The opinion of the Court was drawn up by
Tenney, C. J.
The testator, having, in his will of May 31, 1823, made certain specific devises of real estate, disposed of the residue thereof in the following language: — “I also give and devise unto my children, and their respective heirs and assigns, forever, all my real estate, not otherwise disposed of, in equal shares and proportions, when the youngest of them comes to the age of twenty-one years; and it is my will, that my real estate shall not be divided among them, until my youngest surviving child, in case of the decease of any of them, arrives at the age of twenty-one years; it is also my will, that [98]*98my children, nor any of them shall have power to sell, alienate or convey in any way or manner whatsoever, or cause the same to be divided, his or her part of any real estate, until my youngest surviving child comes to the age of twenty-one years. And it is my will, that each one’s proportion of the rents and profits of my real estate, shall be paid to my children, respectively, when they arrive at the age of twenty-one years, and to my daughters at the time of their marriage.” The testator nominated, constituted and appointed his friends, Wooster Tuttle and Ezra Whitney, jointly and severally, to be his executors of said last will and testament.
In a codicil to the same will, the persons appointed therein executors, and the survivor of them, were authorized, empowered and requested, to take into their care and management, all the real estate of which the testator should die possessed, ■and make all such contracts or agreements, as they should think most for the interest of his children, by renting or leasing ■all or any part of his real estate, for such term or number of years as they shall think best, and for the best rent which can be obtained, — to make any contracts or agreements with the lessees for any buildings, or improvements to be made thereon by the lessees, and for the purchase or sale of the same buildings, or improvements, at the end of the term respectively; and they were further authorized and empowered to make such improvements upon all or any part of his real estate, by repairing buildings, completing any unfinished one, erecting buildings, rebuilding, enclosing and fencing as they shall deem proper, and so as to render the same productive, by afterwards leasing or renting them.
So far as the will, in this case, confers upon the persons who were constituted the executors thereof, and who accepted the trust, and who were duly qualified to act in that capacity, the .care and management of the real estate, so devised, its effect is similar to that of the will referred to in the case of Deering v. Adams, 31 Maine, 264, in which it was held, that the executors took, under the will, a fee simple estate in trust, defeasible at the end of twenty years, the term, during which, by [99]*99the will, the estate was not to vest in her grandchildren, and, by the authority of that case, the executors under the will, in the case at bar, took a similar estate in trust, defeasible when the youngest surviving child came to the age of twenty-one years, which was Sept. 20,1839, the testator having died Dec. 13, 1823, and his will having been duly proved, approved and allowed on March 18, 1824.
The premises in question were a part of the real estate of which Elias Bates died possessed, and, on March 26, 1831, Henry Bates, 2d, afterwards Winslow Bates, his son, made, executed and delivered to Wooster Tuttle and Ezra Whitney, as executors of the will of Elias Bates, a mortgage of all his right, title and interest to and in the estate of the said Elias Bates; “ the condition of the deed being such, that, whereas the said Tuttle and Whitney, executors as aforesaid, having appointed the said Henry Bates, 2d, (one of the legatees of said Elias Bates,) their agent, and having authorized the said Henry to collect and settle any demands in favor or against said estate, also to let any dwellinghouse or store, or any other real or personal property, belonging to the same, the said Henry Bates to be at all times under the advice and control of said executors, if the said Henry shall faithfully and honestly perform the above trust and agency, then the deed to be null and void, otherwise to remain absolute.”
On March 3,1834, the same Henry Bates, 2d, then Winslow Bates, made, executed and delivered to Joseph Richardson and Benjamin D. Whitney, their heirs and assigns forever, for security of his note to them, for the sum of §2548,74, of the same date, and interest in one year, all right, title and interest, which he had, as one of the heirs in the estate of his father, Elias Bates, deceased, by virtue of his last will and testament, or otherwise.
A notice was published, and recorded according to law, on Nov. 15, 1840, for the purpose of foreclosing the mortgage to Richardson & Whitney, and, notwithstanding it is objected that it was insufficient, in matter of substance, to answer the requirement of the statute, we think otherwise.
[100]*100A notice, for the purpose of effecting a foreclosure of the mortgage to Tuttle and Whitney, was duly published, and was recorded on Aug. 30, 1841, by Thomas G-. Hathaway, who married a daughter of Elias Bates; Tuttle and Whitney having assigned to him the mortgage from Henry Bates, 2d, on April 11, 1840.
On Nov. 6, 1841, Thomas G-. Hathaway leased his interest in the premises in dispute, to the tenant, for the term of twenty-one years; and, on April 30, 1853, in consideration of the sum of six hundred dollars, conveyed to him the same, with covenants of warranty.
On Aug. 29, 1855, Benjamin D. Whitney, one of the mortgagees in the mortgage of Winslow Bates to Richardson & Whitney, released to the demandant all his interest in the premises demanded, in a deed of that date, with a covenant of non-claim; and, on Sept. 5, 1857, Richardson, the other mortgagee, did the same, in a deed in all respects similar.
It does not appear, that Winslow Bates, or those claiming under him, took possession of the demanded premises, or was in occupation thereof; but, it appears, that after the deed from Tuttle and Whitney to T. Gf. Hathaway, in the fall of 1840, the tenant went into possession of the same, by the permission of Hathaway, and has continued in possession since that time.
The case contains no evidence of the payment of the note of Winslow Bates to Richardson & Whitney, secured by his mortgage to them; and there is none that it was not paid.
Wooster Tuttle, by an instrument under seal, dated Oct. 26, 1839, remised, released and quit-claimed unto Winslow Bates, all actions and causes of action, and all claims or demands whatever, both at law and in equity, or otherwise, he ever had against him, then had, or which his .heirs, executors or administrators can, shall or may have, claim or demand, for or by reason of any act, matter, cause or thing, from the 28th day of March, 1831, to the date of the release. Ezra Whitney, on Oct. 23, 1839, acknowledges the receipt, from Winslow Bates, as his agent, of the sum of $44,69, in full for [101]*101his account against the estate of E. Bates, to the date thereof, and in full for all debts due, claims and demands against said Bates, on account of his agency, from the 28 th of March, 1831, to the date of the receipt. But it does not appear that the mortgage, given to Tuttle and Whitney, was ever formally discharged.
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The opinion of the Court was drawn up by
Tenney, C. J.
The testator, having, in his will of May 31, 1823, made certain specific devises of real estate, disposed of the residue thereof in the following language: — “I also give and devise unto my children, and their respective heirs and assigns, forever, all my real estate, not otherwise disposed of, in equal shares and proportions, when the youngest of them comes to the age of twenty-one years; and it is my will, that my real estate shall not be divided among them, until my youngest surviving child, in case of the decease of any of them, arrives at the age of twenty-one years; it is also my will, that [98]*98my children, nor any of them shall have power to sell, alienate or convey in any way or manner whatsoever, or cause the same to be divided, his or her part of any real estate, until my youngest surviving child comes to the age of twenty-one years. And it is my will, that each one’s proportion of the rents and profits of my real estate, shall be paid to my children, respectively, when they arrive at the age of twenty-one years, and to my daughters at the time of their marriage.” The testator nominated, constituted and appointed his friends, Wooster Tuttle and Ezra Whitney, jointly and severally, to be his executors of said last will and testament.
In a codicil to the same will, the persons appointed therein executors, and the survivor of them, were authorized, empowered and requested, to take into their care and management, all the real estate of which the testator should die possessed, ■and make all such contracts or agreements, as they should think most for the interest of his children, by renting or leasing ■all or any part of his real estate, for such term or number of years as they shall think best, and for the best rent which can be obtained, — to make any contracts or agreements with the lessees for any buildings, or improvements to be made thereon by the lessees, and for the purchase or sale of the same buildings, or improvements, at the end of the term respectively; and they were further authorized and empowered to make such improvements upon all or any part of his real estate, by repairing buildings, completing any unfinished one, erecting buildings, rebuilding, enclosing and fencing as they shall deem proper, and so as to render the same productive, by afterwards leasing or renting them.
So far as the will, in this case, confers upon the persons who were constituted the executors thereof, and who accepted the trust, and who were duly qualified to act in that capacity, the .care and management of the real estate, so devised, its effect is similar to that of the will referred to in the case of Deering v. Adams, 31 Maine, 264, in which it was held, that the executors took, under the will, a fee simple estate in trust, defeasible at the end of twenty years, the term, during which, by [99]*99the will, the estate was not to vest in her grandchildren, and, by the authority of that case, the executors under the will, in the case at bar, took a similar estate in trust, defeasible when the youngest surviving child came to the age of twenty-one years, which was Sept. 20,1839, the testator having died Dec. 13, 1823, and his will having been duly proved, approved and allowed on March 18, 1824.
The premises in question were a part of the real estate of which Elias Bates died possessed, and, on March 26, 1831, Henry Bates, 2d, afterwards Winslow Bates, his son, made, executed and delivered to Wooster Tuttle and Ezra Whitney, as executors of the will of Elias Bates, a mortgage of all his right, title and interest to and in the estate of the said Elias Bates; “ the condition of the deed being such, that, whereas the said Tuttle and Whitney, executors as aforesaid, having appointed the said Henry Bates, 2d, (one of the legatees of said Elias Bates,) their agent, and having authorized the said Henry to collect and settle any demands in favor or against said estate, also to let any dwellinghouse or store, or any other real or personal property, belonging to the same, the said Henry Bates to be at all times under the advice and control of said executors, if the said Henry shall faithfully and honestly perform the above trust and agency, then the deed to be null and void, otherwise to remain absolute.”
On March 3,1834, the same Henry Bates, 2d, then Winslow Bates, made, executed and delivered to Joseph Richardson and Benjamin D. Whitney, their heirs and assigns forever, for security of his note to them, for the sum of §2548,74, of the same date, and interest in one year, all right, title and interest, which he had, as one of the heirs in the estate of his father, Elias Bates, deceased, by virtue of his last will and testament, or otherwise.
A notice was published, and recorded according to law, on Nov. 15, 1840, for the purpose of foreclosing the mortgage to Richardson & Whitney, and, notwithstanding it is objected that it was insufficient, in matter of substance, to answer the requirement of the statute, we think otherwise.
[100]*100A notice, for the purpose of effecting a foreclosure of the mortgage to Tuttle and Whitney, was duly published, and was recorded on Aug. 30, 1841, by Thomas G-. Hathaway, who married a daughter of Elias Bates; Tuttle and Whitney having assigned to him the mortgage from Henry Bates, 2d, on April 11, 1840.
On Nov. 6, 1841, Thomas G-. Hathaway leased his interest in the premises in dispute, to the tenant, for the term of twenty-one years; and, on April 30, 1853, in consideration of the sum of six hundred dollars, conveyed to him the same, with covenants of warranty.
On Aug. 29, 1855, Benjamin D. Whitney, one of the mortgagees in the mortgage of Winslow Bates to Richardson & Whitney, released to the demandant all his interest in the premises demanded, in a deed of that date, with a covenant of non-claim; and, on Sept. 5, 1857, Richardson, the other mortgagee, did the same, in a deed in all respects similar.
It does not appear, that Winslow Bates, or those claiming under him, took possession of the demanded premises, or was in occupation thereof; but, it appears, that after the deed from Tuttle and Whitney to T. Gf. Hathaway, in the fall of 1840, the tenant went into possession of the same, by the permission of Hathaway, and has continued in possession since that time.
The case contains no evidence of the payment of the note of Winslow Bates to Richardson & Whitney, secured by his mortgage to them; and there is none that it was not paid.
Wooster Tuttle, by an instrument under seal, dated Oct. 26, 1839, remised, released and quit-claimed unto Winslow Bates, all actions and causes of action, and all claims or demands whatever, both at law and in equity, or otherwise, he ever had against him, then had, or which his .heirs, executors or administrators can, shall or may have, claim or demand, for or by reason of any act, matter, cause or thing, from the 28th day of March, 1831, to the date of the release. Ezra Whitney, on Oct. 23, 1839, acknowledges the receipt, from Winslow Bates, as his agent, of the sum of $44,69, in full for [101]*101his account against the estate of E. Bates, to the date thereof, and in full for all debts due, claims and demands against said Bates, on account of his agency, from the 28 th of March, 1831, to the date of the receipt. But it does not appear that the mortgage, given to Tuttle and Whitney, was ever formally discharged.
Was the mortgage to Richardson & Whitney, by Winslow Bates, entirely ineffectual ? He undertook therein to do nothing forbidden by the will, but to convey all the right, title and interest, which he had under the same, as one of the heirs or otherwise, to the real estate therein described. Iiis interest was in the nature of a vested remainder, the will having provided that, after the youngest surviving child should become of the age of twenty-one years, he, and his heirs and assigns forever, should be entitled to his share in the real estate. The person entitled to a vested remainder has an immediate fixed right of future enjoyment; — that is, an estate in presentí, though it is only to take effect, and pernancy of the profits, at a future period, and charged much in the same manner as an estate in possession. 2 Cruise, 188.
It is said, by Chancellor Kent, 4 Com. p. 254, 1st ed., “ a vested remainder, lying in grant, passes by deed, without livery, — but a contingent remainder is a mere right, and cannot be transferred, before the contingency happens, otherwise than by way of estoppel.” R. S. of 1841, c. 91, § 4.
Winslow Bates, by his father’s will, had an immediate, fixed right of future enjoyment of his share in the estate; that enjoyment to commence when the estate in trust of the executors should be determined. By the assignment of his right in the mortgage, the assignees could take the right which he had, and no other, subject to his right of redemption. This in no wise conflicted with the devise in the will of the testator’s real estate. He intended that it should remain entire and undivided, with no power to sell or alienate in his children, till the youngest survivor of them should arrive at the age of twenty-one years. At that time the restriction was to be removed, and they could possess the estate and dispose [102]*102of the same. The basis of a division, was to be the value of the estate, at that time, and not before.
It is objected, in behalf of the tenant, that the deed of B. D. Whitney, of August 29, 1855, releasing to the demandant, with a covenant of non-claim, all his interest in the premises; and that of Joseph Richardson, on Sept. 5,1851, also releasing his interest, with a similar covenant, are without effect, they having been made at different times by those, who, it is insisted, were joint tenants. If their mortgage was foreclosed, and the title absolute in them, that foreclosure operated as a new purchase, and the grantees held the estate afterwards as tenants in common. Goodwin v. Richardson, 11 Mass. 469; Kinsley v. Abbott, 19 Maine, 430; R. S. of 1841, c. 91, § 13.
But the deed to Tuttle and Whitney, of March 26, 1831, in mortgage by Henry, alias Winslow Bates, was prior in time to that to Richardson & Whitney, and was of “ all my right, title and interest, to and in the estate of said Elias Bates.” All the interest of the mortgager, so far as the case discloses, was the right, title and interest under his father’s will; and this was all which he attempted to convey. His covenants of warranty extended no further. Coe, pet’r for par., v. persons unknown, 43 Maine, 432. The covenant of seizin in no wise operated injuriously to the mortgagees, as they were in possession as devisees in trust, under the will; and, being such, the enjoyment under the deed was to commence in futuro. It is not perceived that their right of possession, under the will, till the testator’s youngest surviving child should arrive to the age of twenty-one years, could in any way prevent their enjoyment, when that event should take place. That deed was effectual, in the same manner, and to the same extent, that the one to Richardson & Whitney would have been, if the latter was the only one from Winslow Bates, was prior to the other, or the former had been discharged.
If the mortgage to Tuttle and Whitney has been foreclosed, the legal title became absolute in them, or those claiming under them, and has come to the tenant indefeasible; and this action [103]*103must fail for want of title in the demandant. But if this mortgage is now outstanding and undischarged, it is still open to redemption, and the right to redeem has passed from Richardson & Whitney to the demandant.
If, on the other hand, the condition in the mortage to Tuttle and Whitney was never broken; or if the mortgager, or the one claiming under him, has done all which is required to entitle him to redemption, and to be admitted to the possession, which has been in the tenant for more than seventeen years, his remedy is not in a suit at law, but in a bill in equity. Hill v. Payson & al., 3 Mass. 359; Perkins & al. v. Pitts, 11 Ibid. 134; Parsons v. Wells & al., 17 Mass. 419; R. S. of 1841, c. 125, § 16.
The receipt of a mortgager, acknowledging satisfaction of the debt secured by the mortgage, is not conclusive evidence of a discharge of the mortgage, so as to defeat the title under it; but it is competent for the mortgagee to explain the transaction, by showing the nature of the satisfaction received. Perkins & al. v. Pitts, before cited. This he cannot be called upon to do in a suit at law.
Other questions of law are presented by the report, which have been argued, but their consideration is not important for the final disposition of this action.
According to the agreement of the parties, the plaintiff must be Nonsuit.
Rice, Appleton. Cutting, and Goodenow, J. J., concurred.