delivered the opinion of the Court.
It having appeared in evidence, that the demandant had assigned his interest to a third person, it is insisted that this action cannot be maintained in his name. In support of this point, Gould v. Newman, 6 Mass. 239, has been, among others, cited as an authority. In that cáse, the assignment of the mortgage was specially pleaded. Thus pleaded, it was holden to be a good bar; but Parsons C. J. there says, “under the general issue it is very clear, that this convey ance by the plaintiff, could not be given in evidence.” And jn Wolcott v. Knight, cited in the argument, it was expressly decided that a conveyance by the demandant to. a third person, under whom the tenant does not claim, must be pleaded in bar; and cannot be given in evidence under the general issue. Had it been so pleaded, it might have been replied, that nothing passed by the demandant’s deed to Vaughan ; and this replication would have been sustained in point of fact, if at the time of its execution, the tenant had, as he claims to have had, an actual ádverse seisin.
With regard to the competency of the deponent, Levi Sawyer, under whom both parties claim, on the ground of interest; we are of opinion that it was removed by the release, which is in the case. He had entered into no covenants, by which he would, in any event, be made liable to the tenant. Prior to the release, it was for his interest that the demandant should prevail; as his debt to him would thereby be paid, to the extent of the value of the land. By the release, the demandant, and those who have become parties in interest under him, have accepted for their debt, so far as the .witness was concerned, their chance to recover the land in controversy, and have covenanted not to sue or molest him in his person, or to take any of his property therefor,'other than the land; and have further agreed that the instrument by them executed, should forever estop them from so doing. Being thus secured and protected from liability, he stood indifferent between the parties; and his deposition, subsequently given, was properly received in evidence.
*19It would be doing violence to the terms of the release, and to its plain and obvious meaning, to consider it a discharge of the debt, as a lien on the land. Nothing was farther from the intention of those who made it; nor is there, from the terms of the instrument, the least ground for misapprehension or doubt. It was intended to remove the interest of the witness, and to leave the debt, as a lien upon the land, unaffected. This was a lawful purpose; and it is clearly expressed.
There is no difficulty, with regard to the judgment to be entered. The debt being first ascertained; it is to be the usual conditional judgment, as on mortgage. If the right to redeem is of any value, it cannot be exercised, except upon payment of the whole debt due. If that exceeds the value of the land, the tenant is not obliged to pay the difference; and the instrument given to the witness releasing him therefrom, with which the tenant has no privity, cannot affect the form of the judgment; which is to be rendered for the demand-ant upon the verdict, as on mortgage.