This is an ejectment on a mortgage,brought for. the recovery of lands in Eesex' county. The premises were mortgaged in November, 1775, by the present defendant to the nominal plaintiff, as a security for a debt. Jouet, the plaintiff, having committed an act of treason, final judgment passed against him, on an inquisition under the act of April, 1778, and his entire estate, being confiscated, vested in the state of New Jersey, in January, 1779. Payments were made on account of this debt to the commissioners of forfeited estates, but a balance still remaining due, this ejectment is brought to the use of the daughters of Jouet, to whom the legislature, by an act of March 5, 1795, conveyed all the interest of the state in the personal property of the offender.

The main question arising on these facts, is, ought a recovery to be had in this form of action ? if it can, the verdict is erroneous, and ought to be set aside ; if not, whatever may have been the grounds of the decision, ,no new trial should be granted.

It appears to me to be, at this time, the settled doctrine of the law, whatever opinions may have been formerly held, that a mortgage is merely personal estate, and the land a security for the payment of a subsisting debt. The mortgagee can fexercise no act of foreclosure; he can neither lease nor commit waste. The mortgagor may, in an action of ejectment, bring the money into court, and tender it to the plaintiffs; and a payment without deed revests in the mortgagor all the estate and interest which he previously had in the premises. Thus the interest is considered as merely a personal one.

Still, however, before payment, an action of ejectment can be sustained, as one means of enforcing the demand. By the act of April, 1778, sep. 3, the commissioners of forfeited estates may prosecute for the debts and demands due to the offender, in the name of such offender. This was in the exercise of a power clearly belonging to the legislature, and *575against which it appears to me there can exist neither a legal nor equitable objection. By the act of 1795, the legislature conveys all the interest in the personal estate of 0. Jouet, then remaining undisposed of, to the daughters of Jouet, authorizing them to sue for the recovery of the same, either in their own names or in the name of their father.

The money not having been paid on the bond, an ejectment is a remedy to enforce the claim, which the law recognizes as formally correct. This action is properly brought in the name of 0. Jouet, and it does not strike me, that any just or technical difficulty exists to prevent a recovery. The verdict was, therefore, against evidence, and must be set aside, and without costs.

(after stating the circumstances of the case.) The defendant’s counsel has objected, that the sum remaining due being so small, the action for its recovery should have been debt on the bond, and not ejectment on the mortgage. The question, however, in an action of ejectment is not, what is the amount of the debt ? but has the plaintiff a right to the land? It is perfectly immaterial, whether £10 or £10,000 is due on the mortgage; the right of possession is equally perfect in either case, and of consequence his right to a recovery. The law allows the plaintiff several remedies, he is allowed to elect between them, or to pursue them all at the same time, and I am not aware that this court has any authority to interpose or to control him in the exercise of this power. Neither am I able to comprehend in what manner the evils contemplated by the counsel, can flow from this doctrine. The defendant may tender the amount due, and in that case the plaintiff must proceed at his peril.

If, however, any legal objections exist to a recovery in this case, it is perfectly immaterial upon what grounds the verdict may have passed for the defendant; it would be in vain to grant a new trial, if in the end the result must be *576the same-. This brings me to consider the main question in the case, viz.: Can the present action be maintained in the name of 0. Jouet, the mortgagee, as-lessor of the plaintiff?

There is no principle in the law better settled, than that the plaintiff in ejectment must shew that his lessor was seized or possessed of such an estate in the premises, as to warrant him in making the lease set forth in the declaration. The lessor of the plaintiff on this record, is 0. Jouet, and the question arises, is he, either in law or in equity, vested with such a title to the premises in question, as to enable him to make a-lease?

By the first section of the act of December 11, 1778, forfeiting to and vesting in the state of New Jersey, the real estate of certain fugitives and offenders, it is enacted, that all and singular the lands, tenements and hereditaments of such offender ■; all his estates real, of what nature or kind soever, which he shall have been seized or possessed of, interested in, or entitled to, shall be forfeited to, and vest in, the state of New Jersey for ever. Under this general language, all the estate of the offender, and his right of possession, is divested out of him, and vested in the state; and unless there is some after grant, reconveying his interest in proper and appropriate terms, so as to enable him to maintain an ejectment for the same, the inquisition and judgment must operate as a perpetual bar.

There is no question in my mind, as to the power of the legislature to pass a law authorizing Jouet, or any other person, to whom the estate was given, to sue for the same in an action of ejectment. No such authority has, however, been given, nor can I find that any legislative act was passed, declaring in what manner or in whose names, actions for the recovery of real property should be brought. The third section of the act of April 18,.1778, unquestionably relates exclusively to personal actions, as at that time no real estate had been made forfeitable. The counsel for the plaintiff, *577liave urged, that a debt secured by mortgage is considered as a specialty debt; that the legislature having given the debt, and the right of suing for it, the grantees are entitled to all the remedies which the state could have employed for reducing this claim into possession. Of this, I entertain no question, the proposition is sound law; and I have accordingly considered the case as between the state and the defendant. If the state would have been entitled to a recovery in the present form of action, in the name of Jouet, I should have no doubt that the real plaintiffs in this case might do the same.

But while I acknowledge that the interest of the mortgagee is a personal interest; that the daughters of Jouet, might have brought an action of debt on the bond, in the name of their father, yet 1 regard this as an action of a peculiar kind, intended to enforce a personal demand by proceedings of a real nature. The act authorizing personal suits, does not in my opinion extend to actions of ejectment, and thinking that in this form of action no recovery can be had, I am against disturbing the verdict.*