Northampton Paper Mills v. Ames

Wilde, J. These two actions were tried at the samé time, and both depend on the rulings of the presiding judge at the trial; and we think it very clear that the rulings were in every respect correct. The plaintiffs had the legal title in the locus in quo, under a deed of mortgage, and the defendants were tenants of the mortgagor. And it was proved, that before the trespasses complained of in the plaintiffs’ declarations, they entered upon the mort gaged premises for condition broken; and that, before commencing their first action, they entered again; and we consider both those entries as lawful, and that the legal possession was thereby in the plaintiffs. It is objected by the counsel for the defendants, that they were not dispossessed by the first entry, but continued to have the actual possession; and that the plaintiffs cannot maintain trespass, until after an eviction or actual dispossession. But we are of opinion that the plaintiffs might elect to consider the defendants as trespassers, after their refusal to quit, as they might consider them as disseizors, and in a writ of entry evict them. And if the defendants refuse to quit, and their continued occupation against the will of the plaintiffs would amount to an actual disseizin; still the plaintiffs by their subsequent entry became lawfully reseized, and had a right to maintain trespass for the mesne profits, without resorting to a writ of entry. It was so decided, and upon well settled principles, in Putney v. Dresser, 2 Met. 583. It was however objected, that the subsequent entry of the 5th of August was not legal, because the plaintiffs’ agent was [8] forbidden by one of the defendants to take possession But there is no ground for this objection. The defendants had no right of possession, and consequently had no right to resist the plaintiffs’ entry. Another objection was, that the plaintiffs’ first entry for condition broken was not made in the presence of two competent witnesses, and was therefore not a valid entry for the purpose of foreclosing the right of redemption. We consider this objection also as entirely unfounded. It is immaterial whether the entry was, or was not, valid for the purpose of foreclosure. The entry was lawful, and would have been so if it had been made before the condition was broken. We are therefore clearly of opinion that the rulings of the court, upon the whole matters, were correct, and that the plaintiffs are entitled to recover in both actions. According to the agreement of the parties, the defendants are to be defaulted.