24 Me. 185 | Me. | 1844
The opinion of the Court was drawn up by
It has been held by Courts in. several of the
The doctrine of the common law, in the time of Lord Coke, that land conveyed in mortgage passes presently to the mortgagee, and that the mortgagor has only the condition left, and no estate in the land, which he can assign over, has been essentially changed by statutes and the adoption, by the Courts of common law, of the principles by which Courts of equity are governed. Lord Mansfield, in Martin v. Mowlin, 2 Bur. 969, is reported to have said, “ that a mortgage is a charge upon the land, and whatever would give the money will carry the estate in the land along with it to every purpose. The estate in the land is the same thing as the money due upon it; it will be liable to debts; it will go to the executors; it will pass by will not made and executed with the solemnities required by the statute of frauds. The assignment of the debt and forgiving it, will draw the land after it, as a conveyance ; nay, it would do it, though the debt, were forgiven only by
If the mortgagee resort to an action to obtain possession after breach of the condition, the Court can render only a conditional judgment; and are to determine what is due in equity and good conscience ; and if that sum is paid in two months, there can be no writ of possession. And if there be nothing due, the result must be the same; and the action will be utterly fruitless. “ The plea of payment and satisfaction, after the day, is a good bar to any suit by the mortgagee, after condition broken, for possession of the estate.” Vose v. Handy, 2 Greenl. 322; Gray v. Jenks & al. 3 Mason, 520. In Fay v. Cheney, 14 Pick. 399, the Court say, “the remedies designed for the mortgagee were such as to enable him to obtain payment of the debt, or an indefeasible title to the estate pledged for its security, but not both.” Entry of the mortgagee after the condition is broken is not payment of the debt or any part of it; the mortgagee notwithstanding his possession can assert his right to payment on his personal security, if he have such, and the entry and possession is no bar, the whole being but a process to compel payment. West v. Chamberlain, 8 Pick. 336; Portland Bank v. Fox, 19 Maine R. 99.
It has been determined, that by general principles relating to mortgages, confirmed by the statute of 1788, c. 51, of which the statute of this State, passed in 1821, c. 39, <§> 9 & 10, is a transcript, the heirs of a deceased mortgagee have not such an interest in the lands as will entitle them to enter or to have an action upon the mortgage for condition broken. For as the debt belongs to the executor or administrator to be administered according to law; so does the mortgage which is only security for the debt. Smith & al. v. Dyer, 16 Mass. R. 18; Dewey & al. v. Van Deusen, 4 Pick 19. In Fay v.
The result is to be drawn from the principles, which we have considered, that the breach of the condition in a mortgage in no respect changes the nature of the estate in the respective parties. Notwithstanding such breach, the mortgagor is still considered the owner against all but the mortgagee ; he may sell and convey the fee; may lease the land, if in possession ; and in every respect deal with it as his own. The equity of redemption remains little, if at ail, affected by an entry of the mortgagee, after breach of the condition; the rights of the mortgagor are not essentially impaired till foreclosure. It may bo taken on execution against the owner and disposed of as well after as before such entry; and the interest acquired by the creditor differs in no respect from that which he would have obtained, if made before breach of the condition. The mortgagee, by his entry, acquires no absolute interest presently, which he would not have done by taking possession before the breach of the condition. In both cases he would hold the land subject to redemption and be obliged to account strictly for the net value of the rents and profits; if they should be equal to the amount of the debt secured by the mortgage, before the expiration of the time necessary to work a foreclosure, the mortgage would be discharged thereby as effectually, as by any other mode of payment. In the view of a court of equity, the rents and profits arc incidents de jure to the ownership of the equity of redemption. Gordon v. Lewis
In the case at bar, the attachment upon mesne process in favor of the defendants against Preston, made after his entry for breach of the condition and before foreclosure, was a nullity. The levy of the execution was subsequent to the conveyance by quitclaim deed, duly acknowledged and recorded, of Preston to the demandant’s ancestor, which was a valid assignment of the mortgage, and there was nothing upon which the levy could rest.
It is however insisted by the defendants, that the deed from Norton to Preston was not a mortgage, inasmuch as there was no personal obligation given for any debt, from the former to the latter. A mortgage is the conveyance of an estate byway of pledge for security of a debt, and to become void on the payment of it. 4 Kent’s Com. 129. “ It is none the less a mortgage because there was no collateral personal security for the debt taken at the time.” Rice & al. v. Rice, 4 Pick. 349. If at the time of making a conveyance, the grantor take a bond of defeasance, the transaction is a mortgage. Taylor v. Weld & al. 5 Mass. R. 109, and in the case cited there was no collateral personal security for the debt. The defendants offered the execution issued upon the conditional judgment in favor of Preston against Norton, and the return thereon, that seizin and possession was delivered to the former. But for that possession, they do not argue that they have a defence, and yet that execution is upon a judgment, when the Court adjudged a debt to be due and payable from Norton to Preston.
The defendants must be defaulted.