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TITLE CVIII.

Per Cur. in
Erskine v. Townsend,
2 Mass. Rep. 495.

Ibid.

Stat. 1785, c. 58, s. 1, and 1763, c. 55, s. 1.

2 Bl. Com. 158.

MORTGAGES.

A MORTGAGE in fee is an estate defeasible by the performance of the condition according to its legal effect. This condition may be either annexed to, and a part of the deed conveying the estate, or it may be contained in another deed, executed at the same time; and part of the same transaction, and providing that the estate, recited to have been conveyed, is to be defeated upon the performance of the condition. (1)

The mortgage must be founded on a legal and sufficient consideration. If it have, for its foundation, a gaming or an usurious contract, it is void.

So long as this estate remains conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage.

1. Of the relative interests of the mortgagor and the mortgagee in the mortgaged estate.

2. Of the mode of declaring by the mortgagee in an action to recover possession of the mortgaged estate; and herein of the judgment in such action.

3. The manner of discharging mortgages.

4. Of discharging mortgages made to the commonwealth.

5. Of the equity of redemption.

(1) The equitable powers of the S. J. C. do not extend to relieve mortgagors in any other cases than those in which the condition is a part of the deed of conveyance, or is contained in a deed of defeazance of that conveyance. Per Cur. in Erskine v. Townsend, 2 Mass. Rep. 495.

I. Of the relative interests of the mortgagor and the mortgagee in the mortgaged estate.

Newall et al. v.

3 Mass. Rep. 152.

When a man, seized of lands in fee, shall mortgage Per Cur. in them in fee, if there be no agreement that the mortga- Wright, gor shall retain the possession, the mortgagee may enter immediately, put the mortgagor out of possession, and receive the profits; and if the mortgagor refuses to quit the possession, the mortgagee may consider him as a trespasser, and may maintain an action of trespass against him, or he may, in a writ of entry, recover against him as a disseizor.

But there may be an agreement, that the mortgagor shall retain the possession until the condition be broken, which shall bind the mortgagee; in which case the mortgagor may demise the estate to a stranger, and receive the rents to his own use.

And, upon the same principle, the mortgagee, if he consent to take a lease from the mortgagor, and covenant to pay him rent until the condition be broken, shall be bound by his covenant; and shall not be admitted to set up his covenant against the lease. The demise is, in law, an agreement, that the mortgagor shall retain the possession, and receive the profits to his own use.

But if one demise an estate for a term of years, reserving rent, and afterwards mortgage the same estate to the lessee in fee, and the mortgagee refuses to pay the rent, the rent is suspended until the condition be performed, or the estate redeemed: during the suspension, the lessee will be accountable for the profits, as mortgagee, toward the discharge of the interest and principal of the debt; if he voluntarily pay the rent, he shall not afterwards be accountable, as mortgagee, for the profits for the same time.

Ibid.

Ibid.

Ibid. 138.

Our statute, granting equitable relief to a mortgagor, provides, that he may redeem, at any time, within three Ibid. 155. years after the entry of the mortgagee, for the condition

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Per Cur, in

2 Mass. Rep. 495.

broken, in the presence of two witnesses, or by judg ment at law. Generally, a mortgagee, when the mortgaged lands, without the profits, is a sufficient pledge for the debt and interest, does not chose to enter and take the profits, for which he must account, until after condition broken. His entry, then, is to compel payment, by threatening to foreclose the mortgage.

But at the common law, if there be no agreement that the mortgagor retain the possession, the mortgagee has a legal right immediately to enter and put the mortgagor out of possession. And this right the statute, fixing the time when the three years shall commence, has never been construed to controul. When the mortgagee enters after condition broken, the three years commence on that entry. If he enter before, the three years do not commence until notice by the mortgagee to the mortgagor, after the condition broken, that he shall hold the possession for the breach of the condition.

The mortgagor, by performing the condition, accordLesk ne v Townsend, ing to its legal effect, may defeat the estate at law, and if the mortgagee be in possession, he may enter upon him, or eject him by a writ of entry, his title now being absolutely void. Thus it appears, that until the condition be broken, the rights and remedies of the parties are legal and not equitable.

Amory v. Farbanks
et al.

3 Mass. Rep. 562.

Ibid.

A mortgagee, who has entered for condition broken, may afterwards have an action upon the bond, and he will recover the difference between the value of the land, according to appraisment, and the amount of principal and interest on the bond.

II. Of the mode of declaring by the mortgagee in an action to recover possession of the mortgaged estate; and herein of the judgment in such action.

The entry of the mortgagee may be either in pais, or in execution of a judgment in a real action. If the action be brought before condition broken, the mortgagee

may count, generally, on his own seizin and the disseizin of the defendant; and if he obtain judgment before condition broken, the judgment will be at common law, and not upon the statute. (2)

If the action be brought after condition broken, the mortgagee must sue a special writ of entry. Instead of declaring generally on his own seizin and on a disseizin by the mortgagor, he must count either on a seizin in fee and in mortgage, so that it may appear that he claims to be tenant in mortgage, or he must allege a seizin in the mortgagor and a conveyance to himself by deed, which he must plead with a profert; so that, on inspection of the deed, it may appear to convey an estate in mortgage. The former manner of specially declaring is good in all cases, but necessary where the condition appears in a defeazance not in the possession of the mortgagee. The latter manner is sufficient, when the condition is a part of the deed of conveyance.

Ibid. 496.

Ibid.

c. 22.

If the mortgagee is entitled to judgment in this action after the condition be broken, the court will liquidate the See also Stat. 1785, sum remaining due on the mortgage, and enter a conditional judgment, (3) that the plaintiff have seizin, unless the mortgagor pay the sum with interest, and the costs of suit in two months. If the money be not paid in that time, the mortgagee will sue out his execution, and the three years for redemption will commence on his having seizin delivered to him.

As by the statute of 1785, c. 22, the mortgagee can

Erskine v. Townsend,

have no judgment after the condition is broken, but this Per Cur. in conditional one; thence results the necessity of his de- 2 Mass. R:p. 496,477. claring as mortgagee to bring himself within the statute. And it has been formerly settled by the S. J. C. that if he declare generally, and the mortgagor shall plead in (2) 1785, c. 22.

(3) The conditional judgment on a mortgage shall be for the amount of principal and interest due, though it exceed the penalty of the bond. Pitts v. Tilden, 2 Mass. Rep. 113.

VOL. III.

16

Stat. 1733, c. 37, s 6.

Toid.

Stat. 1394, c. 102, s. 1.

bar, that the mortgagee is seized as tenant in mortgage only, the condition of which is broken, the action will be barred.

III. The manner of discharging mortgages.

By statute, any mortgagee of any lands, tenements or hereditaments, his or her heirs, executors or administrators, having received full satisfaction and payment of all such sum and sums of money as are really due to him by such mortgage, shall, at the request of the mortgagor, his heirs, executors or administrators, acknowledge and cause such satisfaction and payment to be entered in the margin of the record of such mortgage, in the register's office, and shall sign the same, which shall for ever after discharge, defect and release such mortgage, and perpetually bar all actions to be brought thereupon in any court of record.

And if such mortgagee, his heirs, executors or administrators shall not, within ten days next after request in that behalf made, and tender of his reasonable charges, sign and seal a discharge of the said mortgage, and release and quit claim to the estate therein mentioned to be granted, and acknowledge the same before a justice of the peace, or repair to the register's office, and there make and sign such discharge and acknowledgement as aforesaid, he shall be liable to make good all damages for want of such discharge or release, to be recovered by a special action of the case, in any court of record, together with treble costs of suit.

IV. Of discharging mortgages made to the commonwealth.

By statute, whenever any mortgagor, who shall have mortgaged any real estate to the commonwealth, his executors, administrators, heirs or assigns, shall pay into the treasury the full sum due on such mortgage, the treasurer may, and it shall be his duty to seal and sign a

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