Furbush v. Goodwin

| Superior Court of New Hampshire | Dec 15, 1854

Woods, J.

The question raised in this case may be briefly disposed of. It is simply whether a mortgagee can justify his entry upon mortgaged premises as against a mortgager, where right to continue in the possession after the execution of the mortgage is thereby reserved to the mortgagee.

As between the mortgager and mortgagee the legal estate is in the latter, and he is entitled, like other owners,- to the immediate possession. And the mortgagee may maintain a real action for the recovery of the possession against the mortgager, or others holding his rights. And he may also maintain an action of trespass against the mortgager for taking down buildings or other waste of the estate, and also for cutting down and carrying away timber without the assent of the mortgagee. In the absence of any agreement for possession by the mortgager, the mortgagee may immediately, and at his pleasure and of strict right, enter into the mortgaged premises, and after such entry he may maintain trespass against the mortgager, who shall continue in possession of the premises thereafter. The mortgage, immediately upon its execution, vests in the mortgagee, and those claiming under him, the seizin as well as the title, and, as against the mortgager, he is regarded in law as the owner of the estate. These principles are fully recognized by this court in Chellis v. Stearns, 2 Foster’s Rep. 312, where the authorities are numerously collected in support of them. In view of these well settled principles, and in the absence of any decision upon the point under consideration, it would seem difficult to discover how any doubt could be raised as to its proper' determination. The defendant had a perfect legal title to the premises, as well as a perfect right of entry into them, and he entered peaceably, in accordance with that right.

The case presented, then, is that of an attempt to charge one with a trespass in entering peaceably upon premises of which he is the owner., and to the possession of which he has a present and perfect right, by one who is in the wrongful possession of them, and for continuing which he himself is, upon well-considered decisions, a trespasser. The fact that the defendant had not at any time prior to the alleged trespass, actual possession of the premises, cannot change the result. A right of entry and possession at the time furnishes a sufficient answer to the action.

But we regard this case as being fully decided by this court in the case of Chellis v. Stearns, before referred to, and entertain no doubt that the defendant is well entitled to

Judgment on the verdict