Keith v. Swan

Per Curiam. To a writ of entry upon a mortgage in fee, the tenant in the action has pleaded in bar that he is not, and was not at the commencement of the suit, tenant of the freehold. The demandant objects that this ought to have been pleaded in abatement, and, on that ground, has demurred to the plea. We are agreed in the opinion that the demurrer must prevail. Non-tenure cannot be pleaded but in abatemeht. (4), (a) Further, an action for possession by a mortgagee is not governed altogether upon the general principles applicable to real actions. It is wholly bottomed on our statutes. The right to the freehold is not decided in such action. Any person in possession of the mortgaged premises is liable to the action of the mortgagee. The plea is adjudged bad, and the conditional judgment prescribed by the statute must be entered. Footnotes [(4)] Bull. N. P. 116, cites 1 Barnes, 238. [(a)] Sed vide Otis vs. Warren, 14 Mass. Rep. 239. — Prescott vs. Hutchinson, 13 Mass. Rep. 439.—Dewey vs. Brown, 5 Pick. 238. — Brown vs. Maltimore, 2 N. H Rep. 442. — Olney vs. Adams, 7 Pick. 31.