Doe v. Grimes

Sullivan, J. — This was an action of ejectment brought by a mortgagee against a mortgagor. Plea, not guilty. The mortgage-deed was dated August the 21st, 1841, and was made to secure the payment of 4,100 dollars in three years from its date. The suit was commenced before default in the payment of the mortgage-money, and the only question in the case is, whether ejectment may be maintained by a mortgagee against a mortgagor before default, where the mortgage-deed is silent as to the possession. The Circuit Court gave judgment for the defendant, and the plaintiff appealed to this Court. The law, we think, is well settled that the mortgagee, by virtue of his mortgage, becomes the legal owner of the pre [2] mises, and is consequently entitled at law to the immediate possession, unless there be an agreement between the parties, expressed in the contract, or plainly inferible from it, that the mortgagor shall remain in possession. Coote on Mort. 342, 351. — 1 Powell on Mort. 158, n. — 3 id. 1152. — 4 Kent, 155. In Birch v. Wright, 1 T. R. 378, Buller, J., says, “The mortgagee has. a right to the actual possession whenever he pleases ; he may bring his ejectment at any moment that he will; and he is entitled to the estate as it is with all the crops growing on it.” And in Colman v. Packard, 16 Mass. 39, the Court said that it had long been settled and well known, that a mortgagee had a right to immediate possession of the mortgaged premises ; and yet, said the Court, “ parties still go on making mortgages without any covenant respecting the possession, although it is intended that the mortgagor shall remain in possession until the condition is broken.” Courts of equity also acknowledge the right of the mortgagee to the possession, and will not, it seems, interfere to prevent him from pursuing his legal remedy. CholmondeLEy v. Clinton, 2 Merivale, 359.— Williams v. Medlicot, 6 Price, 495(1). J. 8. Newman and 8. E. Perkins, for the appellant. J. Rariden, for the appellees. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c. (1) “ No action shall hereafter be maintained, by which a mortgagee, or his assigns, or representatives, shall recover the mortgaged premises, or the possession thereof, unless there be, in addition to the usual covenants, a clause inserted in such mortgage, by which it is specially provided that the mortgagee shall be entitled to the possession of such premises.” R. S. 1843, p. 459.