Potter v. Small

The opinion of the Court was drawn up by Mat, J. The hay in controversy was cut upon premises of which the plaintiff was mortgagee. The- condition of the mortgage had been broken; but the mortgager was then in possession, and had commenced cutting the grass at the time of the entry upon which the plaintiff bases his right to recover. The acts of the defendant were authorized by the mortgager. The question presented is, whether the entry proved gave to the plaintiff such a possession as will enable him to maintain this suit. We are fully satisfied that it did not. The authorities cited for the plaintiff clearly show that a mortgagee may enter on the premises for the purpose of taking the rents and profits, even before a breach of the condition; and such was the statute at the time of the- entry. E. S. of 1841, c. 125, § 2. So, after condition broken, he might have entered for the purpose of foreclosure, in either of the modes pointed out in section 3 of the same statute. Such also are the provisions of our present statutes. E. S. of 1857, c. 90, §§ 2 and 3. But such an entry must be accompanied with evidence of the intention for which it is made. The declarations of the party making the entry, being part of the res gestae, are usually this evidence. It was so in this case. It appears that, at the time of making the entry, the plaintiff said “ he had a mortgage on the premises, and that the condition of the mortgage had been broken, and he therefore foreclosed.” This is the only evidence of intention explanatory of the act. It is apparent, therefore, that he had no design to enter for the purpose of taking the rents and profits, under the second section of the statute. • His [297] intention was to foreclose. An entry for this purpose, to be effectual, if not by consent in writing of the mortgager, or the person holding under him, must not only be open, peaceable and unopposed, but followed up by the certificate and record required by the statute, or otherwise it becomes a nullity. In this case this was not done. The plaintiff therefore acquired no rights by his entry. To permit him now, after such a failure on his part, to ascribe a new intention to his act, and to set up his entry for a different purpose, would be manifestly unjust. To do so would be, in effect, to cast reproach upon the law. The nonsuit must stand. Exceptions overruled. Tenney,. C. J., and Rice, Cutting, and Goodenow, JJ., concurred.