— On the eleventh day of July, 1835, Royal Clark conveyed the demanded premises in mortgage to Ephraim Lincoln, Samuel J. Foster and Benjamin Brown, who conveyed the same premises to Benjamin Lincoln, the ancestor of the demandants, by their deed, bearing date, Feb. 23, 1841.

Ephraim Lincoln, Foster & Brown, recovered judgment for the premises against Clark, in October, 1837, by virtue of said mortgage, and by a writ of habere facias, were put into the possession of the same, Feb. 24, 1838. Three years from the time of the entry having expired, there is now an absolute estate in the demandants.

The tenant caused an attachment to be made of the premises, on the 20th of August, 1839, as the property of Ephraim Lincoln, Foster & Brown, and having obtained judgment in his action, made a levy of his execution upon them, January 19, 1842.

But at the time of making the attachment, the interest of the debtors was that of mortgagees, before a foreclosure had taken place, and was not attachable. Smith v. People’s Bank, 24 Maine, 185. Such interest may be conveyed by deed, and before the tenant’s levy, it was transferred to the ancestor of the demandants.

But-it is contended that the mortgagees of Clark were partners, who were insolvent, and that the money, obtained by the conveyance to Benjamin Lincoln, was received by one of the partners, and appropriated to his benefit alone, and that the tenant, a creditor of the firm, has a right to hold the premises, against that conveyance.

A sufficient answer to this position is, that the testimony óf Samuel J. Foster, which is introduced to prove the fact, does not show such appropriation. He does not appear to know what disposition was made of the money received.

*295The deed, having been given by all the partners, conveyed all their title, and the presumption is, that the consideration went for the benefit of the firm. The grantee would not be accountable for the disposition of it, by the firm, or any one of its members.

According to the agreement of the parties, the tenant must be defaulted, and an auditor appointed, to determine the amount of the rents and profits to which the demandants are entitled.