Hennesy v. Farrell

Downer, J. Michael Mulvaney, as guardian of two infants, sold and conveyed tbe land in dispute to tbe plaintiff: and she executed and delivered to tbe guardian a bond, with a condition tbat she would clothe, maintain and educate for a term of years tbe infants, and a mortgage on tbe land to secure tbe performance of tbe conditions of tbe bond. Tbe defendant alleges tbat those conditions have not been performed, and tbat be, by tbe dbection of Mulvaney, tbe guardian and mortgagee, peaceably went into possession of, and now resides upon, tbe said premises. Is tbis averment sufficient to show tbat tbe defendant is tbe tenant of tbe mortgagee, or tbat be bolds as tbe agent of Mul-vaney, so tbat tbe possession óf tbe defendant is tbe possession of tbe mortgagee ? If Mulvaney bad been tbe absolute owner of tbe land, and tbe defendant bad gone into possession of tbe [44] same by bis direction or permission, without any agreement to pay rent, the authorities are that he would be a tenant at will, or from year to year, of the owner. Jackson ex dem. Livingston v. Bryan, 1 Johns., 322; Cheever v. Pearson, 16 Pick, 266; Regina v. Winter, 2 Salk, 587; Proprietors, &c., v. McFarland, 12 Mass., 325; Farrow v. Edmundson, 4 B. Mon., 605; Jackson v. Miller, 6 Wend., 231. The mortgagee, according to repeated decisions of this court, being lawfully in jcossession of the mortgaged lands, cannot be ejected by the mortgagor or Ms assigns, while the mortgage remains unsatisfied. . If the mortgagee can take peaceable possession of the premises, he has a right so to do ; and what he could do himself, he may authorize another to do for him. We are of opinion that the averments in the answer are, in legal effect, that the defendant is in possession as tenant either at will or from year to year of the mortgagee. It follows that the answer sets up a good defense, and the circuit court erred in sustaining the demurrer. By the Court. — The order of the circuit court is reversed, with costs.