¶1The p’ea of nul disseizin, filed by the defendants, would, prior to the St. of 1836, c. 273, abolishing all special pleas, and requiring the general issue to be pleaded in all cases, have been an admission that the defendants were tenants of the freehold, or might be considered as such, at the election of the demandants. But since the enactment of this statute, we are to look behind the plea, and the real *156grounds of defence are required to be presented in the specifications of defence, filed with the plea. We think, therefore, it is very clear that it is competent for a tenant in a writ of entry to rely upon the defence of no7i-tenure, or never tenant of the freehold, upon filing a proper specification of defence of that nature, with the plea of the general issue. Churchill v. Loring, 19 Pick. 466.
¶2The further question raised in the present case is, whether an action to foreclose a mortgage can be brought against a tenant for years. The Rev. Sts. c. 107, § 8, provide that “ the action may be brought against whoever is tenant of the freehold.” This excludes the case of a tenant for years, holding strictly that relation. If such tenant makes no greater claim of title, and interposes no obstacle to the enforcement of the mortgage title created by his lessor; if he is ready and willing, at all times, to yield up the possession to the mortgagee ; in such case, the tenant for years is not liable to an action for foreclosure by the mortgagee. And if such suit is brought against him, he may avail himself of this defence, upon filing a proper specification thereof. On the other hand, any person who is in possession, be he tenant for years or otherwise, if he denies the right of the mortgagee, refuses to yield up possession to him, and thereby prevents him from taking peaceable possession, may, at the election of the mortgagee, be deemed a disseizor, and be considered and treated as a tenant of the freehold by disseizin, and in such case be liable to this action. See commissioners’ notes to Rev. Sts. c. 107, 7. The case of Shelton v. Atkins, 22 Pick. 74, involved only a question as to an action for foreclosure instituted prior to the revised statutes, and is not in conflict with these views.
¶3The facts stated in the present case show nothing beyond the naked liability of tenants for years,, on the part of the defendants, and no acts of theirs which could authorize the demandants to consider them as disseizors, and liable to be treated as tenants of the freehold.
¶4*157The result therefore is, that the defence is well maintained.
¶5
Demandants nonsuit.
¶6 In January 1849, at Boston, a similar decision was made in a case pending in the county of Bristol.
¶7Inhabitants of Raynham vs. Thbodobe W. Snow.
¶8This was a writ of entry to foreclose a mortgage given to the demandants by Dan Wilmarth. The tenant (as the parties agreed) never owned any freehold in the demanded premises, but was merely tenant at will, and *158removed, therefrom after the commencement of the action. At the first term, ae filed a disclaimer.
¶9The coubt held, that the action could not be maintained.
¶10N. Morton, for the demandants.
¶11Pratt, for the tenant.