— I concur in the result reached in the foregoing opinion, but not in the grounds upon which it is based. In my judgment section 3611 of the Code expressly authorizes the defendant in actions of this character, where he continues in possession after a sale under a foreclosure of a mortgage', to plead a title paramount to the mortgage, or a title derived from the purchaser at the sale. The latter I understand to have been pleaded in the answer, and that a demurrer thereto was sustained by the justice. It is true an equitable title only was pleaded, but .such I think is within the meaning and intent of the statute, for the reason that a person may be entitled to the possession just as clearly under an equitable as a legal title.
The petition in my judgment seeks to recover on two grounds: 1. Because of the foreclosure of the mortgage, sale and purchase of the premises by the plaintiff, and 2. Because the defendant was a tenant at will, and which tenancy had been terminated. The defense pleaded was a complete defense to the first ground on which a recovery was asked. The demurrer was, therefore, improperly sustained.
While the statute authorizes the defendant to plead title as *654above stated, it also declares such title caunot be investigated. Code, section 3620.
Construing these seemingly contradictory sections, I incline to think because title has been pleaded it does not necessarily follow that the action must be dismissed. If it had been so intended, I think it would have been so declared, but I think the defendant may.introduce evidence of title and that thereunder he is entitled to the possession. The justice cannot try and determine the question of title. But only the question of possession. It is certainly true a party may own a legal or equitable title, and still not be entitled to the possession.