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 *423under 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. AH 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 Fuller 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 in possession as mortgagee ten years or more after the mortgage debt became due, the equity of redemption was barred by 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. H, in such case, they were now in possession, and the defendant, being the owner of the equity of redemption, was 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 *424forfeiture. But, although the plaintiffs, if in possession, might defend as mortgagees, they cannot, 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 necssity 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 view of the case, the defendant’s possession, fortified as it is by the legal title, cannot be disturbed in this action.

The judgment should be affirmed.

All the judges concurring

Judgment affirmed.