Porter v. Hubbard

134 Mass. 233 | Mass. | 1883

Field, J.

After Dickinson entered upon the tobacco land for breach of the condition of his mortgage, a certificate whereof was duly made and recorded, the legal title to the crops then growing or thereafter raised was in him. After such entry, the legal possession was in the mortgagee, although the mortgagor remained in actual occupation. Thompson v. Vinton, 121 Mass. 139.

If Augusta A. Porter became a tenant at will to the mortgagee, she would be entitled to the crops during the tenancy, but this tenancy must be established by a contract between the parties. As a person claiming title under the mortgagor, in subordination to the mortgage, she would have no right to the crops. The title of the plaintiff, therefore, must depend upon some agreement between Dickinson and Augusta whereby she acquired the ownership of the tobacco, or upon some authority derived from him to deliver it to the plaintiff in payment of her debt. Gilman v. Wills, 66 Maine, 273. Marden v. Jordan, 65 Maine, 9. Page v. Robinson, 10 Cush. 99. Field v. Swan, 10 Met. 112. Woodward v. Pickett, 8 Gray, 617.

We are not required to determine, in this case, whether, if a mortgagee of a farm, after entry for breach of condition and a certificate and record thereof, does not retain actual occupation, but intentionally permits the mortgagor or any person claiming under him to occupy and carry on the farm, there is not an implied license to the occupant to use and sell, according to the ordinary course of husbandry, the annual crops, even although a tenancy at will may not be created. Searle v. Sawyer, 127 Mass. 491. Hapgood v. Blood, 11 Gray, 400.

In this case, the mortgagees made an arrangement with Moses C. Porter in reference to the occupation of the farm. If the effect of that arrangement was to make him their tenant at will, that tenancy could not be assigned to Augusta, and she did not become a tenant at will in his place by the purchase of his equity of redemption. Augusta entered into occupation on November 11, 1876, without the knowledge of the mortgagees, and this occupation continued without their knowledge until the tobacco crop of 1877 was severed from the land. When afterward they learned of her occupation, they informed her that they had taken possession under their mortgages for breach of condition, and in order to take the rents and profits, and that the crops raised belonged to the mortgagees, and that those who raised them were entitled to a reasonable compensation for their labor; and they claimed the tobacco crop of 1877, and forbade her to use it to pay her debt to the plaintiff. This evidence did not tend to prove a letting or demising of the farm to Augusta, or . an agreement that the tobacco crop of 1877 should be hers, or an authority to her to use the crop in the payment of her debts. The plaintiff’s title is derived from the delivery to him in July 1878; for the promise of Augusta, at the time of the loan, to pay him out of the crops generally, would give him no title to the tobacco. At the time of this delivery, the plaintiff was informed that the mortgagees claimed the tobacco, and forbade Augusta to dispose of it; so that there is no ground for contending that the defendant is estopped from showing the true state of the title, by reason of any apparent ownership with which he had invested Augusta.

The special finding of the court is, “ that after November 11, 1876, Augusta A. Porter occupied the farm until the spring of 1879, by permission of said mortgagees, as a matter of mutual convenience, thus becoming a tenant at will of said mortgagees, and holding the farm in subordination to their rights of possession.” A tenant at will, strictly so called, while his tenancy continues, has a lawful possession, and may maintain trespass quare clausum against his landlord. Dickinson v. Goodspeed, 8 Cush. 119. Such a tenancy is created by contract, whereby the premises are let or demised by the landlord to the tenant. The contract may be express, or it may be inferred from circumstances, but it must exist. Edwards v. Hale, 9 Allen, 462. Emmons v. Scudder, 115 Mass. 367.

Whether a tenant at sufferance, occupying by permission of his landlord, but without any agreement with him to occupy, was liable in this Commonwealth before the Gen. Sts. c. 90, § 25, in assumpsit for use and occupation, is a question which is in doubt; Merrill v. Bullock, 105 Mass. 486; but permission merely by the landlord to a tenant at sufferance to occupy, does not create a tenancy at will. There must be an agreement shown, whereby the one agrees to hold, and the other to permit him to hold, the possession of the premises. Edwards v. Hale, ubi supra. A mortgagor and his assigns before entry by the mortgagee are not liable to pay rent, or to an action for use and occupation, unless by virtue of an agreement to pay rent or to occupy as a tenant. Hastings v. Pratt, 8 Cush. 121. Wilder v. Houghton, 1 Pick. 87.

Whether, since the Gen. Sts. c. 90, § 25, a mortgagee after entry to foreclose can maintain against his mortgagor an action for use and occupation, in the absence of any agreement to pay rent, has not been decided. Morse v. Merritt, 110 Mass. 458.

We are uncertain whether the court found that there was an agreement between the mortgagees and Augusta, whereby they demised the farm to her, or a mere permission by them to her to occupy it in subordination to their rights of possession; but, whatever construction may be put upon the finding, we are of opinion that, upon the facts found, the plaintiff was not entitled to recover. Exceptions sustained.