Hartshorn v. Hubbard

2 N.H. 453 | Superior Court of New Hampshire | 1822

By the court.

It is clear, that a mortgagee may at any time enter into the land mortgaged, or maintain a writ of entry against the mortgager unless restrained by contract, 1 N. H. Rep. 169, Brown vs. Cram.—16 Mass. Rep. 39, Coleman vs. Packard.

It was inlimaicd in the case of Brown vs. Cram, that to take from the mortgagee the right of possession, there must be an express stipulation in the deed, that the mortgager shall retain the possession. But that was not a point decided. And we are of opinion, that where it appears from the terms of the condition by necessary implication, that it must have been the understanding of the parties that the mortgager should retain possession, unless the condition be broken ⅞ the mortgagee can neither enter and expel, nor maintain a writ of entry against the mortgager, until the condition is broken, or some waste done.

In this case, the necessary implication is, that the tenant was to retain possession, for he was to deliver half the produce, and carry on the farm ; and we are of opinion, that he is entitled to

Judgment.