Tenney, C. J.
Frederick A. Butman, in the year 1845, obtained judgment in this court, against Hezekiah Winslow, on a complaint under ch. 45, of the statutes of 1821, (R. S., ch. 126,) entitled “an act for the support and regulation of mills.” Under that judgment Winslow was bound to pay the sum of one cent, as the yearly damage for the flowage of the land, to which it was adjudged Butman had title.
Butman transmitted his right on the premises, so that through several mesne conveyances, the title is in the present complainant. It is admitted that the interest of Winslow in the dam, &c., is now in the respondents, under a deed dated May 19,1855. This complaint, which is dated September 3, 1855, is under the act referred to in the Revised Statutes, for an increase of the yearly damage, occasioned by the flowage of the land by the same dam.
It is conceded by the respondents, that they could have interposed no valid objection to the proceedings prayed for in the complaint, if they had no other and greater rights than those which Hezekiah Winslow originally had. But they now claim an absolute title in the promises flowed, which camo directly from the heirs of one who was a stranger to the proceedings under the original complaint, in addition to their title in the mills, dam, and mill privilege.
The right under which the respondents would now defend, is that which it is alleged that John Durgin, deceased, held at the time the original complaint was filed, from whose heirs Franklin Rollins claims to have derived a title to the premises, by deed, dated March 29, 1856. The respondents also claim the right to flow the land for the term of ten years, by virtue of a lease, from the heirs of said Durgin, in which lease there is a discharge of all right to recover damages for previous flowing. This lease bears a date similar to that of the deed to Rollins.
It is insisted by the complainant, that whatever rights may have been acquired by the respondents from the heirs of John Durgin, they, having been obtained since the institution of the present suit, cannot be a defence thereto.
[114]*114The respondents contend, that this newly acquired title, being pleaded, is a bar to the complaint. The case, as it is now presented, is in its nature a real action. The issue is touching the title to the premises. If a trial and a judgment upon that issue should follow, it would be conclusive between the parties and their privies. It is well established, that a title, in such actions, acquired after the commencement of the suit, eannot be allowed, to be introduced to defeat the claim of the demandant. In the case of Andrews and ux. v. Hooper, 13 Mass. R., 472, Wilde, J., in delivering the opinion of the court, says, “ The evidence of title, thus acquired, has been, I believe, uniformly rejected by the courts.” And it is said by Shaw, C. J., in the opinion of the court, in Curtis v. Francis, 9 Cush. R., 427, referring to this principle, “ It is now a rule of law, well settled by authorities.”
It is insisted in behalf of the respondents, that if they are precluded from setting up the title of Durgin, acquired by them since the commencement of this suit, it is available in defence, as showing a want of title in the complainant. The former judgment in favor of Butman v. Winslow is properly admitted by the respondents to be conclusive upon them, as the grantees under Winslow’s title. This judgment cannot be overhauled, between parties who. are privy thereto, and who had acquired no superior title before the commencement of this process. Such a course of proceedings would have the effect of a new trial; and if the respondents should prevail, two inconsistent judgments upon the title to the premises might stand upon the record, in what is substantially the same case.
The result to which we have come, is a final disposition of the issue, upon the title of Durgin, set up in defence, and would entitle the complainant to have the damages arising from the flowage of the premises appraised. But the question whether Franklin Rollins has at this time a title to the premises, has been argued, and it is proper that it should be examined.
[115]*115Edward Monroe conveyed the premises by deed, dated May 24, 1822, to Bean & Gray, who, on December 5, 1822, reconveyed the same in mortgage to Monroe, to secure the payment of certain promissory notes, payable January 1, 1826. The evidence introduced and reported shows that the complainant has the rights of the mortgagee, and that Rollins has those of the mortgager, whatever those rights may bo. The notes referred to in the condition of the mortgage are not produced, and it does not appear from the case whether they were actually paid or not.
Bean & Gray conveyed their right to John Durgin, by deed, dated February 3, 1824. Parol evidence was introduced, showing that Durgin once owned and occupied the promises; that he has not occupied them since the year 1831, even if he continued in the occupation till that time; and that he died about the year 1844. There is no evidence whatever that he, his heirs, or any one under him or them, or in behalf of either, have claimed title thereto, or been in possession, prior to the conveyance of his right to Franklin Rollins.
The mortgage to Monroe was assigned to Samuel Butman, on September 15, 1826, and the assignee, on June 15, 1830, conveyed by absolute deed to Frederick A. Butman. Other deeds were introduced, showing several intermediate conveyances to different persons, till the mortgage title is found in Frederick A. Butman, under a deed from Bartlett Jackson to him, dated April 18, 1838. It appears from evidence in the case, that the land was in the possession of F. A. But-man, and others, among whom were Yarney and Piper, who had each at different times a deed thereof.
It is contended on the part of the complainant, that an indefeasible title had been obtained under the mortgage to Monroe, by a possession for more than twenty years, without any claim made under the mortgager. On the other hand it is insisted, that the same length of time having elapsed since the maturity of the notes referred to in the condition of the mortgage, they are presumed to have been [116]*116paid, and the mortgage extinguished; and in confirmation of this presumption, the non-production of the notes by the complainant is relied upon.
Judge Story, in 2 Com. on Eq. Juris., s. 1028 (a), says: “ In respect to the time within which a mortgage is redeemable, it may be remarked, that the ordinary limitation is twenty years from the time when the mortgagee has entered into possession, after the breach of this condition, under his title, by analogy to ordinary limitations of rights of entry, and actions of ejectment. If, therefore, the mortgagee enters into possession, in the character of a mortgagee, and by virtue of his mortgage alone, he is for twenty years liable to account, and if payment be tendered to him, he is liable to become a trustee of the tnortgager, and be treated as such. But if the mortgager permits the mortgagee to hold the possession for twenty years, without accounting and without admitting that he possesses a mortgage title only, the mortgager loses his right of redemption, and the title of the mortgagee becomes absolute in equity, as it previously was in law.”
In note (b) to the same section, it is said, “ Limitations or considerations will, in many respects, apply to the right of foreclosure of a mortgagee.
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Tenney, C. J.
Frederick A. Butman, in the year 1845, obtained judgment in this court, against Hezekiah Winslow, on a complaint under ch. 45, of the statutes of 1821, (R. S., ch. 126,) entitled “an act for the support and regulation of mills.” Under that judgment Winslow was bound to pay the sum of one cent, as the yearly damage for the flowage of the land, to which it was adjudged Butman had title.
Butman transmitted his right on the premises, so that through several mesne conveyances, the title is in the present complainant. It is admitted that the interest of Winslow in the dam, &c., is now in the respondents, under a deed dated May 19,1855. This complaint, which is dated September 3, 1855, is under the act referred to in the Revised Statutes, for an increase of the yearly damage, occasioned by the flowage of the land by the same dam.
It is conceded by the respondents, that they could have interposed no valid objection to the proceedings prayed for in the complaint, if they had no other and greater rights than those which Hezekiah Winslow originally had. But they now claim an absolute title in the promises flowed, which camo directly from the heirs of one who was a stranger to the proceedings under the original complaint, in addition to their title in the mills, dam, and mill privilege.
The right under which the respondents would now defend, is that which it is alleged that John Durgin, deceased, held at the time the original complaint was filed, from whose heirs Franklin Rollins claims to have derived a title to the premises, by deed, dated March 29, 1856. The respondents also claim the right to flow the land for the term of ten years, by virtue of a lease, from the heirs of said Durgin, in which lease there is a discharge of all right to recover damages for previous flowing. This lease bears a date similar to that of the deed to Rollins.
It is insisted by the complainant, that whatever rights may have been acquired by the respondents from the heirs of John Durgin, they, having been obtained since the institution of the present suit, cannot be a defence thereto.
[114]*114The respondents contend, that this newly acquired title, being pleaded, is a bar to the complaint. The case, as it is now presented, is in its nature a real action. The issue is touching the title to the premises. If a trial and a judgment upon that issue should follow, it would be conclusive between the parties and their privies. It is well established, that a title, in such actions, acquired after the commencement of the suit, eannot be allowed, to be introduced to defeat the claim of the demandant. In the case of Andrews and ux. v. Hooper, 13 Mass. R., 472, Wilde, J., in delivering the opinion of the court, says, “ The evidence of title, thus acquired, has been, I believe, uniformly rejected by the courts.” And it is said by Shaw, C. J., in the opinion of the court, in Curtis v. Francis, 9 Cush. R., 427, referring to this principle, “ It is now a rule of law, well settled by authorities.”
It is insisted in behalf of the respondents, that if they are precluded from setting up the title of Durgin, acquired by them since the commencement of this suit, it is available in defence, as showing a want of title in the complainant. The former judgment in favor of Butman v. Winslow is properly admitted by the respondents to be conclusive upon them, as the grantees under Winslow’s title. This judgment cannot be overhauled, between parties who. are privy thereto, and who had acquired no superior title before the commencement of this process. Such a course of proceedings would have the effect of a new trial; and if the respondents should prevail, two inconsistent judgments upon the title to the premises might stand upon the record, in what is substantially the same case.
The result to which we have come, is a final disposition of the issue, upon the title of Durgin, set up in defence, and would entitle the complainant to have the damages arising from the flowage of the premises appraised. But the question whether Franklin Rollins has at this time a title to the premises, has been argued, and it is proper that it should be examined.
[115]*115Edward Monroe conveyed the premises by deed, dated May 24, 1822, to Bean & Gray, who, on December 5, 1822, reconveyed the same in mortgage to Monroe, to secure the payment of certain promissory notes, payable January 1, 1826. The evidence introduced and reported shows that the complainant has the rights of the mortgagee, and that Rollins has those of the mortgager, whatever those rights may bo. The notes referred to in the condition of the mortgage are not produced, and it does not appear from the case whether they were actually paid or not.
Bean & Gray conveyed their right to John Durgin, by deed, dated February 3, 1824. Parol evidence was introduced, showing that Durgin once owned and occupied the promises; that he has not occupied them since the year 1831, even if he continued in the occupation till that time; and that he died about the year 1844. There is no evidence whatever that he, his heirs, or any one under him or them, or in behalf of either, have claimed title thereto, or been in possession, prior to the conveyance of his right to Franklin Rollins.
The mortgage to Monroe was assigned to Samuel Butman, on September 15, 1826, and the assignee, on June 15, 1830, conveyed by absolute deed to Frederick A. Butman. Other deeds were introduced, showing several intermediate conveyances to different persons, till the mortgage title is found in Frederick A. Butman, under a deed from Bartlett Jackson to him, dated April 18, 1838. It appears from evidence in the case, that the land was in the possession of F. A. But-man, and others, among whom were Yarney and Piper, who had each at different times a deed thereof.
It is contended on the part of the complainant, that an indefeasible title had been obtained under the mortgage to Monroe, by a possession for more than twenty years, without any claim made under the mortgager. On the other hand it is insisted, that the same length of time having elapsed since the maturity of the notes referred to in the condition of the mortgage, they are presumed to have been [116]*116paid, and the mortgage extinguished; and in confirmation of this presumption, the non-production of the notes by the complainant is relied upon.
Judge Story, in 2 Com. on Eq. Juris., s. 1028 (a), says: “ In respect to the time within which a mortgage is redeemable, it may be remarked, that the ordinary limitation is twenty years from the time when the mortgagee has entered into possession, after the breach of this condition, under his title, by analogy to ordinary limitations of rights of entry, and actions of ejectment. If, therefore, the mortgagee enters into possession, in the character of a mortgagee, and by virtue of his mortgage alone, he is for twenty years liable to account, and if payment be tendered to him, he is liable to become a trustee of the tnortgager, and be treated as such. But if the mortgager permits the mortgagee to hold the possession for twenty years, without accounting and without admitting that he possesses a mortgage title only, the mortgager loses his right of redemption, and the title of the mortgagee becomes absolute in equity, as it previously was in law.”
In note (b) to the same section, it is said, “ Limitations or considerations will, in many respects, apply to the right of foreclosure of a mortgagee. If he has supposed the mortgager to remain in possession for twenty years after the breach of the condition, without any payment of interest, or any admission of the debt, or other duty, the right to file a bill for a foreclosure will generally be deemed to be barred and extinguished. However, in cases of this sort, as the bar is not positive, but is founded upon a presumption of payment, it is open to be rebutted by circumstances.”
Notwithstanding the lapse- of more than twenty years since the maturity of the notes referred to in the condition of the mortgage, and the non-production thereof by the complainant, the facts and circumstances are altogether inconsistent with a claim by Durgin or his heirs under the mortgage. The inducement in Durgin to pay the notes, and thereby extinguish the mortgage, would extend to the taking [117]*117of possession of tbe land as the fruit of the payment. And the omission to do the latter, is very strong circumstantial evidence that lie omitted to do the former. The motives which are supposed to have operated upon his mind, would influence the minds of his heirs after his decease.
During the time when Durgin and his heirs made no claim to the premises, and are not shown to have taken the least concern therein, we find them passing by absolute deeds from one to another, whose claim was under the mortgage. Piper had a deed from E. A. Butman, whose title was from the assignee of the mortgagee, as early at least as 1844, and he is shown to have been in the occupation, as well as But-man, and Varney, who had title to the land by deed; and various other persons have been in possession, as one succeeded the other, by absolute conveyances.
It cannot be doubted, that Durgin released his right in some manner, that he abandoned the premises, and never resumed the possession thereof, or that the mortgage to Monroe was foreclosed. The ground taken by the respondents is, that the right of Durgin remained in him and his heirs, till the conveyance of that right on March 29, 1856. If so, the facts clearly show an abandonment on his part, and that of his heirs. And though it is not expressly proved, that there was a continued possession of the complainant and those under whom he claims, yet the facts upon this matter, in connection with absence of all proof of the assertion of any right whatever under the title claimed by the respondents, leave little doubt that a possession under the mortgage, from 1831 to the date of this complaint, actually existed. Whether it was so or not, is not material for the disposition of the case as it is now before us. The presumption of the payment of the notes being rebutted from evidence reported, the title has become absolute in the complainant, under the mortgage, to the premises, or the mortgage is still open to redemption. The absolute rights of the parties, as they respectively claim under the mortgagee and the mortgager, we cannot now definitely determine. But the title under the [118]*118former proceedings between Butman and Winslow being settled, as between these parties, the complainant is entitled to
Judgment for an appraisal of the damages, according to the prayer in his complaint.