Durgin v. Busfield

Colt, J. The plaintiff claims that the defendant is liable for the use. and occupation of the mill described, as tenant at sufferance. Gen. Sts. c. 90, §§ 25, 26. He claims title under a mortgage given by Wentworth, describing a tract of twenty-one acres, of which the mill is only a part. The Wentworth mortgage was subject to a power of sale mortgage given by Bruce on the mill alone, and came by assignment from Rich to the plaintiff, who thereupon made entry on the twenty-one acres for the purpose of foreclosure. The defendant was in possession of the mill as tenant at will of Bruce, and retained possession after the entry until the date of the writ. The defendant put in evidence the prior mortgage of the mill by Bruce and a sale under the power to Rich, while he was holder of the Wentworth mortgage, and claimed that the assignment of that mortgage by Rich, after the sale of the mill to him under the first mortgage, passed no title in the mill to the plaintiff. The defendant’s position is well taken. The assignment is in the usual form, and cannot be construed as conveying more than [494] the assignor’s mortgage title. The words are, “ sell, assign, transfer, set over and convey ” “ said mortgage deed, the real estate thereby conveyed, and the promissory note, debt and claim thereby secured.” At the time of the assignment the title of Rich to the mill under the Wentworth mortgage had been defeated by the sale under the first mortgage. By that sale he became absolute owner of the mill free from any right of redemption, and held it no longer as mortgagee. The real estate conveyed by the assignment was not an absolute title in fee, but a title in mortgage, and did not therefore include the mill. When the assignor has an interest in the mortgaged premises distinct from his interest as mortgagee, an assignment in this form, without additional words, cannot be held to pass such distinct interest. Merritt v. Harris, 102 Mass. 326. The plaintiff shows no title to the mill. The defence is not merely that a third person is shown to have a paramount title, but that the plaintiff himself shows no title. The rule that the tenant cannot contest the title of his lessor has no application, because the relation of landlord and tenant never existed between them. Morse v. Goddard, 13 Met. 177. Exceptions sustained.