Wilson v. Hooper

The opinion of the court was delivered by Collamer, J. The mortgagor, even after condition broken, is still the owner of the land, subject to the right of the mortgagee to enter. The mortgagor is tenant to the mortgagee. There has been much discussion as to which class of tenancy this belonged, but all agree he is tenant, and perhaps it may as well be said he is tenant by mortgage ; not strictly tenant at will or by sufferance. By our statute, the mortgagor has the right of possession until condition broken. In New York it is holden that the mortgagor has a right of entry, but can assert it only by an action, which he may bring without any notice to quit. In Massachusetts it is holden that the mortgagee may, at pleasure, and without notice, enter for condition broken. It appears to us most reasonable to allow any man peaceably to assert his legal right, by his own act, without driving him to an action. It has [656] been fully decided, in this state, that the mortgagee may bring ejectment, without notice to quit, and in such action may recover the possession of the land, and damages for the use and occupation from the time of notice or the time of the service of the writ; and this, too, either against the mortgagor or his assignee. Lyman v. Mower et al. 6 Vt. R. 345. It would appear useless and unreasonable to prevent him from entering and peaceably taking the very use for which we would permit him to recover in an action. This court have, therefore, heretofore recognized the right of the mortgagee to enter for condition broken, and still consider this the legal course. To the mortgagor, or his assignee, (who can claim no greater rights,) this taking the use, or recovering the same by action, by the mortgagee, is no loss, as the mortgagee must apply the same in extinguishment of the mortgage, until foreclosure'of the equity of redemption. The mortgagee must, therefore, so unequivocally take possession as to he clearly holden to account for the use. This he may do by demanding possession, and having it delivered to him, as mortgagee, or he must by clear acts enter on the land and proceed to occupy. In this case it appears the mortgagee, after condition broken, entered upon the land, possessed by the assignee of the mortgagor, and there, with the officer, first attached some personal property, formerly belonging to the mortgagor, and of which no actual possession had been delivered to any other, and for which another action is pending. He then proceeded to take entire and exclusive possession of the farm, and to secure the crops. This was an unequivocal taking possession; so as to render him liable to account for the crops, on the mortgage. What he did with the crops, whether he had them attached on the mortgage debt, or sold them, or destroyed them, is entirely immaterial. It was rightly decided that he was not a trespasser. Judgment affirmed.