Walker v. Thayer

113 Mass. 36 | Mass. | 1873

Ames, J.

The case finds that the title of the mortgagor had been duly conveyed to the defendant, who accordingly had the right of possession against everybody except the mortgagee. The note which the mortgage was given to secure was overdue and unpaid, and there was therefore a breach of condition. After such a breach of condition, an entry or an attempt to gain possession on the part of the mortgagee would be presumed to be for the purpose of foreclosure. Taylor v. Weld, 5 Mass. 109, 121. Ayres v. Waite, 10 Cush. 72, 79. The facts reported disclose nothing that at all conflicts with that presumption, and there is no reason to suppose that his purpose was to enforce part of. his rights only, instead of the whole. The rights of the mortgagee, after breach of condition, are clearly defined by Gen. Sts. c. 140. He may recover- possession of the mortgaged premises by action at law, or he may make an open and peaceable entry thereon, if not opposed by the mortgagor ór other person claiming the premises. The case finds that he was not able to obtain possession in the latter of these two methods, and therefore he is obliged to resort to his action at law. But it has repeatedly been decided that he cannot resort to the process of forcible entry and detainer for that purpose, and that the remedies of a mortgagee are of a different character, clearly marked out by law. Hastings v. Pratt, 8 Cush. 121. Larned v. Clarke, Ib. 29. Gerrish v. Mason, 4 Gray, 432. The .statute, while it provides a full and convenient remedy for the creditor, was also intended to provide certain important advantages to the party entitled to redeem, the benefit of which he must wholly lose in the form of action adopted by the plaintiff in this instance. The statute evidently contemplates a real action, in which the demandant counts upon his own seisin; and in xvhich the other party has a right to have the court inquire and determine how much is due upon the mortgage, and also has a right to have a conditional judgment entered, which delays for two months the issue of the execution, and which may materially facilitate the redemption of the mortgage. We are clearly of the opinion therefore that the process of forcible entry and detainer was not intended to apply to the case of a mortgagee seeking possession of the mortgaged premises, after breach of condition, or to add anything to the remedies specifically given him by the 140th chapter above cited.

It is true that a mortgagee may take possession and eject the mortgagor, before condition broken, unless there is an agreement to the contrary. Wales v. Mellen, 1 Gray, 512. And that this right is expressly reserved to him by Gen. St. 140, § 9. But it is safe to say that if under the statute he has such a right after a breach of condition, it can only be where there is affirmative evidence that the intended entry was not for foreclosure, and in the case before us there is no such evidence.

Judgment for defendant.