Wales v. Mellen

Metcalf, J. There is no doubt that by our law a mortgagee may take possession and eject the mortgagor, before condition broken, unless there is an agreement between them to the contrary. Newall v. Wright, 3 Mass. 155. Rev. Sts. c. 107, § 9 513 Such is also the law of New Hampshire and Maine. But an agreement by the mortgagee, that the mortgagor may remain in possession until condition broken, need not be expressly set forth in the mortgage, nor in any other writing. Whenever it appears by necessary implication from the terms of the condition of the mortgage, that it must have been the understanding of the parties that the mortgagor should retain possession, the mortgagee can neither enter and expel the mortgagor, nor maintain a writ of entry against him, before condition broken or» waste committed. Hartshorn v. Hubbard, 2 N. H. 453. Flanders v. Lamphear, 9 N. H. 201. Rhoades v. Parker, 10 N. H. 83. Lamb v. Foss, 21 Maine, 240. Clay v Wren, 34 Maine, 187. In the case now before us, it is set forth, in the preamble to the condition of the mortgage, that the said Hannah had conveyed the demanded premises to the said Nathaniel K. “ for her future maintenance and support,” and that the said Nathaniel K. had, “ at the same time, reconveyed the same premises to said Hannah, as security for such maintenance and support.” Then follows the condition, that the tenant shall maintain the demand-ant, in sickness and in health, by providing all things necessary for her comfort and support, and at her decease give her a decent burial. We are of opinion, upon the reason of the matter, as well as upon the decisions above cited, that it is a necessary implication from the terms of this preamble and condition, that the tenant should retain possession of the demanded premises while he should perform, from time to time, the acts, the performance of which the mortgage was intended to secure. By taking the demanded premises from him, the demandant would probably prevent him from carrying into effect the purpose for which alone the mortgage is expressed to be made. The demandant’s counsel relied on the case of Colman v. Packard, 16 Mass. 39, as a conclusive authority for the maintenance of this action. But in that case, though it much resembles this, the doctrine, which we now adopt and apply, was not considered. The points there discussed and decided were, that the mortgagee was entitled to possession, before condition broken, 514 unless there was a written agreement to the contrary; and that parol evidence of such agreement was inadmissible. And these points were rightly decided. But in applying the first of those points to the facts of that case, the doctrine of an agreement necessarily implied from the terms of the condition of the mortgage was overlooked. Demandant nonsuit