Chellis v. Stearns

Bell, J. It is well settled, that as between third persons and either the mortgagor or the mortgagee, or those who represent them, the mortgage is considered merely as a security. The mortgagor and his representatives, (so long as they retain the possession,) are regarded as the owners, and the mortgagee, out of possession, is taken to have a mere lien upon the property for the security of his debt. Southern v. Mendum, 5 N. H. Rep. 429; Glass v. Ellison, 9 N. H. Rep. 69 ; Smith v. Moore, 11 N. H. Rep. 61; Ellison v. Daniels, 11 N. H. Rep. 274. But as between the mortgagor and mortgagee, the mortgage vests the seizin of the estate in the mortgagee at law, though in equitable proceedings, it is, between them, regarded merely as a security. Brown v. Cram, 1 N. H. Rep. 169; Pettengill v. Evans, 5 N. H. Rep. 54. Unless there be some agreement, by which the rights of the mortgagee are limited, or such circumstances, as would fairly AYarrant a jury in inferring such an agreement, the mortgagee may, at once or at his pleasure, enter into the mortgaged premises. Brown v. Cram, 1 N. H. Rep. 169 ; McMurphy v. Minot, 4 N. H. Rep. 255; Hobart v. Sanborn, 13 N. H. Rep. 328. Or, he may maintain a real action for the recovery of the possession. Hartshorn v. Hubbard, 2 N. H. Rep. 453 ; [315] Dearborn v. Dearborn, 9 N. H. Rep. 117; Ellison v. Daniels, 11 N. H. Rep. 274 ; Smith v. Moore, 11 N. H. Rep. 61; Hobart v. Sanborn, 13 N. H. Rep. 226. Or, he may support an action of trespass against the mortgagor, for taking down a building, or other waste of the property. Pettengill v. Evans, 5 N. H. Rep. 54; and for cutting down and carrying away timber trees, unless the assent of the mortgagee to such act may be reasonably inferred. Smith v. Moore, 11 N. H. Rep. 55 ; Sanders v. Reed, 12 N. H. Rep. 558. It is on the presumed assent of the mortgagee that the mortgagor shall occupy the premises and take the crops and profits, including fuel, so long as the mortgagee acquiesces, without any entry or prohibition, that it is held no action of trespass can be maintained for such occupation. Curtis v. McClary, 5 N. H. Rep. 529 ; Smith v. Moore, 11 N.H. Rep. 61. The mortgagee, having a right of entry, may justify the breaking and entering charged in the plaintiff’s writ. If. he can justify those acts, that is, by well settled principles, an answer to the whole action. Kingsbury v. Pond, 3 N. H. Rep. 511; Ferrin v. Symonds, 11 N. H. Rep. 365. No beneficial results are likely to follow from holding, that a man may justify his entry upon mortgaged premises or not, according to the motives or purposes which led to it. The matter of defence suggested in the brief statement might equally well have been pleaded. If pleaded and denied, the evidence produced in this case, (the mortgage deed,) unless impeached, would furnish conclusive proof of the truth of the plea. It shows that the premises, on which the trespass is alleged to have been committed, are in law the soil and freehold of the supposed trespasser. It would be a novelty to reply, that the mortgagee was seized by virtue of a deed of mortgage made to him by the plaintiff, &c., and that he entered “not for the protection of his interests,,” but for the purpose of taking and carrying away, &c. The fact, that no such form of pleading has yet found its way into our books is very conclusive. In equity, the rights of the parties interested in mortgaged property, can be suitably and adequately guarded and secured, [316] without doing violence to the principles or practice of equitable proceedings ; and it does not seem either necessary or expedient to unsettle all the rules by which Courts of law have been heretofore governed, to introduce a question of so much difficulty as that of the motives of a party’s conduct, into an action of this kind. Lackey v. Holbrook, 11 Met. 458. Judgment on the verdict.