majority">Parker, C. J.

It is apparent, from the facts stated, that the defendant is not entitled to raise some of the questions which have been suggested in this case.

The case finds that Zebedee Edminster, (being in possession of the premises under what purported to be perpetual leases, at a nominal rent) on the 8th of April, 1820, conveyed in fee to Z. Edminster, Jr.; and that the latter conveyed to James H. Bingham, in the year 1830, holding as his tenant for several years afterwards.

The demandant makes title under a mortgage from Bingham.

Whether the leases in 1803 were valid or invalid, and whether the conveyance of the fee, by Zebedee Edminster, in 1820, was rightful, or is to be regarded as a disseizin, the plaintiff, who derives his title under that conveyance, from a party in possession, is entitled to maintain the possession of his grantor, against any one who cannot show a better title.

*413The defendant’s plea admits him to be in possession, claiming a freehold ; but he shows no title, or color of title, to the freehold, in himself. He has entered upon the possession of the plaintiff’s grantor, or that of the plaintiff himself as mortgagee, under a lease for a term of years from the rector of Trinity Church in Cornish ; and he attempts to set up a title in the rector, in order to defeat the plaintiff’s action. But it is well settled that the tenant in a real action cannot, under the general issue, set up a title in a third person, in bar of the action, except for the purpose of rebutting the demandant’s seizin, and thereby showing that the plaintiff has had neither possession, nor right of possession, (2 N. H. Rep. 522, Bailey vs. March); and the defendant is precluded from asserting the title of the church, or of the rector, in this case, because it appears that those under whom the demandant claims, have for a long period had actual possession of the premises. 3 N. H. Rep. 275, S. C. Proof of title in a third person, therefore, has no tendency to rebut the seizin of the demandant.

The actual possession of those under whom the demand-ant claims continued until the defendant, without any title, saw fit to enter into the premises, under a belief, probably, that although he had no title himself, the party under whom he took his lease had a better title than that of the plaintiff. But under these circumstances the plaintiff, in a real action founded upon his mortgage, is not bound to try the validity of the title of his grantor with the defendant. It is sufficient, upon this issue, that the defendant, without any title, has entered upon the legal seizin of the plaintiff, derived from the actual seizin of his mortgager.

There are cases in which a tenant for years may, in a real action against him, plead a special non tenure, and defeat the writ, on the ground that the plaintiff, who seeks to recover the freehold, is bound to bring his action against one who can render it to him. 2 N. H. Rep. 10, Mills vs. Pierce; 8 N. H. Rep. 477, Sperry vs. Sperry; 9 N. H. Rep. 174, *414Gibson vs. Bailey; 12 Mass. R. 373, Dunbar vs. Mitchell; 5 Pick. R. 238, Dewey vs. Brown; Stearns on Real Actions 202, 207, 234, 260; Jackson R. A. 91, 95. But it appears that the defendant could not, in this case, have availed himself of that plea.

Had the plaintiff claimed title by an absolute conveyance from Bingham, it might well be doubted whether the defendant, who entered after the conveyance to the plaintiff, could have been permitted to qualify his entry, by alleging that he claimed only a term for years, and was not therefore tenant of the freehold. Jackson R. A. 97; 4 N. H. Rep. 217, Walker vs. Wilson; 8 N. H. Rep. 57, Towle vs. Ayer.

But the plaintiff derives title by a mortgage, and it is well settled, in Massachusetts, that any person in possession is liable to the action of the mortgagee, unless he can show a better right in himself. 11 Mass. R. 216, Keith vs. Swan; 17 Pick. R. 121, Hunt vs. Hunt; 22 Pick. 74, Shelton vs. Atkins. W e see no reason why this principle is not equally applicable here under our statutes, if the mprtgager was in possession when the mortgage was executed.

The defendant must yield the possession of the pre'mises, to which he has no title, and the rector of Trinity Church may then assert his title, in an action to recover the land, if he has confidence that the acts of those representing the church in 1803 were authorized, — that the fee is legally in him as rector, — and that the plaintiff has not, through an adverse possession in those under whom he claims, evidence of a right of possession which cannot be successfully controverted.

Judgment for the plaintiff as of mortgage.

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