Newell Sherman versus Joseph Abbot, 18 Pick. 448

Wilde J. delivered the opinion of the Court. The facts reported in this case are somewhat complicated. The titles of both parties are derived from Reuben Sherman senior, who in 1821 conveyed the demanded premises, with other lands, to Reuben Sherman junior, taking back, at the same time, a mortgage deed of the premises, to secure the whole or a part of the purchase money. Reuben Sherman junior, on the 25th of August, 1828, conveyed the premises to the demandant. His deed was recorded on the 30th of August, 1828.

Prior to this conveyance, however, Reuben Sherman senior had mortgaged the premises to the tenant; but this mortgage was not recorded until after the record of the conveyance from Reuben Sherman junior to the demandant; and his title, therefore, as his counsel maintain, must be considered as the better title. But this is not the legal consequence of (lies* conveyances ; for the mortgage deed from Reuben Sherman junior to Reuben Sherman senior, was recorded before the conveyance to the demandant, and nothing, therefore, passed by that conveyance to him but the equity of redemption.

After these conveyances, the tenant, and Reuben Sherman senior, conveyed the premises to Samuel Sherman ; and it has been argued, that this by law operates as an extinguishment of the mortgage. But clearly it is no extinguishment of the mortgage from Reuben Sherman junior ; for Samuel Sherman had not his title as mortgager, which was then vested in the demandant.

And if this conveyance to Samuel Sherman did operate as an extinguishment of the mortgage from Reuben Sherman senior to the tenant, it is immaterial ; for if so, then the legal estate passed to Samuel Sherman from the other grantor After this conveyance, Samuel Sherman conveyed the premises to the tenant; and by this conveyance the legal estate passed to him. It is, therefore, immaterial, whether the mortgage debt from Reuben Sherman junior to Reuben Sherman senior, has been paid or not.

For it has long been the established law in this Commonwealth, that the mortgager cannot maintain an action at law to recover possession of the mortgagee, after payment of the mortgage debt, unless the mortgaged premises are first released or discharged as the law directs. Judgment on nonsuit.