By the Court.

The defendant is entitled to judgment, on the strength of his legal title derived from Daniel Fuller, unless he is estopped, as the plaintiffs claim, from setting up such title in this action.

Upon that point, the plaintiffs argue that, as Parish, having represented to ¡Newton, when he executed to him the mortgage upon the premises in dispute, that he owned such premises in fee, was estopped, as against ¡Newton, from denying that he owned the fee, and that it was covered by the mortgage, it follows, that the defendant, being the vendee of Asa Fuller, who entered into possession of the premises under Parish, is equally bound by such estoppel, as against the plaintiffs, who, having purchased at the foreclosure sale, have succeeded to all the rights of ¡Newton, as mortgagee. This argument would be unanswerable, if the defendant and his grantor, Asa Fuller, had no other title to the premises, than that which the latter derived from Parish.

But that is not the defendant’s position. All that Asa Fuller acquired from Parish was an assignment of the Sweet mortgage, and the possession of the premises. His rights, as such assignee, while he held possession under the mortgage alone, were undoubtedly subject to the equities of Newton. But he subsequently bought in the equity of redemption, as he had a perfect right to do. The effect of such purchase was to merge in the fee his rights as mortgagee, and from that time he held possession as the owner of the legal title, which, while it was in the hands of his vendor, Daniel Fuller, was not affected by the rights and equities of Newton, and so continued after Asa *562Fuller acquired it, and after he transferred it to the defendant.

It is further claimed, however, by the plaintiffs, that Parish, when he put Asa Fuller in possession, was in legal effect, the owner in fee of the land; that, as he had then been jn possession, as mortgagee, ten years and more, after the mortgage debt became due, the equity of redemption was barred by the statute of limitations, and Parish, therefore, had a title that could not be defeated by redemption, and was perfect as against Daniel Fuller; and that such title passed, under the Newton mortgage, to the plaintiffs by their purchase at the foreclosure sale.

In order to test that position, it is proper to regard the plaintiffs as having acquired the right of Parish, as assignee of the Sweet mortgage, before he assigned it to Asa Fuller ; which is the most favorable aspect for the plaintiffs in which the case can be viewed. If, in such case, they were now in possession, and the defendant, being the owner of the equity of redemption, were seeking to redeem, he would, apparently, be barred by the statute; or, if he sought to recover possession, they could defend, as mortgagees in possession after forfeiture.; But, although the plaintiffs, if in possession, might defend as mortgagees, they can not, on that ground, recover possession ; their only remedy is by foreclosure and sale. On the other hand, although the defendant would be barred by the statute, if he should bring an action to redeem, he is under no necessity of resorting to that remedy, and his inability to avail himself of it, if he should attempt it, does not affect his legal right to retain the possession. The statute cuts off the particular' remedy merely.

In any viewnf the case, the defendant’s possession, fortified as it is by the legal title, can not be disturbed in this action.

The judgment .should be affirmed.

A.11 the judges concurred.

Judgment affirmed, with costs.