¶1This plaintiff has now a good title to the locus in quo. For, although the entry and possession of the mortgagee might have been sufficient to foreclose the right in equity to redeem, yet, as the mortgagee has accepted all the money secured by the mortgage, this must be considered as a waiver of the entry for that purpose. 5 Pick. 418, Fay v. Vallentine; 4 Greenleaf, 495, Quint v. Little.
¶2It is equally clear, that when this plaintiff brought: his writ of entry against W. Robinson, he had no seizin, which entitled him to maintain such an action. For the mortgagee had the right of possession, and W. Robinson was in the actual possession under the mortgagee.
¶3It seems, therefore, that W. Robinson, might have defeated that action, by pleading the general issue, and putting the demandant, in that suit, to show a seizin. *14But judgment passed against Robinson, in that suit, and settled conclusively, between him and this plaintiff, that the right of possession was, at that time, in the plaintiff. Jackson on Real Actions, 2.
¶4And it does not appear, that W. Robinson acquired any new right of entry after the judgment, and before the entry of wh-ieh the plaintiff complains, nor that the other defendant ever had any right of entry.
¶5We are, therefore, of opinion, that the nonsuit must be set aside, and the cause stand for trial.