Rice, J.
—The tenant has submitted to a default. The demandant now claims, to be entitled to an unconditional judgment for possession of the demanded premises. At the trial, as the case finds, the demandant introduced a deed of mortgage from Purinton to Winthrop and Williams, and also a tax title covering the premises described in the mortgage, with other territory not included therein.
Subsequently, the plaintiff abandoned his tax title, withdrew all records and proceedings tending to establish the same, except the treasurer’s receipts, and elected to rely upon his mortgage and the notes alone, and claimed that the taxes paid should be included in the conditional judgment.
It is quite apparent, that when this report was drawn, the parties understood, that the demandant should have a condi[552]*552tional judgment only, if entitled to recover. By the provisions of c. 104, of stat. of 1844, the judgment must be conditional. The only questions, therefore, open for the consideration of the Court are, whether the plaintiff is entitled to maintain his action, and if so, for what amount shall the conditional judgment be entered.
That Thomas L. Winthrop has deceased and that the plaintiff Williams is surviving mortgagee, sufficiently appears from the evidence in the case. The action is therefore properly in Court.
The demandant claims that the conditional judgment shall include the amount of the two notes produced at the trial, and the further sum of one hundred and sixty dollars and thirty-five cents, paid by him for taxes on the demanded premises, with interest thereon. The tenant contends that judgment should go for the amount of the last note described in the mortgage and no more, excluding the note for sixty-six dollars, payable to Thomas L. Winthrop, and the amount paid by the demandant for taxes.
The mortgage was made by James Purinton, running to Thomas L. Winthrop and Reuel Williams, and provides “that if the said James Purinton, his heirs, executors or administrators pay to the said Winthrop and Williams, their heirs, execijr tors, administrators or assigns, the sum of four hundred dollars in one, two, three, four, five and six years, according to his six notes therefor, then this deed, as also said six notes bearing even date with these presents, given by the said Purinton to the said Winthrop and Williams, promising to pay the same sum and interest, at the times aforesaid, shall be void, otherwise shall remain in full force.”
The note to which objection is made corresponds in all respects with the notes admitted to be secured by the mortgage, excepting that it is payable to “ Thomas L. Winthrop,” instead of “ Thomas L. Winthrop and Reuel Williams.” To prove that this was one of the notes given by Purinton to Winthrop and Williams, and constituted a part of the four-hundred dollars secured by the mortgage, the deposition of [553]*553Daniel Williams, the attorney who drew and witnessed both the mortgage and the notes, was introduced.
From that testimony, if legally admissible, taken in connection with the papers presented, it satisfactorily appears that the note was given at the lime the mortgage was executed, and constitutes a part of the four hundred dollars secured therein.
The objection to the introduction of this parol testimony is that it contradicts the deed.
The material part of the deed is the provision securing the payment of four hundred dollars. This is the substance of the contract. The production and proof of the deed, in the absence of all other evidence, would have entitled the plaintiff to judgment. Thompson v. Watson, 14 Maine, 316; 2 Greenl. Ev. § 329; 4 Phil. Ev. 309. The mortgage contains no stipulation for the payment of the notes, but does provide that on the payment of the four hundred dollars, the notes described, which were given to Winthrop and Williams, as well as the deed, shall be void.
Whether the plaintiff, after having proved his deed, was under the necessity of proceeding further, may admit of doubt. The most he could be required to do, if indeed that burden was on him, was to prove the amount that then remained due. The note objected to was introduced as evidence, to show in part that amount. Is it one of the notes “given by the said Purinton to the said Winthrop and Williams,” which is to become void on the payment of the four hundred dollars secured by the mortgage ? Its date and amount correspond precisely with the description in the mortgage, and unless the word “ given” is construed to mean “ payable,” there is no variance whatever. To give, ordinarily means to deliver, to transfer, to put into one's possession, to make over to another. If such be the legitimate meaning of the word as used in the deed, then, under the common and universally recognized rules of evidence, parol testimony is admissible to identify the note and apply it to the mortgage.
But if the other construction be adopted, and the word given [554]*554be deemed tantamount to payable, then the case falls clearly within the principle adopted by this Court, in Bourne v. Littlefield, 29 Maine, 302, and affirmed in Sweetser v. Lowell, 33 Maine, 446, wherein it is held that parol evidence is admissible to show a note produced in evidence, to be the one secured by a mortgage, when it does not correspond in all respects, with that'described in the condition in the mortgage.
The amount of this note must therefore be included in the conditional judgment.
Against including in the judgment the amount the demand-ant has paid for taxes, the defendant has produced numerous objections, each and all of which he deems fatal.
In the view we have taken of this branch of the case, it will not be necessary to consider those specific objections in detail.
The mortgage, under which the demandant claims, covers the east half of No. 17, and the west half of No. 16, in the first range of lots, according to Weston’s plan, of the town of Newport. The taxes paid by the demandant, and which he now claims to have included in his judgment, were assessed upon the premises covered by the mortgage and upon the east half of No. 16, and the buildings thereon, to wit, a house, two barns and a shed. The east half of No. 16, on which the buildings stand, is not covered by the mortgage. What portion of the taxes paid were assessed upon said east half of No. 16, and the buildings thereon, does not appear.
Taxes legally assessed upon an estate create a lien thereon, and lay the foundation for a title paramount to that derived by deed or mortgage. They constitute a legal charge upon the estate, not upon the mortgagee. Faure v. Winans, Hopkins, 283. It was the duty of the mortgager, and those holding under him, to discharge all taxes thus assessed upon the demanded premises, while they withheld the possession from the mortgagee, and1 in case taxes were assessed in a manner which they deemed illegal, notice of this fact should have been given to the mortgagee, and in case payment was to be resisted he should be indemnified against loss, because it would be un[555]*555reasonable to subject the mortgagee to the hazard of contesting the legality of a tax title by a suit at law, in which, if the final result should be in favor of the validity of that title, all his rights under his mortgage would be forever lost.
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Rice, J.
—The tenant has submitted to a default. The demandant now claims, to be entitled to an unconditional judgment for possession of the demanded premises. At the trial, as the case finds, the demandant introduced a deed of mortgage from Purinton to Winthrop and Williams, and also a tax title covering the premises described in the mortgage, with other territory not included therein.
Subsequently, the plaintiff abandoned his tax title, withdrew all records and proceedings tending to establish the same, except the treasurer’s receipts, and elected to rely upon his mortgage and the notes alone, and claimed that the taxes paid should be included in the conditional judgment.
It is quite apparent, that when this report was drawn, the parties understood, that the demandant should have a condi[552]*552tional judgment only, if entitled to recover. By the provisions of c. 104, of stat. of 1844, the judgment must be conditional. The only questions, therefore, open for the consideration of the Court are, whether the plaintiff is entitled to maintain his action, and if so, for what amount shall the conditional judgment be entered.
That Thomas L. Winthrop has deceased and that the plaintiff Williams is surviving mortgagee, sufficiently appears from the evidence in the case. The action is therefore properly in Court.
The demandant claims that the conditional judgment shall include the amount of the two notes produced at the trial, and the further sum of one hundred and sixty dollars and thirty-five cents, paid by him for taxes on the demanded premises, with interest thereon. The tenant contends that judgment should go for the amount of the last note described in the mortgage and no more, excluding the note for sixty-six dollars, payable to Thomas L. Winthrop, and the amount paid by the demandant for taxes.
The mortgage was made by James Purinton, running to Thomas L. Winthrop and Reuel Williams, and provides “that if the said James Purinton, his heirs, executors or administrators pay to the said Winthrop and Williams, their heirs, execijr tors, administrators or assigns, the sum of four hundred dollars in one, two, three, four, five and six years, according to his six notes therefor, then this deed, as also said six notes bearing even date with these presents, given by the said Purinton to the said Winthrop and Williams, promising to pay the same sum and interest, at the times aforesaid, shall be void, otherwise shall remain in full force.”
The note to which objection is made corresponds in all respects with the notes admitted to be secured by the mortgage, excepting that it is payable to “ Thomas L. Winthrop,” instead of “ Thomas L. Winthrop and Reuel Williams.” To prove that this was one of the notes given by Purinton to Winthrop and Williams, and constituted a part of the four-hundred dollars secured by the mortgage, the deposition of [553]*553Daniel Williams, the attorney who drew and witnessed both the mortgage and the notes, was introduced.
From that testimony, if legally admissible, taken in connection with the papers presented, it satisfactorily appears that the note was given at the lime the mortgage was executed, and constitutes a part of the four hundred dollars secured therein.
The objection to the introduction of this parol testimony is that it contradicts the deed.
The material part of the deed is the provision securing the payment of four hundred dollars. This is the substance of the contract. The production and proof of the deed, in the absence of all other evidence, would have entitled the plaintiff to judgment. Thompson v. Watson, 14 Maine, 316; 2 Greenl. Ev. § 329; 4 Phil. Ev. 309. The mortgage contains no stipulation for the payment of the notes, but does provide that on the payment of the four hundred dollars, the notes described, which were given to Winthrop and Williams, as well as the deed, shall be void.
Whether the plaintiff, after having proved his deed, was under the necessity of proceeding further, may admit of doubt. The most he could be required to do, if indeed that burden was on him, was to prove the amount that then remained due. The note objected to was introduced as evidence, to show in part that amount. Is it one of the notes “given by the said Purinton to the said Winthrop and Williams,” which is to become void on the payment of the four hundred dollars secured by the mortgage ? Its date and amount correspond precisely with the description in the mortgage, and unless the word “ given” is construed to mean “ payable,” there is no variance whatever. To give, ordinarily means to deliver, to transfer, to put into one's possession, to make over to another. If such be the legitimate meaning of the word as used in the deed, then, under the common and universally recognized rules of evidence, parol testimony is admissible to identify the note and apply it to the mortgage.
But if the other construction be adopted, and the word given [554]*554be deemed tantamount to payable, then the case falls clearly within the principle adopted by this Court, in Bourne v. Littlefield, 29 Maine, 302, and affirmed in Sweetser v. Lowell, 33 Maine, 446, wherein it is held that parol evidence is admissible to show a note produced in evidence, to be the one secured by a mortgage, when it does not correspond in all respects, with that'described in the condition in the mortgage.
The amount of this note must therefore be included in the conditional judgment.
Against including in the judgment the amount the demand-ant has paid for taxes, the defendant has produced numerous objections, each and all of which he deems fatal.
In the view we have taken of this branch of the case, it will not be necessary to consider those specific objections in detail.
The mortgage, under which the demandant claims, covers the east half of No. 17, and the west half of No. 16, in the first range of lots, according to Weston’s plan, of the town of Newport. The taxes paid by the demandant, and which he now claims to have included in his judgment, were assessed upon the premises covered by the mortgage and upon the east half of No. 16, and the buildings thereon, to wit, a house, two barns and a shed. The east half of No. 16, on which the buildings stand, is not covered by the mortgage. What portion of the taxes paid were assessed upon said east half of No. 16, and the buildings thereon, does not appear.
Taxes legally assessed upon an estate create a lien thereon, and lay the foundation for a title paramount to that derived by deed or mortgage. They constitute a legal charge upon the estate, not upon the mortgagee. Faure v. Winans, Hopkins, 283. It was the duty of the mortgager, and those holding under him, to discharge all taxes thus assessed upon the demanded premises, while they withheld the possession from the mortgagee, and1 in case taxes were assessed in a manner which they deemed illegal, notice of this fact should have been given to the mortgagee, and in case payment was to be resisted he should be indemnified against loss, because it would be un[555]*555reasonable to subject the mortgagee to the hazard of contesting the legality of a tax title by a suit at law, in which, if the final result should be in favor of the validity of that title, all his rights under his mortgage would be forever lost.
But it is farther contended that the taxes cannot he included in the conditional judgment, because only a part of the amount paid was assessed upon the estate included in the mortgage, and that under the provision of <§> 51 of c. 14, R. S. the demandant should have tendered the amount assessed upon the mortgaged premises, only, and thus discharged the tax lien by a much smaller sum than was actually paid.
The answer to this position is, that the whole estate of those claiming under the mortgager was assessed together, no distinction being made between that which was, and that which was not, included in the mortgage. There was therefore no data furnished by which the amount assessed upon the mortgaged premises could be determined, and the amount to be tendered ascertained. This was the fault of the mortgager. To entitle himself to the benefit he now claims, he should have rendered to the assessors a distinct description of that part of the estate covered by the mortgage, and thus have furnished a basis upon which a tender could have been made. This he has not done.
This form of action, as now regulated by statute, approximates very closely to a process in equity, for the redemption of mortgaged property, and the rights of the parties in ascertaining the amount for which a conditional judgment shall be rendered, must be determined upon the same principles that would control were the mortgager to bring his bill in equity to redeem the premises from the mortgagee. In that case the mortgager would be required to pay not only the sums directly secured by the mortgage, but also such additional sums as the mortgagee had been compelled to pay to protect the estate from forfeiture, in consequence of the laches of the mortgager.
According to the agreement of the parties, the default is to stand and a conditional judgment is to be entered for the amount of the two notes produced in evidence at the trial, [556]*556and which are attached to the deposition of the witness Williams, and also for the amount paid for taxes, with interest thereon frpm the time of payment, with costs for the demandant.
Shepley, C. J., and Wells, Hathaway and Appleton, J. J., concurred.