Colby v. Poor

Parker, C. J. The last position taken by the tenant does not seem to be sustained on the facts. The tenant does not appear to have had any title at the commencement of the suit, on the evidence stated. The demandant had been in possession with title, and might well maintain an action against any one but the mortgagee, or some one claiming under him, which it does not aj>pear the tenant did when the suit was instituted. The tenant, then, if he will defend himself, must do so on his plea ; and the question is, whether, on the evidence, Brown did enter into peaceable possession of the premises, and hold the same so as to foreclose the mortgage; or whether the right of dower in the plaintiff’s mother in one third, and her possession, with that of the plaintiff living with her, prevented a foreclosure. If foreclosed, Brown must have had peaceable possession within the intent and meaning of the plea. This was not properly a mixed possession. Brown’s tenant and this demandant, with his mother, occupied severally. As the demandant occupied by an arrangement with the tenant, he may, to the extent of his occupation of all but the dower, be regarded as Brown’s tenant. The question then is, whether, where land, part of which is subject to a life estate, is mortgaged, and the mortgagee enters into the residue, and retains peaceable possession for a year, the mortgage will be foreclosed. This is settled by the principle of Gilman vs. Hidden, 5 N. H. Rep. 30, where it is held that if a mortgagee continue in the actual and peaceable possession of the mortgaged premises for a year after the condition is broken, the right of the mortgagor will be lost, although he may have resided with the mortgagee upon the land. The fact that part of the premises was subject to the life estate of the widow, could not prevent an entry into the residue for the purpose of foreclosure, and a peaceable possession of all the mortgagee could possess, for the term of a year, without redemption, must operate as a foreclosure, or there could be no foreclosure under the statute. We are of opinion that the life estate in part cannot debar the mortgagee of his remedy in this mode. If it would, there seems to have been no mode in which the mortgagee could have foreclosed in such case, prior to the exist [201] ence of the chancery jurisdiction. No suit could have been maintained for the part occupied as dower. Verdict set aside, and judgment for the defendant.