65 Md. 272 | Md. | 1886
delivered the opinion of the Court.
As we construe the declaration, the action is one of trespass on the case by a mortgagee against ’the sheriff for levying upon and selling, by virtue of an execution against the mortgagor, a crop of onions, and a crop of strawberries, growing on the mortgaged premises. The plaintiff alleges herself to have been in possession of the crop of onions and the crop of strawberries, but she does not allege that she was in possession of the mortgaged premises, that is, the land mortgaged.
The first question is, was the mortgagee entitled, by the terms and condition of the mortgage, to make entry upon and assume possession of the land, before condition broken ?' Eor if so, it is quite clear upon all the authorities, that, having taken possession, she would have a right of action against the sheriff for seizing and selling the emblements growing on the land; and consequently the prayer offered by the plaintiff should have been granted.. But this Court is of opinion, considering the nature and object of the mortgage, and giving force to the special terms employed in the condition thereof, that the right of entry did not accrue to the mortgagee until condition broken; that is to say, the failure of the mortgagor to pay all of the indebtedness for which the mortgagee was surety, on or before the 5th day of November, 1885,- or to indemnify and save harmless the mortgagee from all loss or payment of money by reason of such suretyship, before that day. There could have been no reason for such limitation in the condition of the mortgage, if the right of immediate entry and possession of the premises had been intended to vest in the mortgagee; and the fair and reasonable implication, from the nature of the mortgage, and the terms employed, is, that the mortgagor should be entitled to remain in possession until the condition broken. The case would seem fully to fall within the principle recognized by the Court in Jamieson vs. Bruce, 6 G. & J., 72, 74, where, “by fair inference or necessary implication from the instrument, the conclusion can be drawn, that the mortgagor was quietly to enjoy the mortgaged property,” until default made ; and where such is the case, the mortgagee has no right of entry, or to the exclusive possession, until the time designated in the mortgage. Until then the mort
But in this case, the mortgagee, as we have said, was not entitled to the possession until the condition broken, and until then the mortgagor was entitled to the possession, and to the emblements of the land mortgaged. It was only the land itself, the specific thing, with the improvements thereon, that was in pledge; the rents and profits were not pledged, so long as the mortgagor was entitled to the possession; but they belonged to the tenant in possession, whether such tenant was the mortgagor, or a third person claiming under him. Kountze vs. Omaha Hotel Co., 101 U. S., 378; Teal vs. Walker, 111 U. S., 250. And such being the well established principle, the possession of the plaintiff, taken under the circumstances stated, is not shown to have been rightful; nor is there any allegation or proof to show that the seizure and sale of the onions and strawberries, growing on the mortgaged premises, in any way in fact impaired the mortgage security, to the injury of the plaintiff, to entitle the latter to maintain an action on the case against the sheriff. The Court below was therefore clearly right in rejecting the proposi
Judgment affirmed.