discharge his mortgage which he then held upon it? If he was a stranger to any title in the farm at the time he received the deed of the wife's dower, certainly it would amount to nothing to him, as nothing would thereby pass by such deed: Harriman v. Gray, 49 Me. 537.

It is apparent from the transactions that the parties understood and intended, when the note was given, that the mortgagee should retain his title till the debt was paid. This is shown not only from the fact that the mortgagee at that time purchased in the dower interest, but also from the fact that in the bond given at that time the title to the farm is therein recognized as still remaining in the mortgagee. Nor could it be reasonably supposed that had not such been the understanding of the parties, the mortgagee would have been willing to release the most valuable security, and rely alone upon the individual name of William Quint and a piece of real estate which had but recently been purchased for the sum of $225. This understanding and intention is also manifest from the fact that when the indebtedness of the Quints was reckoned up, and the note taken, and new bond given, there was no cancellation or surrender of the bond of January 7, 1868, neither was there any conveyance made or asked for in accordance with the terms of that bond: Watkins v. Hill, 8 Pick. 523.

In view of these facts and circumstances, together with the evidence before us, it is impossible to arrive at any other conclusion than that it was the intention of the parties, by their transactions of February 1, 1875, to leave the former security unaffected, and that the note was not intended as payment of the debt due at that time. There was a change in the form of the debt, but there was no actual payment of it. That is not enough to affect the mortgage. Nothing but payment of the debt, or its release, will discharge a mortgage: Crosby v. Chase, 17 Me. 369; Parkhurst v. Cummings, 56 Id. 159; Ladd v. Wiggin, 35 N. H. 426; 69 Am. Dec. 551. "The mortgage remains a lien until the debt it was given to secure is satisfied, and is not affected by a change of the note, or by giving a different instrument as evidence of the debt": Jones on Mortgages, sec. 924; Pomroy v. Rice, 16 Pick. 24.

At the time the plaintiff acquired his mortgage from William Quint, neither of the bonds which had been given by Paine had been recorded, and the apparent record title to the premises was in John S. Paine. The bonds were not placed upon

record till May 26, 1876,―more than a year and eight months after the plaintiff's title accrued, and then by his procurement. Moreover, as late as February 24, 1879, the plaintiff appears to have understood that Paine's mortgage was a valid, subsisting claim upon the premises, and that he held only the right of redemption under it, as appears by his statements in writing contained in the notice and demand by him on Paine's administrator for an account of the sum due on the mortgage.

Paine's interest passed and became vested in William Barron, who is in possession, as the evidence discloses, by his agent or servant, - the defendant in this suit. The rights of the defendant are the same, therefore, as those of the person whom he represents by that possession. This action could not be maintained by the mortgagor against the mortgagee or his assignee in possession without showing a satisfaction of the mortgage. Neither can it be maintained by the grantee of the mortgagor: Woods v. Woods, 66 Me. 206; Jewett v. Hamlin, 68 Id. 172; Rowell v. Jewett, 71 Id. 409.

Judgment for the defendant.

CONVEYANCE ABSOLUTE IN TERMS, accompanied by a separate defeasance, is a mortgage: Manufacturers' etc. Bank v. Bank of Pennsylvania, 42 Am. Dec. 240, and note 246; Stephens v. Sherrod, 55 Id. 776, and note 782. NOTE GIVEN FOR SIMPLE CONTRACT DEBT is prima facie evidence of pay. ment: Shumway v. Reed, 56 Am. Dec. 679, and note 681. That such evidence may be rebutted by showing the intention of the parties, see Id.; Mellege v. Boston Iron Co., 51 Id. 59, and note 73.

NOTE GIVEN FOR Antecedent DEBT is not payment of it: Weymouth v. Sanborn, 80 Ain. Dec. 144, note 149; Blunt v. Walker, 78 Id. 709, and note 718; McMurray v. Taylor, 77 Id. 611, and note 613; Nightingale v. Chaffee, 22 Am. Rep. 531.

MORTGAGE CAN ONLY BE DISCHARGED by payment or by release: Smith v. Stanley, 58 Am. Dec. 771, note 773; Ladd v. Wiggin, 69 Id. 551, and note 559.

HUDSON V. COE.

[79 MAINE, 83.]

TENANT IN COMMON MAY MAINTAIN ACTION OF INDEBITATUS ASSUMPSIT against his co-tenant who has received more than his share of the rents and profits, and this, independently of section 20, chapter 95, of the Revised Statutes of Maine.

DISPUTE IN TITLE WILL NOT PREVENT TENANT IN COMMON from maintain

ing an action of indebitatus assumpsit against his co-tenant for receiving more of his share of the rents and profits, if the plaintiff was not disseised of his estate at the date when such rents and profits were received.

IN ACTION OF INDEBITATUS ASSUMPSIT by one tenant in common against another, the plaintiff cannot recover any rents and profits received by defendant before plaintiff's title accrued.

ONE CO-TENANT DOES NOT DISSEISE ANOTHER by entering upon the land under a tax deed, and exercising such acts of ownership as tracing and running lines, paying taxes, and permitting wild grass, and occasionally timber, to be cut from year to year on various portions thereof. ENTRY OF ONE CO-TENANT IS ENTRY OF ALL.

POSSESSION OF ONE CO-TENANT IS ALWAYS PRESUMED to be in accordance with a common title until some notorious and unequivocal act of exclu. sion occurs.

ASSUMPSIT by one tenant in common against his co-tenant to recover a share of stumpage collected by the defendant from the lands of the co-tenancy.

Charles A. Bailey, for the plaintiff.

A. W. Paine, for the defendant.

By Court, FOSTER, J. The parties to this suit are tenants in common and undivided of township number 2, range 8 north, of Waldo patent in Penobscot County, containing about thirty-six square miles. The plaintiff claims to recover, as owner of eleven ninety-sixths, his share of stumpage, which the defendant, as part owner of the township, has collected and retains in his hands. The action is general indebitatus assumpsit for money had and received, and is brought, not upon Revised Statutes, chapter 95, section 20, relating to actions between tenants in common, but at common law, based upon the statute of 4 & 5 Anne, c. 16, which is declared to be a part of the common law of this state: Richardson v. Richardson, 72 Me. 403.

1. The defendant contends that the plaintiff has no remedy at common law, and that if entitled to any, it can exist only by virtue of the Revised Statutes, chapter 95, section 20, after demand in a special action of assumpsit. We are not inclined to this view, and such, we think, is not the law.

The ancient rule of the old common law, as laid down by Lord Coke (Co. Lit. 199 b), was, that one tenant in common could not maintain an action against his co-tenant for taking the whole profits of the common estate, unless he had been appointed bailiff by his co-tenant. It was thus stated: "If one tenant in common maketh his companion his bailiff of his part, he shall have an action of account against him. But, although one tenant in common, without being made bailiff, take the whole profits, no action of account lies against him;

AM. ST. REP., VOL. I.-19

for, in an action of account, he must charge him either as a guardian, bailiff, or receiver, which he cannot do unless he constitute him his bailiff." Sole occupancy alone was not sufficient upon which to maintain an action. Each was said to occupy per mi et per tout, and had a right to occupy the whole, if the other tenant did not see fit to go in and occupy with him. Such occupancy was held to be no exclusion of the other, and no action would lie against the tenant who, by such occupancy, had taken the entire profits. But by statute 4 & 5 Anne, c. 16, sec. 27, this old doctrine of the common law of England was changed, and it was therein provided that an action of account might be maintained by one joint tenant or tenant in common against the other, charging him as bailiff for receiving more than his joint share or proportion. But in order to maintain such action, it was necessary that one tenant should show, not mere occupation of the premises by another tenant in common, but an actual receipt by him of the rents and profits over and above his share thereof, and which actually belonged to his co-tenant. To avoid the somewhat tedious proceedings pertaining to the old action of account, an action on the case upon a promise to account was at first substituted: Brigham v. Eveleth, 9 Mass. 541; and afterwards Lord Holt, in construing the statute, came to the conclusion that whenever account could be maintained, indebitatus assumpsit might be also; holding that the statute, being a remedial one, it ought to receive a liberal construction: Jones v. Harraden, 9 Id. 540. While the right of action was founded on the statute of Anne, and not by any right under the old common law, from the liberal construction placed upon it by a long series of decisions, it became as firmly settled that the action of general indebitatus assumpsit for money had and received would lie, in place of the old action of account, by one tenant in common against his co-tenant, as bailiff, for receiving more than his share of the rents and profits. Such was the doctrine laid down in the cases to which we have referred; and this form of action was sustained in Miller v. Miller, 7 Pick. 133, 19 Am. Dec. 264, and 9 Pick. 34, to recover money due for the share of one tenant in common in the sale of trees from the common estate. It was allowed in Monroe v. Luke, 1 Met. 459, which was assumpsit by one tenant in common against his co-tenant to recover his share of rents; and it was there held that where it was a claim for money actually received by the defendant, to which in some form the plaintiff

has title, it could be conveniently settled in this form of action. It is said in Fanning v. Chadwick, 3 Pick. 424, 15 Am. Dec. 233, that the action of account has become nearly obsolete in England, and that there seems to be no necessity for reviving it here, and that assumpsit now has all the advantages, without the disadvantages, peculiar to an action of account. In support of the same principle may be cited Cochran v. Carrington, 25 Wend. 410; Richardson v. Richardson, 72 Me. 403; Gowen v. Shaw, 40 Id. 58; Cutler v. Currier, 54 Id. 91; Holmes v. Hunt, 122 Mass. 513; 23 Am. Rep. 381; Sargent v. Parsons, 12 Mass. 152; Dickinson v. Williams, 11 Cush. 258; 59 Am. Dec. 142. It is an equitable form of action to recover money which the defendant, in equity and good conscience, ought not to retain.

But when resorted to as the common-law action, - the outgrowth of the statute of Anne, and independently of the Revised Statutes, chapter 95, section 20, — by one tenant in common against his co-tenant, it is to be "restricted to cases where the money has been actually received, and the liability to account has resulted in a duty to pay money, or where the defendant holds the share as bailiff of the plaintiff, or the occupation has been by consent": Cutler v. Currier, 54 Me. 91.

2. It is also claimed in defense that this action cannot be sustained, because the question of title is involved in it. But we have no doubt the action will lie, notwithstanding there may be a mere dispute raised by the defendant concerning the title, provided the plaintiff is owner of the estate, and was not disseised at the date when the income from the common estate was received in money by the defendant. Such is the conclusion of this court in the recent case of Richardson v. Richardson, supra. Were it otherwise, the plaintiff in any case seeking his common-law remedy under the statute of Anne, notwithstanding his title and seisin be complete, might be subjected to the annoyance as well as expense of a nonsuit, whenever the defendant co-tenant might see fit to dispute his title. We do not mean to be understood as denying the general doctrine, where it has its proper application, that the title to real estate is not to be tried in an action of assumpsit; but we are satisfied that it has no application in the present case. It must also be borne in mind that this is not an action for use and occupation of the common estate under the Revised Statutes, chapter 95, section 20, which is a modification of the statute of Anne, but of indebitatus assumpsit au