Hewes v. Bickford

The opinion of the Court was drawn up by Tenney, C. J. The plaintiff is the assignee of the mortgage of the farm, which is the locus in quo, from Rich to Mason, the mortgagee, never having taken possession, or steps to foreclose the mortgage, notwithstanding the condition therein had been broken. ■ In April, before the trespass alleged, the mortgager leased, by parol, the premises to the defendant, who occupied through the season,- in such manner as farms are usually occupied. The plaintiff frequently passed by the farm, and knew that the defendant had possession, but said nothing to him on the subject. On July 8, 1859, he gave notice in writing to the defendant, that he regarded him as his tenant at will, of the farm, and directed him to quit on August 10, 1859. The defendant continued his possession, mowed the grass, harvested the hay and other crops, and also pastured the land, which had been mowed by him, and that which had been used as pasturage, till the close of the season. On Oct. 1, 1860, this suit was instituted. Nothing in the case shows, that the defendant ever recognized the relation of landlord and tenant, as existing between the plaintiff and himself. The rights of the former were exclusively those of a mortgagee, not having taken possession. The possession of the defendant was that of [73] tbe mortgager, whose possession had never ceased, by himself or his lessee, and the action cannot be maintained better against one than the other. The notice of the plaintiff to the defendant, to leave the farm, as therein directed, and the expiration of the time within which it was to be done, did not change the possession, and gave no right to maintain this action. The land, according to the ease, was used for the ordinary purposes of husbandry, and, in the case of Fernald v. Linscott & als., 6 Greenl., 234, this Court recognize the doctrine as well settled, that, until entry, the mortgager is not accountable to the mortgagee for rents and profits; for he is not a trespasser in taking them, though he cannot lawfully do any thing to impair the estate, or the security of the mortgage, and such was not done in this case, according to the statement. Plaintiff nonsuit. Bice, Appleton, Cutting, May and Kent, JJ., concurred.