Norton v. Webb

Shepley, C. J. — By the provisions of statute c. 125, § 2, a mortgagee may recover possession, before any breach of the condition, ££ when there is no agreement to the contrary.” Such an agreement, affecting the title to real estate, must be made in writing. It may be so made without the use of any particular form of words; and it may be inferred from the language used in a written contract between the parties, which cannot be executed, according to its terms, without a construction permitting the mortgager to remain in possession. By the condition of the mortgage, the mortgager was to support the mortgagee and his wife ££ in our house on said lot No. 45, if we choose.” By this he would not be authorized to retain possession without proof of such a choice. If they had elected to have their support furnished in the house on that lot, the mortgager could not perform without being entitled to possession of it; and the intention of the p’arties and their agreement, contained in the condition of the mortgage, would in such case, authorize the mortgager to retain possession, until a breach had been committed. [221] There is no provision, that such election should be made known in writing. If clearly established by parol proof, that would be sufficient until revoked. The report states that, among other matters, the tenant offered to prove, “ that the demandant chose to receive his support on said premises and to live in said house. But the presiding Judge rejected the evidence.” If this testimony had been received, it might have proved such an election as would have required the tenant to retain possession to be enabled to perform the condition. So much of the testimony offered and excluded should therefore have been received; not to vary the terms of the written contract, but to prove, that one party to it had, according to its terms, made an election respecting the manner of its performance. New trial granted. Wells, Howard and Hathaway, J. J., concurred.