The opinion of the court was delivered by
WheeleR, J.
Upon the case made by the petition and confession, the petitioner stood as a second mortgagee, seeking to redeem the first mortgage and to foreclose his own, and the defendants stood as assignees of the first mortgage in possession, taking the rents and profits. Upon that case, the defendants should have accounted for the rents and profits, and permitted the petitioner to redeem their mortgage. But with the parties all before the court, the cause was referred to a master, and a hearing had be[609]*609fore him, and upon his report additional facts appeared. The case made by that report is a very different one from that made by the petition and confession. Upon the coming in of the report, either party could have moved the court for leave to amend the pleadings, so as to',make them conform to the report. Neither party moved in that direction, and both proceeded to hearing upon the case made by the report without objection. If either had objected, probably the other would have moved for an amendment. Both, by proceeding, waived all such objections, and the cause was heard upon the case made by the report, and upon the appeal has come here to be heard in the same way.
Upon the facts stated in the report, the mortgage to the petitioner was a fourth mortgage, and was in effect only a mortgage of the equity of redemption of the three prior mortgages. Cyrus Safford, the mortgagor, at the time of his decease,was personally holden for the payment of all the mortgages without reference to their priority. The mortgage premises were holden for the payment of the mortages in the order as to time in which the mortgages were made. The estate of Cyrus Safford, in the hands of the administrator, stood holden to the payment of all the mortages the same as he in his lifetime had been, and the mortgage premises were holden to the payment of the mortgages according to priority, after his decease the same as before. When the administrator sold to Flint and Hosier, they acquired the equity of redemption of all the mortgages, but they did not become personally holden to the mortgagees to pay any of them. As between them and the estate of Safford, they were bound to pay the two first mortgages and eight hundred dollars of the third. This payment would relieve the estate from so much of its liabilities, and appears to have been the consideration for the conveyance of the equity of redemption. While they held the equity of redemption they could be compelled to pay off the mortgages to save their estate. As they were under no personal obligation to the morta-gees to pay the mortages at all, if they failed to do so, the morta-gees could claim nothing of them beyond their estate. As they paid the mortgages, the payment must be presumed to have been made to save their estate, for that was the only purpose beneficial [610]*610to them that they could accomplish by it. This was a common case of payment of a mortgage by a holder of an estate necessary to be made to save the estate. In such cases no assignment of the mortgage to the person paying it, nor proof of an intention on his part to keep it alive, is necessary to give him the benefit of it. His payment of it, together with its relation to his estate, bring it in aid of his title to strengthen and uphold it. There are many reported cases of payment of a mortgage upon an estate, by a holder of the estate, where the person paying was held not to be entitled to stand upon the mortgage paid to help his title as against all parties, several of the most important of which have been cited for the petitioner. The position of John M. Clark in McDaniels v. Flower Brook Mf’g Co., 22 Vt., 274, was such that he could not so stand against the defendant corporation, because being surety for the corporation, and having, upon a consideration received by him separate from the mortgage premises, made a valid agreement with it to pay the debt, he made the payment, because he was bound to make it in discharge of that agreement, and not on account of the liability of the corporation charged upon the mortgage premises to save his estate in them. That decision does not purport to hold that he could not stand upon that mortgage against other parties, but only that he could not against the corporation. In Starr v. Ellis, 6 Johns, ch., 393, a person who had paid off a mortgage, and thereby had become the owner of the whole estate, was held not to be entitled to keep it on foot, so that it would be a valid incumbrance in the hands of his assignee against a bona fide purchaser of the estate from him. In Robinson v. Leavitt, 3 N. H., 73, the persons who paid and took the mortgage afterward gave a bond to a judge of probate to pay all the debts due from an estate, of which the mortgage debt was one, and that bond was by the laws of New Hampshire in force, for the benefit of persons interested in the estate of which the mortgage premises were a part, and the persons paying the mortgage undertook to keep it on foot against the persons interested in the estate for whose benefit the bond was taken and held. Under these circumstances it was held that the mortgage could not be set up against those persons. In Given v. Mann, 27 Maine, 212, the [611]*611mortgage was undertaken to be set up against the right, of the wife of a grantee of the person paying it off, to dower in the mortgage premises; and it was held that the mortgage could not be set up against her. Loomer v. Wainwright, 3 Sandf., 135, stands-upon the peculiar facts .of the case, and is not contrary to the general rule. The other reported cases cited in behalf of the petitioner are, all of them, cases where the general rule was applied. In all these cases particularly mentioned, it was clearly recognized as a general rale, but was not applied in behalf of the persons claiming the benefit of it in those particular cases, because, from the peculiar circumstances in each case, to have applied the rule in behalf of those persons would have been clearly inequitable as to others against whom the benefit of it was claimed. This general rule seems to have been applied in all cases-where the person against whom the mortgage is undertaken to be kept on foot, and set up, would be placed in no worse situation than he would have been in if the mortgage had been left outstanding, and the setting it up would not operate as a fraud, by the party setting it up, upon the party against whom it was set up.
In this case the petitioner will be in no worse condition if the defendants stand upon the mortgages they have paid off, than he would have been in if the defendants had not paid them, and the original mortgagees had still held them. He has had the same right to redeem them in the hands of Flint and Mosier, and of the defendants, at any time since they were paid off, that he had while they were in the hands of the original mortgagees before they were paid off, and that he would have had if they had continued in the hands of the original mortgagees all the while. The payment of the amount of them would redeem them in either place. He took and had a mortgage only of the estate as it was subject to them, and was always obliged to pay them off or give up that security, and it wrought no hardship nor injustice to him to change the persons of whom he could redeem. The defendants, therefore, who stand upon the rights of Flint and Mosier, who paid off the mortgages, have a right to stand upon the mortgages to support their title, and the petitioner is not entitled to a decree of foreclosure upon his mortgage, without redeeming these prior [612]
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The opinion of the court was delivered by
WheeleR, J.
Upon the case made by the petition and confession, the petitioner stood as a second mortgagee, seeking to redeem the first mortgage and to foreclose his own, and the defendants stood as assignees of the first mortgage in possession, taking the rents and profits. Upon that case, the defendants should have accounted for the rents and profits, and permitted the petitioner to redeem their mortgage. But with the parties all before the court, the cause was referred to a master, and a hearing had be[609]*609fore him, and upon his report additional facts appeared. The case made by that report is a very different one from that made by the petition and confession. Upon the coming in of the report, either party could have moved the court for leave to amend the pleadings, so as to',make them conform to the report. Neither party moved in that direction, and both proceeded to hearing upon the case made by the report without objection. If either had objected, probably the other would have moved for an amendment. Both, by proceeding, waived all such objections, and the cause was heard upon the case made by the report, and upon the appeal has come here to be heard in the same way.
Upon the facts stated in the report, the mortgage to the petitioner was a fourth mortgage, and was in effect only a mortgage of the equity of redemption of the three prior mortgages. Cyrus Safford, the mortgagor, at the time of his decease,was personally holden for the payment of all the mortgages without reference to their priority. The mortgage premises were holden for the payment of the mortages in the order as to time in which the mortgages were made. The estate of Cyrus Safford, in the hands of the administrator, stood holden to the payment of all the mortages the same as he in his lifetime had been, and the mortgage premises were holden to the payment of the mortgages according to priority, after his decease the same as before. When the administrator sold to Flint and Hosier, they acquired the equity of redemption of all the mortgages, but they did not become personally holden to the mortgagees to pay any of them. As between them and the estate of Safford, they were bound to pay the two first mortgages and eight hundred dollars of the third. This payment would relieve the estate from so much of its liabilities, and appears to have been the consideration for the conveyance of the equity of redemption. While they held the equity of redemption they could be compelled to pay off the mortgages to save their estate. As they were under no personal obligation to the morta-gees to pay the mortages at all, if they failed to do so, the morta-gees could claim nothing of them beyond their estate. As they paid the mortgages, the payment must be presumed to have been made to save their estate, for that was the only purpose beneficial [610]*610to them that they could accomplish by it. This was a common case of payment of a mortgage by a holder of an estate necessary to be made to save the estate. In such cases no assignment of the mortgage to the person paying it, nor proof of an intention on his part to keep it alive, is necessary to give him the benefit of it. His payment of it, together with its relation to his estate, bring it in aid of his title to strengthen and uphold it. There are many reported cases of payment of a mortgage upon an estate, by a holder of the estate, where the person paying was held not to be entitled to stand upon the mortgage paid to help his title as against all parties, several of the most important of which have been cited for the petitioner. The position of John M. Clark in McDaniels v. Flower Brook Mf’g Co., 22 Vt., 274, was such that he could not so stand against the defendant corporation, because being surety for the corporation, and having, upon a consideration received by him separate from the mortgage premises, made a valid agreement with it to pay the debt, he made the payment, because he was bound to make it in discharge of that agreement, and not on account of the liability of the corporation charged upon the mortgage premises to save his estate in them. That decision does not purport to hold that he could not stand upon that mortgage against other parties, but only that he could not against the corporation. In Starr v. Ellis, 6 Johns, ch., 393, a person who had paid off a mortgage, and thereby had become the owner of the whole estate, was held not to be entitled to keep it on foot, so that it would be a valid incumbrance in the hands of his assignee against a bona fide purchaser of the estate from him. In Robinson v. Leavitt, 3 N. H., 73, the persons who paid and took the mortgage afterward gave a bond to a judge of probate to pay all the debts due from an estate, of which the mortgage debt was one, and that bond was by the laws of New Hampshire in force, for the benefit of persons interested in the estate of which the mortgage premises were a part, and the persons paying the mortgage undertook to keep it on foot against the persons interested in the estate for whose benefit the bond was taken and held. Under these circumstances it was held that the mortgage could not be set up against those persons. In Given v. Mann, 27 Maine, 212, the [611]*611mortgage was undertaken to be set up against the right, of the wife of a grantee of the person paying it off, to dower in the mortgage premises; and it was held that the mortgage could not be set up against her. Loomer v. Wainwright, 3 Sandf., 135, stands-upon the peculiar facts .of the case, and is not contrary to the general rule. The other reported cases cited in behalf of the petitioner are, all of them, cases where the general rule was applied. In all these cases particularly mentioned, it was clearly recognized as a general rale, but was not applied in behalf of the persons claiming the benefit of it in those particular cases, because, from the peculiar circumstances in each case, to have applied the rule in behalf of those persons would have been clearly inequitable as to others against whom the benefit of it was claimed. This general rule seems to have been applied in all cases-where the person against whom the mortgage is undertaken to be kept on foot, and set up, would be placed in no worse situation than he would have been in if the mortgage had been left outstanding, and the setting it up would not operate as a fraud, by the party setting it up, upon the party against whom it was set up.
In this case the petitioner will be in no worse condition if the defendants stand upon the mortgages they have paid off, than he would have been in if the defendants had not paid them, and the original mortgagees had still held them. He has had the same right to redeem them in the hands of Flint and Mosier, and of the defendants, at any time since they were paid off, that he had while they were in the hands of the original mortgagees before they were paid off, and that he would have had if they had continued in the hands of the original mortgagees all the while. The payment of the amount of them would redeem them in either place. He took and had a mortgage only of the estate as it was subject to them, and was always obliged to pay them off or give up that security, and it wrought no hardship nor injustice to him to change the persons of whom he could redeem. The defendants, therefore, who stand upon the rights of Flint and Mosier, who paid off the mortgages, have a right to stand upon the mortgages to support their title, and the petitioner is not entitled to a decree of foreclosure upon his mortgage, without redeeming these prior [612]*612mortgages in. the hands of such defendants. The estate of Cyrus Safford held the equity of redemption of all the mortgages. “ The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law; and it is accordingly hold to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute inheritance at law.” 4 Kent Com., 159. Flint and Mo-sier acquired this equity of redemption of the estate of Safford, and took possession under the rights they so acquired, and their possession and rights have passed to the defendants. The defendants and those in whose right they stand, therefore, are and have been in possession as mortgagors. When they have paid off mortgages, they have not taken possession under the mortgages they paid off, but have continued the same possession that they had before, under the same title they had before, not changed, but strengthened merely by the mortgages they have paid off and taken. They have never been mortgagees in possession, and they stand upon the rights of those who were mortgagees only to uphold their other title. The petitioner does not appear to have ever taken any possession under his mortgage, or to have done anything equivalent. The mortgagor, and those standing in his right, have therefore never been accountable for rents and profits to the petitioner as the case now appears. 1 Wash. Real Prop., 549; Hooper v. Wilson, 12 Vt., 695. The petitioner seems to have permitted the defendants as assignees of the mortgagor to remain in possession, and has no greater claim to rents and profits of them than he would have had of the mortgagor if he had continued in possession. Instead of redeeming the mortgages prior to his, or undertaking to take possession under his own against the mortgagor, or those standing upon the rights of the mortgagor, he has chosen to lie by and permit them as mortgagors to enjoy the estate, and has now no rights except to stand upon his own mortgage, for what it was at first, and always has been, a mortgage of the equity of redemption of the three prior mortgages.
The decree of the court of chancery is reversed and the cause remanded to that court to be proceeded with there according to these views.