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Judgment is to be entered upon the verdict for the demandant, if the admissions of Eli Hoskins were competent evidence, or, if from the whole case, he is entitled thereto. If the result were to depend upon the first alternative, there is much reason to believe, that a new trial must be had, but from the whole case, as it is reported, the verdict can be well sustained.

At the time of the demandant’s conveyance to Moulton, the latter had only an instantaneous seizin, he having executed and delivered back a mortgage for the security of the purchase money. Holbrook v. Finney, 4 Mass. R. 566; Chickering v. Lovejoy, 13 Mass. R. 51. As between the parties to that transaction, and those claiming under them respectively, the legal title and freehold was in the demandant, and he had the *233right of possession at all times, till the condition of the defeasance should be fulfilled. There was evidence, that he was in possession at the time, he took his mortgage, and so continued till after the time, when Eli Hoskins took his mortgage from Moulton. This fact was not derived from the admission of Eli Hoskins, and does not seem to have been at all controverted at the trial; and the argument for the defendant proceeds upon the ground of its having been well established. The demandant must be treated as being in possession by right, and cannot be presumed, in the absence of evidence, to hold that possession under a title inferior to that, which he actually had. It is contended however for the defendant, that the instrument executed by the demandant, and in the case, shows that he held under Moulton, by virtue of that agreement, and not under the mortgage deed. This paper, though purporting upon its face to have been executed more than a month before the conveyance to Moulton, recites that it is of even date therewith. It is a bill of sale under seal, for the consideration of one hundred dollars, of one half of all the herbage and crops of all kinds, then standing and growing on the tract of land in dispute. Also all the materials of every description, then lying upon the premises for the purpose of erecting a dwellinghouse, it being understood, that Moulton was to furnish a man to aid in cutting and making the hay on the same.

Is there any thing in this instrument sufficient to show, that the demandant by a binding contract relinquished his perfect and legal right to retain possession as mortgagee, and that he was in fact holding under this instrument? Before the relation between them could be so entirely changed, there must be some unequivocal proof thereof; it could not be so determined by doubtful implication. By the terms and general tenor of the paper, the demandant sold a part of the crops then growing to maturity under his care, upon the farm of which he had possession, and also other property having no connexion with the premises. This sale implies at least, that the property sold, previously belonged to him, and it was not in the mouth of Moulton to deny this. But the conveyance to Moulton, taken *234by itself, would pass the herbage and crops attached to the soil, and would render a purchase thereof entirely unnecessary. If it was understood between them, that Moulton was in the possession, as well he might be by the consent of the mortgagee, then so far from his being a purchaser of one half the crops, which he was to enjoy, he should have sold to the de-mandant the portion intended for him. When we look for the contract under which the demandant became the owner of the crops, so that he could sell a portion thereof to Moulton, we find none but the mortgage. No other than that and the bill of sale is pretended. The latter could not on any construction confer such a title, but the former was entirely sufficient for the purpose.

The demandant then must be regarded as holding the possession under the mortgage, and by the authority of the case of Webster v. Maddocks, 6 Greenl. 256, that possession perfects and secures his title as effectually as the registry of deeds.

Judgment on the verdict.