Mayo v. Fletcher

Putnam J. delivered the opinion of the Court. The question in the first case is, whether the plaintiffs can maintain the action of trespass quare clausum fregit. The entry of the defendant under Shattuck within the four months, was lawful. Newall v. Wright, 3 Mass. R. 152. He was in the same situation as the mortgager would have been in, if he had kept the possession himself during that time. The legal estate was in the mortgagees, but the. effect of the agreement between the mortgager and the mortgagees amounted to a lease to the mortgager for the four months. 1 Powell on Mortg. (Rand’s edit.) 155. The mortgager did not pay the note on the day when it became due, but he tendered the money to the plaintiffs within a short time afterwards. There is no doubt but that the mortgagees, after the breach of the condition, might have lawfully entered ; and if there had not been any such agreement to the contrary, they might have entered before the breach of the condition ; or they might have maintained their writ of entry and have recovered tr.e possession, without any notice to the mortgager to quit. The mortgager had less rights than a tenant at vyill would have had He would not have been entitled to the emblements, as a ten ant at will would have been. [531] But while the mortgager, or any persons under him, are by the mortgagees permitted to remain in possession, and the mortgagees omit to enter, the mortgager and those who are in under him, are in contemplation of law taking the rents and profits to his and their own account. So the mortgager may sell the estate, subject to the condition ; and he may maintain trespass or entry sur disseisin against a stranger. Willington v. Gale, 7 Mass. R. 138. And the assignee of the mortgager is not liable in trespass for” the rents and profits accruing between the commencement of the action to foreclose and the time of taking possession upon execution. Wilder v. Houghton, 1 Pick. 89. In Moss v. Gallimore, 1 Dougl. 282 [269], Lord Mansfield said, “ A mortgager is not properly a tenant at will to the mortgagee, for he is not to pay him rent. He is so only quodam modo.” “ Where the mortgager receives the vent by tacit agreement with the mortgagee, it is in the power of the latter to put an end to the agreement when he pleases.” If the mortgager had remained in possession, and had held over after the four months, he would have been afterwards a tenant at sufferance to the mortgagees. “ A tenant at sufferance (says Lord Coke, Có. Lit. 57 6,) is he that at first came in by lawful demise, and after his estate ended continuelh in possession and wrongfully holdeth over.” And the defendant, coming into the possession within the four months, and holding over afterwards wrongfully in the eye of the law, would be a tenant at the sufferance of the mortgagees. They could enter upon him just when they pleased ; and if the defendant ha.d re entered, the mortgagees might have maintained trespass quare clausum fregit against him. The mortgager has a right to possession, until the mortgagee brings his ejectment, or until entry by the mortgagee. Rex v. St. Michaels, 2 Doug. 632 [610]. Per Lord Mansfield. “ After the mortgagee has got into possession he might gain a settlement,” but not before, although he has the legal estate. “ If a term is assigned by way of mortgage with a clause of redemption, the lessor cannot sue the mortgagee as assignee of all the estate, &c. of the mortgager, even after the mortgage has been forfeited, unless the mortgagee has taken the actual possession.” [532] Eaton v. Jaques, 2 Doug. 455. And Buller J. thought that the assignment were absolute, the action (debt for rent) would not lie without possession. Ibid. 1‘ As to all the world, except the mortgagee, the mortgager is considered as the owner of the land, until an actual entry under the mortgage.” Goodwin v. Richardson, 11 Mass. R. 473. In Rising v. Stannard, 17 Mass. R. 288, this Court held, that an action of trespass will not lie against a tenant at sufferance before actual entry by the landlord. In Danforth v. Sargeant et al. 14 Mass. R. 491, the defendants contended, (manifestly against law,) that where the tenant held over, the landlord could not obtain possession unless by process of law. But the Court said, that the landlord might “ enter al pleasure and order the lessee out,” and if he should hold over, that would be a trespass. If, as in Fitchburg Cotton Man. Corp. v. Melven, 15 Mass R. 268, there had been an entry and eviction, the lessee of the mortgager might have been treated as a trespasser or disseisor. But there has not been any entry by the plaintiffs for condition broken ; nor have they obtained actual possession ot the premises. But if the plaintiffs were the absolute owners, when the term of four months expired, the defendant, coming in as he did by title, could not be treated as a trespasser before entry by the plaintiffs upon him. Lifford's case, 11 Co. 51. Whether the term for years became absolute or not makes no difference in regard to the right of the plaintiffs to maintain trespass against the defendant, for he came in by title ; though he held over by wrong, the plaintiffs could not maintain trespass against him before they entered, even if Shattuck had been a disseisor. For these reasons we are all of opinion that the plaintiffs must become nonsuit. The case of the plaintiffs against Shattuck is assumpsit for one month’s rent. We are referred to the statement of facts contained in the case of the plaintiffs against Fletcher. By that statement it is agreed, that the defendant mortgaged the prem [533] ises to the plaintiffs, to secure his note for $275 in four months ; that he was to retain the possession until default of payment ; that the money was not paid at the day, but was tendered shortly after by the defendant and refused by the plaintiffs ; that Fletcher occupied under the defendant, and held the possession over the four months, and for the month for the rent of which this action is brought, as well as for the time after the expiration of that month until the commencement of that action against Fletcher ; and that the plaintiffs have not made any entry into the premises. It is agreed in the case at bar, that the defendant claims to own the dwellinghouse. . The plaintiffs claim to own the premises, which consist of a term of years, with a dwellinghouse. They contend that this is personal property, a chattel real, which vested in them absolutely, without any act or entry on their part to be done, upon the breach of the condition ; and they insist, that inasmuch as the money was not paid at the day, the defendant ceased thenceforward to have any right to redeem the same. Enough is agreed by the parties to satisfy the Court, that the title to the premises is contested ; it is contended on the part of the defendant that he, as mortgager, was rightfully taking the profits, as the plaintiffs have not entered upon the premises for condition broken ; and on the part of the plaintiffs, that the property became absolutely'vested in them, upon the failure of the defendant to pay the note at its maturity, I't is agreed that there has not been any express promise to pay rent. The claim of the defendant is wholly adverse. For if he is to be considered as a mortgager in possession after condition broken and before entry by the mortgagees, it is clear that he is not accountable for the rents. Fitchburg Cotton Man. Corp. v. Melven, 15 Mass. R. 268; Gibson v. Farley, 16 Mass. R. 280; Wilder v. Houghton, 1 Pick. 87. The law will rot imply an assumpsit under these circumstances. We refer to the cases cited by the counsél for the plaintiff, to that point, and to The City of Boston v. Binney, 11 Pick. 1, which has been published since this cause was argued. Being all clearly of opinion, that the relation of landlord and tenant has not existed between the parties during the time for which the plaintiffs sue for the use and occupation of the prem [534] ises, and that the title to the same cannot be tried in this action, the plaintiffs must become nonsuit.