¶1The objection to the plaintiff’s maintaining he» action is, that she had assigned the mortgage on which she de> dares, and thereby divested herself of the legal title to the mortgaged premises; and that she had not taken any sufficient reconveyance when the action was commenced. If this were bo, the defence must prevail.
¶2But the plaintiff undertook to show that the assignment to *155Spear, although absolute in form, was in reality itself a mortgage made for the security of a debt; arid that it had been discharged. It would not be competent to show this by paroi. Lincoln v. Parsons, 1 Allen, 388.
¶3The only written evidence that the assignment was a mortgage is found in the discharge of- the assignment, written upon the back of the original mortgage. This is under seal, signed by the assignee, acknowledged, and recorded in the registry of deeds upon the margin of the record of the assignment. It acknowledges satisfaction of “the debt secured by the above assignment of the within mortgage.” And we are of opinion that no principle is violated in regarding this instrument, as between the parties, as constituting a sufficient defeasance. It is under seal, acknowledged and recorded. Though not of even date with the deed, it furnishes conclusive evidence that the assignment was made only as security for a debt; and, as we think, sufficient proof that the parties had agreed that a defeasance should be given. This would bring it within the case of Lovering v. Fogg, 18 Pick. 540, in which it was held that, on a sale of land by a deed absolute in form, but with a verbal agreement that the vendee should give a bond to reconvey on receiving payment of a debt, when such a bond was afterward given it related back, so that as between the parties themselves the deed and bond constituted a mortgage. The fact that the sum for the payment of which the assignment of the mortgage was intended as a security is not named is immaterial, because, whatever it is, it has been paid.
¶4If the assignment is taken to be a mortgage, there is no difficulty in allowing the plaintiff to maintain her action. The defendant holds no title derived from the assignee. As to all persons except the mortgagee and those claiming under him, a mortgagor is regarded as the owner of the estate, and may maintain a real action. Bradley v. Fuller, 23 Pick. 1. This rule seems equally as applicable to the case of the mortgage of a mortgage, as to any other. Exceptions overruled.