Beach v. Clark

PETERS, J. By the execution and delivery of the mortgage deed, the mortgagee became the legal owner of the land in question, and lawfully seised and possessed of the same, by a title defeasible until the expiration of the law-day, and indefeasible afterwards and could, at any moment, maintain an action of trespass or ejectment against the mortgagor, or any other occupant, without her consent. " The delivery of a deed, whether a mortgage or a clear deed," said the late Judge Smith in Wakeman v. Banks, 2 Conn. Rep. 451." is tantamount to livery of seisin, and will enable the grantee to bring forward his action against the grantor, who shall withhold possession from him." A fortiori, may the mortgagee justify her own or her servant's entry against a stranger, a mere squatter, without colour or pretence of title. Indeed, the question is not, whether the defendant, or his lessor, have a perfect title, but whether a record title is not better than none. This question has been so frequently and so recently decided, by this Court, that it would be a work of supererrogation to discuss it on principle or authority. See Rockwell v. Bradley, 2 Conn. Rep. 1. Wakeman v. Banks, 2 Conn. Rep. 448. Clark v. Beach, ante 142. I am satisfied with these decisions and in the language of the late Ch. J. Swift, sincerely hope, that this source of litigation is exhausted. Having no doubt on this points I give no opinion on the other, and advise a new trial. The other Judges were of the same opinion, except Brainard J., who, was absent; Hosmer, Ch. J. concurring solely on the authority of Clark v. Beach, ante 142. New trial to be granted.