Hammond, J.
The rule at the common law was that at least where there had been no adjudication of unsoundness of mind and no guardian or committee appointed and the mental trouble was not shown to be congenital, a non compos defendant of full age in an action at law must appear by attorney, and the failure tp appoint a guardian ad litem was not error. Beverley's ease, 4 Co. 123b. Chit. Pl. (16th Am. ed.) 577. 2 Wms. Saund. 333. King v. Robinson, 33 Maine, 114.
In equity, however, the rule is different, and a guardian ad [218]*218litem should in such case be appointed. Wilson v. Grace, 14 Ves. 172. Dan. Ch. Pl. & Pr. 176, and cases cited. Mitchell v. Kingman, 5 Pick. 431, 434. Emery v. Parrott, 107 Mass. 95.
Even if under the statutes and practice in this State a guardian in such a case as this should be appointed, (see Mitchell v. Kingman, ubi supra; Pub. Sts. c. 139, § 43 ; c. 165, § 25,) we see no error in this respect in the proceedings. While the case was pending in the police court, the attorney for the other defendants was appointed guardian ad litem to represent the interest of the non compos defendant. He was thus the guardian for the case, and, in the absence of anything appearing to the contrary, it may fairly be assumed that in the proceedings in the appellate court he was acting in the same capacity, so far as the interests of the non compos defendant were involved.
It was within the discretion of the court to allow the plaintiff to discontinue as to William F. Davis. It was in substance a nonsuit of the plaintiff as to him, and by leave of the court a plaintiff may become nonsuit even at the close of the evidence, except where a set-off has been filed. Pub. Sts. c. 168, § 21. Pub. Sts. c. 167, § 42. Gray v. Cook, 135 Mass. 189. Taft v. Church, 164 Mass. 504. Truro v. Atkins, 122 Mass. 418.
The action is brought by the administrator de bonis non of the estate of the mortgagee, and it is objected by the defendant that he is not the proper person to represent the estate in this respect.
By Pub. Sts. c. 133, § 6, it is provided that “ When a mortgagee of real estate . . . dies without having foreclosed the right of redemption, the mortgaged premises and the debt secured thereby shall be considered as personal assets in the hands of his executor or administrator, and shall be administered and accounted for as such ; and if the deceased has not in his lifetime obtained possession of the mortgaged premises, his executor or administrator may take possession thereof by open and peaceable entry or by action, in like manner as the deceased might have done if living.” See Taft v. Stevens, 3 Gray, 504.
It does not appear by the bill of exceptions whether the entry in August, 1888, to foreclose, was made by the mortgagee or by the administrator; or whether the foreclosure had been com[219]*219pleted before the death of the mortgagee; and, inasmuch as this point is not pressed in the brief of the defendants and the evidence relating to it is not reported, we infer that the evidence at the trial showed that the foreclosure was not completed before his death. At any rate, in the absence of any report of the evidence on the subject, we cannot, say that it was.
And we think that the administrator may avail himself of the provisions of Pub. Sts. c. 175, “in like manner as the deceased might have done if living,” and that the process of forcible entry and detainer may be maintained when a mortgage has been foreclosed by entry without the exercise of a power of sale. Such is the plain reading of' the statute, for the language is that the process will lie “ when a mortgage of real estate has been foreclosed by a sale under a power contained therein or otherwise.”
The most important questions are those which arise out of the evidence concerning the proof and validity of the mortgage title under which the plaintiff claims.
The mortgage was dated December 20, 1859. It purported to be executed in the presence of two witnesses, both of whom were alive at the time of the trial and were defendants in the case, one of them being the insane defendant and the other actually present in court; but the plaintiff declined to call either attesting witness, and insisted that the mortgage deed, being more than thirty years old, proved itself.
The defendants objected to the introduction of the deed on the ground that there was no legal proof of its execution, and that to entitle it to be admitted as evidence upon its mere production and an offer of it in evidence, it must appear that it was followed by a possession under it; but the court overruled the objection and admitted the deed without further proof.
It is a general rule that deeds appearing to be more than thirty years old, which come from the proper custody and are otherwise free from just grounds of suspicion, are admissible without any proof of execution. And while in some States the rule is not applicable if there is a living attesting witness within reach of the process of the court, (Smith v. Rankin, 20 Ill. 14, Thompson v. Brannon, 14 S. C. 542,) the general practice is the other way, and the rule is considered applicable even if the [220]*220witness be living and actually in court. 1 Greenl. Ev. §§ 21, 570, and eases cited. Green v. Chelsea, 24 Pick. 71. Jackson v. Christman, 4 Wend, 277. Gardner v. Granniss, 57 Ga. 539. Shaw v. Pershing, 57 Mo. 416.
There has been njuch diversity of opinion whether the rule applies in cases of deeds of real estate where there is no proof of possession, but in England the doctrine seems to be that the absence of such proof goes rather to the weight of the evidence than to its admissibility; and in the United States the great weight of authority is that the deed is admissible without such proof. 1 Greenl. Ev. § 21. Barr v. Gratz, 4 Wheat. 213. Harlan v. Howard, 79 Ky. 373. Hewlett v. Cock, 7 Wend. 371. See also 2 Am. & Eng. Encyc. of Law, (2d ed.) notes to pp. 327, 328, for collection of the cases.
The deed in question was a mortgage. Such an instrument is not usually followed by the possession of the mortgagee, and its admission without evidence of possession was correct.
At the time of the entry to foreclose, the mortgage note had been more than twenty years overdue, and, to rebut the presumption of payment arising from lapse of time, the plaintiff offered in evidence the memorandum of May 10, 1866, on the back of the note, and a certain other note found among the papers of the intestate’s estate of the same date and amount as named in that memorandum. This last note was payable to the order of the intestate in six years from its date, with interest annually, was signed by William Davis and duly attested. Upon this second note was an indorsement of a payment in 1874, in the handwriting of a daughter of the payee, who was a witness and a party in interest in this suit. She testified that she made this indorsement in the presence of the maker, at the request of her mother, to whom the money was claimed to be paid, the money being then on the table when the indorsement was made.
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Hammond, J.
The rule at the common law was that at least where there had been no adjudication of unsoundness of mind and no guardian or committee appointed and the mental trouble was not shown to be congenital, a non compos defendant of full age in an action at law must appear by attorney, and the failure tp appoint a guardian ad litem was not error. Beverley's ease, 4 Co. 123b. Chit. Pl. (16th Am. ed.) 577. 2 Wms. Saund. 333. King v. Robinson, 33 Maine, 114.
In equity, however, the rule is different, and a guardian ad [218]*218litem should in such case be appointed. Wilson v. Grace, 14 Ves. 172. Dan. Ch. Pl. & Pr. 176, and cases cited. Mitchell v. Kingman, 5 Pick. 431, 434. Emery v. Parrott, 107 Mass. 95.
Even if under the statutes and practice in this State a guardian in such a case as this should be appointed, (see Mitchell v. Kingman, ubi supra; Pub. Sts. c. 139, § 43 ; c. 165, § 25,) we see no error in this respect in the proceedings. While the case was pending in the police court, the attorney for the other defendants was appointed guardian ad litem to represent the interest of the non compos defendant. He was thus the guardian for the case, and, in the absence of anything appearing to the contrary, it may fairly be assumed that in the proceedings in the appellate court he was acting in the same capacity, so far as the interests of the non compos defendant were involved.
It was within the discretion of the court to allow the plaintiff to discontinue as to William F. Davis. It was in substance a nonsuit of the plaintiff as to him, and by leave of the court a plaintiff may become nonsuit even at the close of the evidence, except where a set-off has been filed. Pub. Sts. c. 168, § 21. Pub. Sts. c. 167, § 42. Gray v. Cook, 135 Mass. 189. Taft v. Church, 164 Mass. 504. Truro v. Atkins, 122 Mass. 418.
The action is brought by the administrator de bonis non of the estate of the mortgagee, and it is objected by the defendant that he is not the proper person to represent the estate in this respect.
By Pub. Sts. c. 133, § 6, it is provided that “ When a mortgagee of real estate . . . dies without having foreclosed the right of redemption, the mortgaged premises and the debt secured thereby shall be considered as personal assets in the hands of his executor or administrator, and shall be administered and accounted for as such ; and if the deceased has not in his lifetime obtained possession of the mortgaged premises, his executor or administrator may take possession thereof by open and peaceable entry or by action, in like manner as the deceased might have done if living.” See Taft v. Stevens, 3 Gray, 504.
It does not appear by the bill of exceptions whether the entry in August, 1888, to foreclose, was made by the mortgagee or by the administrator; or whether the foreclosure had been com[219]*219pleted before the death of the mortgagee; and, inasmuch as this point is not pressed in the brief of the defendants and the evidence relating to it is not reported, we infer that the evidence at the trial showed that the foreclosure was not completed before his death. At any rate, in the absence of any report of the evidence on the subject, we cannot, say that it was.
And we think that the administrator may avail himself of the provisions of Pub. Sts. c. 175, “in like manner as the deceased might have done if living,” and that the process of forcible entry and detainer may be maintained when a mortgage has been foreclosed by entry without the exercise of a power of sale. Such is the plain reading of' the statute, for the language is that the process will lie “ when a mortgage of real estate has been foreclosed by a sale under a power contained therein or otherwise.”
The most important questions are those which arise out of the evidence concerning the proof and validity of the mortgage title under which the plaintiff claims.
The mortgage was dated December 20, 1859. It purported to be executed in the presence of two witnesses, both of whom were alive at the time of the trial and were defendants in the case, one of them being the insane defendant and the other actually present in court; but the plaintiff declined to call either attesting witness, and insisted that the mortgage deed, being more than thirty years old, proved itself.
The defendants objected to the introduction of the deed on the ground that there was no legal proof of its execution, and that to entitle it to be admitted as evidence upon its mere production and an offer of it in evidence, it must appear that it was followed by a possession under it; but the court overruled the objection and admitted the deed without further proof.
It is a general rule that deeds appearing to be more than thirty years old, which come from the proper custody and are otherwise free from just grounds of suspicion, are admissible without any proof of execution. And while in some States the rule is not applicable if there is a living attesting witness within reach of the process of the court, (Smith v. Rankin, 20 Ill. 14, Thompson v. Brannon, 14 S. C. 542,) the general practice is the other way, and the rule is considered applicable even if the [220]*220witness be living and actually in court. 1 Greenl. Ev. §§ 21, 570, and eases cited. Green v. Chelsea, 24 Pick. 71. Jackson v. Christman, 4 Wend, 277. Gardner v. Granniss, 57 Ga. 539. Shaw v. Pershing, 57 Mo. 416.
There has been njuch diversity of opinion whether the rule applies in cases of deeds of real estate where there is no proof of possession, but in England the doctrine seems to be that the absence of such proof goes rather to the weight of the evidence than to its admissibility; and in the United States the great weight of authority is that the deed is admissible without such proof. 1 Greenl. Ev. § 21. Barr v. Gratz, 4 Wheat. 213. Harlan v. Howard, 79 Ky. 373. Hewlett v. Cock, 7 Wend. 371. See also 2 Am. & Eng. Encyc. of Law, (2d ed.) notes to pp. 327, 328, for collection of the cases.
The deed in question was a mortgage. Such an instrument is not usually followed by the possession of the mortgagee, and its admission without evidence of possession was correct.
At the time of the entry to foreclose, the mortgage note had been more than twenty years overdue, and, to rebut the presumption of payment arising from lapse of time, the plaintiff offered in evidence the memorandum of May 10, 1866, on the back of the note, and a certain other note found among the papers of the intestate’s estate of the same date and amount as named in that memorandum. This last note was payable to the order of the intestate in six years from its date, with interest annually, was signed by William Davis and duly attested. Upon this second note was an indorsement of a payment in 1874, in the handwriting of a daughter of the payee, who was a witness and a party in interest in this suit. She testified that she made this indorsement in the presence of the maker, at the request of her mother, to whom the money was claimed to be paid, the money being then on the table when the indorsement was made. She did not testify to the amount of money then upon the table, and there was no other evidence that the maker knew the contents of the paper upon which this indorsement was made, or that he ever saw it after it was made.
To the introduction of all this evidence the defendants objected, on the ground that there was no connection shown between the second note and the original note, and that the [221]*221indorsement on the back of the original mortgage note, whether in the handwriting of the payee or of any other person, made without the knowledge of William Davis or of the defendants, would not be competent to prove that said second note was given in payment of the first or mortgage note, and objected to the admission of the indorsement on the mortgage note and its recital as incompetent for any purpose whatever ; but the court overruled the objection and admitted the evidence.
The indorsement upon the first .note and the second note both bear the same date, namely, May 10, 1866, and in the absence of evidence to the contrary each may be assumed to have been made on that date. At that time the mortgagee had two papers as security for his debt, — the mortgage and the note. Each was independent of the other, and he could have pursued his remedy upon either or both to secure his claim. He could have discharged the mortgage and relied solely upon the note, or he could have agreed to forego his right to charge the maker of the note personally and relied solely upon the mortgage; and even if by reason of the statute of limitations or of a discharge of the maker in insolvency, or by a renewal of the note, he had lost the right to recover upon it, the debt being still unpaid, he still could have held his mortgage as security and pursued his remedies thereon. The latter, unless discharged, remained in force until the debt is paid, or the right to enforce it is barred by the presumption of payment from the lapse of time. Jones on Mortgages, § 1204. Thayer v. Mann, 19 Pick. 535. Norton v. Palmer, 142 Mass. 433. Under these circumstances this memorandum was made upon the first note, and the second note was given by the mortgagor to the mortgagee for the. amount set forth in the memorandum. No money seems to have been paid. A computation of the sum due upon the first note, giving due credit for all the indorsements thereon, shows that the sum therein named was a fair statement of the balance. The first note shows no further payments, while there are two indorsements upon the second note. The mortgage was not discharged, but both the second note and the mortgage were kept by the mortgagee. The memorandum may be assumed to have been made in the due course of business, and when there does not appear to have been any inducement to falsify. To a certain extent, also, [222]*222it was an entry against the interest of the mortgagee, for while it did not purport to be a statement that the note was paid, still it did in substance cancel the note, and the mortgagee was thereby deprived of. his right to collect his debt by proceeding thereon. At least, for the purpose of showing that he had lost this right, the memorandum was competent and was rightly admitted. Giving to it no other or further probative effect than this, and without reciting the evidence further in detail, we think the judge who tried the case was justified in finding that the second note was not regarded by the parties as a payment of the debt, but as a renewal of the old note for the balance unpaid, and that the payment of $100 was made by the mortgagor in 1874 upon the new note, and was part payment of the debt secured by the mortgage.
It follows that the mortgage was a valid outstanding mortgage at the time of the entry to foreclose. After the entry to foreclose the mortgagor and those claiming under him became tenants at sufferance of the mortgagee, and, in the absence of any evidence of an adverse holding, they are assumed to hold under him, and their possession is his, during the three years, until the completion of the foreclosure in August, 1891. Ellis v. Drake, 8. Allen, 161. Porter v. Hubbard, 134 Mass. 233.
The writ is dated in March, 1894, which is less than three years from the foreclosure, and since the defendant’s estate was not ended until the completion of the foreclosure, the action was brought within the time prescribed by Pub. Sts. c. 175, § 10.
The second request was rightly refused because not applicable, since it appears by the bill of exceptions that two of these defendants were living upon the premises when the suit was commenced.
The third request was rightly refused because not applicable to the state of the case as finally submitted to the court.
Exceptions overruled.