The opinion of the court was delivered by
Redbibld, Ch. J.This is an-action of ejectment, wherein the plaintiff seeks to recover, as tenant in common with the defendant, fifty-one four hundred and fiftieths parts of certain premises, on the ground of the defendant’s refusal to recognize his rights as co-tenant.
The parties both claim under Benjamin Dow, who first mortgaged the premises to Howe, Morse, and Putnam, to secure them for entering into a recognizance for his appearance at court, in a criminal case, which became forfeited May Term, 1846, the mortgage being dated May 23, 1846. In February (3,) 1847, Alden Dow levied upon the whole of Benjamin Dow’s equity of redemption, treating the mortgage, as an incumbrance, to the full amount of the recognizance $250, May Term, 1847, (and before the six months for the debtor to redeem the execution expires,) the recognizance is chancered to $100, and costs some $14; on the 22d of November,' 1849, the plaintiff levies upon an undivided portion of the premises, the same, which the whole amount of the execution bore toHhe whole value of the premises.
March 29, 1847, Alden Dow conveyed his interest to J. D. Stoddard, and May 1, 1847, Stoddard conveyed to the defendant. I take no notice of O. Dow’s deed, as agent of Benjamin Dow, as no power is shown, giving her authority to execute such deed. Mr. Stoddard paid the amount recovered on the recognizance, *615December 27,1847; hut whether on his own behalf, having then acquired the title of Alden Dow, or on behalf of the mortgagees, does not appear. And it is not perhaps.' important, as, if he paid it on his own behalf, he would still, in equity, be entitled to stand upon the mortgage, as a title, paramount to that of the mortgagor, or any one acquiring title, from or under 'him, subsequent to the execution of the mortgage. For so long as the mortgage title exists, to any amount, and it must exist till it is all paid, either by the mortgagor, or some one in his behalf, that title must be superi- or to any title derived from, or under the mortgagor, at a subsequent date.
The mortgage title then, to the amount of the $114, and interest, being still subsisting, either in the original mortgages, or in Stoddard, or his grantees, who have paid it off for their own protection, it must surmount, and override, any title which plaintiff could possibly obtain of Benjamin Dow, of a date posterior to the title by the mortgage, which is now vested in the defendant, and which will effectually preclude the plaintiff from recovering in ejectment, against the defendant. ■,
What is the precise nature of the title acquired by the plaintiff, it is perhaps not needful to inquire. If his levy is correct and perhaps it is, he certainly has some rights, which will enable him to go into a court of equity, and obtain title to the premises ; either u|>on paying the mortgage, as tenant in common with the defendant, under Alden Dow’s levy, or by paying both the mortgage and the execution and fees, to have the whole title in the premises quieted in him.
It is in vain to urge, that if a mortgage, under such circumstances, is paid off by the mortgagor, or defeated, in a judicial procedure, on the ground of illegality, or any other ground, this leaves the whole title, in the creditor, who has levied upon the equity of redemption, and that this title is perfect, both in law and equity. There can be no doubt .the mortgagor, under ■ such circumstances, has an equity, which he can successfully assert, in a court of equity. Whether he may claim strictly, at law, to stand as a tenant in common, with levying creditors, in the proportion, which the mortgage, at the time of the levy, bore to the amount of the execution, is perhaps questionable. That is certainly the simplest view of the case, and it brings the thing to the same result, as if the levy *616had been made upon land unincumbered, except in one case the levy is in severalty, and in the other, in common.
But here the mortgage is not extinguished. For if paid by defendant, or his grantors, the law will not create a merger, contrary to their probable purchase in buying in, or advancing the amount of the mortgage, and the equity of the case, so that as the facts now stand, the plaintiff’s title is clearly subordinate to that of the defendant, which must defeat his recovery at law.
Judgment reversed, and .plaintiff became non-suit.