4 Vt. 105 | Vt. | 1832
pronounced the opinion of the Court. — <• The plaintiff, as mortgagee, has recovered nominal damages and his cost, but has not recovered the land sued for. The county courb 'n seems, considered that the defendant’s paying the amount of the decree of foreclosure, still left them liable to pay what cost had arisen in the action of ejectment at the time of such payment, though such action was commenced after the decree was made.
In revising this decision, we are led to examine the title of the mortgagee to the mortgaged premises. His title enables him to hold till his debt is paid. At common law, he is entitled to sue forthwith, and obtain possession ; but then he must account for the rents and profits, in case of redemption afterwards. By our statute, the mortgagor has right to hold possession till failure of payment of some instalment. If the mortgagee recover possession and damages for rents and profits, these rents and profits so recovered, if collected, as well as the rents and'profits taken from the premises by the mortgagee, go so far in- payment of the debt,whenever the mortgagor chooses to pay the residue. If the mortgagee gives no deed, but conveys the debt, this conveyance of the debt carries, in equity, the land also, as a security for the payment of the debt. But if ejectment is brought, it must be in the name of mortgagee, or of one who holds under him by deed. And, if the plaintiff in ejectment does not own the debt, he recovers and holds in trust for him who does own the debt. And no such transfer can take away the right of the mortgagor to have the rents and profits, by whomsoever taken, applied in payment of the mortgage money, until an actual foreclosure.
Our statute has- regulated- the action of ejectment, also, and given a form of action not known at common- law : and by section 88, on page 84-5, provides, that the plaintiff shall recover as well his damages, as the seizin and possession of the premises; and, by that and another statute, the judgement, while in force, makes a good title to the premises, in the party recovering, whether he be plaintiff or defendant. This has been construed, and must be construed, to mean a judgement rendered upon the trial of the merits. If a judgement upon the merits is decisive of title, care must be taken that no recovery shall be had by plaintiff when he has no title. The county court, bearing this in mind,did not suffer the plaintiff to recover the premises sued for, because his- title was gone, by payment in full of the mortgage money. But considering that the plaintiff had title, when he commenced his action, the defendant was liable to pay the sosts, which, had. accrued,, while that title in the plaintiff continued-
The plaintiff must have a good title, as against the defendant, both when he commences his action of ejectment, and when the same is tried. This is laid down in Adams on ejectment,page 32 ; and supported by several authorities there cited.
The same author, on page 33, suggests, however,that the right of possession expiring,pending the suit, would not prevent a recovery. To support this he cites the 14th of East’s Rep. 488, Doe, ex dem. Grundy vs. Clark. But there is no such law in that case, nor do I find any such in any book whatever. The only point, decided in that case, was, that the overseers of the poor could not maintain ejectment against a defendant, who took possession under former overseers, and who had never acknowledged himself to be holding under the plaintiffs.
We may now enquire how these principles affect the present
If there had been no decree of foreclosure, and the defendant had offered payment, the plaintiff would not have been obliged to receive any thing, till the whole was offered, including all costs legally made. But, if he consents to receive the principal debt, and discharges it, without insisting upon costs in collateral suits, it is difficult to discover his right afterwards to compel payment of those costs.
The decision, we now make, is in accordance with the decision in the case of Edgell vs. Stanfords, reported in the 3d Vol. of Vermont Reports, page 202. The question in that case was rather one of practice ; whether the plaintiff, in ejectment on mortgage, must produce his note on trial, to avoid the presumption of payment, or whether the defendant must prove payment in order to avail himself of it. The Court decided, that the plaintiff must produce his note, or fail to recover. They considered the debt
We consider the doctrine of that case, not permitting a mortgagee to recover in ejectment, unless he yet has a debt secured by his mortgage, to be correct. And both from the authority of that case, and from general principles, as, also, from the reason of the case, we consider the judgement of the county court erroneous, and the same is reversed, and a new trial is granted.
The plaintiff, after this decision, not wishing for another trial, consented to. a judgement for the defendants, and .the Court allowed the defendants to tax cost only from and after the time when he satisfied the decree of foreclosure.