor only. Mellen v. Whipple, 1 Gray, 317. Prentice v. Brimhall, 123 Mass. 291. National Bank v. Grand Lodge, 98 U. S. 123. United States Mortgage Co. v. Hill, C. C. U. S. Dist. Mass. May term 1879. The question presented by this case is how far the mortgagee has the right, without or against the consent of the grantor, to bring and to control such an action in the name of the latter.
The only cases in which a third person has the exclusive right to the control of an action at law are where he has acquired the whole interest of the nominal plaintiff, either by his voluntary act, as in Foss v. Lowell Savings Bank, 111 Mass. 285, or by operation of law, as in Hart v. Western Railroad, 13 Met. 99.
This mortgagee has not acquired the entire interest of the grantor in the promise of the grantee to the grantor, or in the right of action upon that promise. The grantor has a direct interest in that promise, because, if it is broken by the neglect of the grantee to pay the mortgage debt at maturity, the grantor has an immediate right, without any notice to or interposition of the mortgagee, to sue the grantee at law upon his promise, and to recover the amount of the mortgage debt remaining unpaid. Furnas v. Durgin, 119 Mass. 500. Locke v. Homer, ante, 93. Reed v. Paul, ante, 129. He has a direct interest in the action, in the amount to be recovered, and in the control of the litigation, because he is himself liable to pay the mortgage debt to the mortgagee; and if the amount recovered by judgment and collected on execution in this action shall be less than the amount of the mortgage debt, and the amount so collected shall be paid to the mortgagee, he will still remain liable to the latter for the rest of the mortgage debt. ,
There are indeed authorities, cited by the learned counsel for the mortgagee, which sustain the right of the mortgagee, upon a bill in equity for foreclosure to which the mortgagor and his grantee are both made parties defendant, to obtain the benefit of the liability of the latter on his promise to the grantor. *137Halsey v. Reed, 9 Paige, 446. Klapworth v. Dressler, 2 Beasley, 62. Crawford v. Edwards, 33 Mich. 354. Corbett v. Waterman, 11 Iowa, 86. But the ground upon which those cases proceed is that in equity the mortgagee, as against his mortgagor, has the right to the benefit of any collateral security held by the latter for the payment of his debt to the mortgagee; and that a court of 'equity, having the mortgagee, the mortgagor and the grantee before it, can adjust in one suit all the rights of the parties. However that may be, they give no countenance to the theory that the mortgagee has the exclusive right, in law or equity, without bringing a suit for foreclosure, to maintain an action at law against the grantee in the name of the mortgagor without his consent; or that a court of law, when both the mortgagor and the mortgagee are interested in the cause of action, can upon summary motion, and without regular issues, determine the equities between them, and take the control of the action out of the hands of the plaintiff of record. Crowell v. Currier, 12 C. E. Green, 152, 650. Corbett v. Waterman, 11 Iowa, 89. In re Empress Engineering Co. 16 Ch. D. 125, 129.
The present action was originally brought in the name of Coffin, the mortgagor, by the mortgagee, under a verbal authority from Coffin, for which no consideration was paid by the mortgagee. Coffin afterwards gave notice to the attorneys of record for the plaintiff that it had been commenced under a misunderstanding, demanded that it should be discontinued, forbade the further use of his name, and offered to pay the taxable costs. He subsequently presented a petition to the court in which the action was pending to order the action to be discontinued, or to require the mortgagee to execute to him a bond of indemnity. Upon this petition, that court ordered the mortgagee to give such a bond, but without determining whether or not the mortgagee had the right to maintain the action in the name of the plaintiff. The mortgagee filed a bond in accordance with that order. After the case had been tried, and before final judgment had been entered, Coffin asked to be further heard upon his petition aforesaid, and for an order, in accordance with the prayer thereof, that the action be discontinued, and, upon these facts, claimed the right, as matter of law, to an order for such discontinuance.
*138We are of opinion that he is entitled to such an order, upon payment of costs up to the date of his notice to the attorneys of record of the plaintiff to discontinue the action.
Ordered accordingly.