Jewett v. Felker , 2 Me. 339 ( 1823 )

Mellen C, J.

As between the mortgagor and the mortga: gee, the latter is considered as seised of the legal estate ; — but as between the mortgagor and all other persons, he is regarded, as still continuing seised, and accordingly may convey in fee. The demandant in the present case, by the sale of the right of Felker on the execution to Fuller, and Fuller’s conveyance to him, had an immediate right of entry on the land.thus purchased, in the same manner as' though Felker had made a voluntary and direct conveyance to the demandant. As then it became necessai’y for him to commence an action against the tenant, in order to obtain possession of the lands he had purchased, and to hold them, subject to the tenant’s right of redemption, the demandant must be considered in such proceeding as in the right, and the tenant, in withholding the possession, as in the wrong.

The action being rightly commenced, the demandant cannot be deprived of his costs of the suit without his own consent, or by means of his, own act; because they are incident to the lawful prosecution of his legal rights. It is a well settled principle that a tenant cannot defeat a demandant’s action by purchasing in a title after the commencement of the action, unless such purchase be made of the demandant, or with his concurrence or consent. The cases cited for the demandant are authorities, to this point. Now it is perfectly clear that the tenant, by his, •'lender within a year, completely divested the title of the de? mandant, by redeeming the estate on the terms prescribed by the statute. So far the tender is effectual, — but it cannot be a bar to this action. No tender is good at common law after the commencement of the action ; — and by our Slat. 1822, ch. 182, a tender after the commencement of the action is not good unless all costs up to that time are also tendered. If the tenant has reduced himself to an unpleasant situation, it is owing, ,in the first place, to his own indiscretion in not yielding up the possession to the demandant without a suit; and secondly in not tendering the costs of suit when he tendered the price of the land and interest.

But though the tender which wras proved in the manner above, mentioned could not, strictly speaking, form a legal defence to the action, either on the general issue or under a special plea3, yet considering the peculiar circumstances of this case, the. Court would, on payment of all costs by the tenant, stay fur-, fher proceedings, so as to protect the rights of all concerned.t

Verdict set aside and a neiu trial granted,