Merriam v. Merriam

Dewey, J.

The first objection, taken to the right of the de mandant to maintain this action, is, that at the time of instituting the same, he was in possession of a part of the demanded premises, and that pending this action he has acquired the possession of the residue, and being thus actually ;n possession of the entire mortgaged premises, he cannot now properly proceed to take a judgment for the recovery of the same from the tenant.

It is true, that in ordinary writs of entry, it may be set up in defence, that the demandant has the actual and peaceable possession of the demanded premises, and that the tenant has not, nor has had, any possession thereof; and unless in the case of a disseisin at the election of the plaintiff, such defence will avail. So, also, in case the demandant voluntarily acquires the actual possession of the premises pending the *93action, upon a proper plea being filed, the defence may be maintained against further proceedings in the case.

But this rule does not apply, where the action is instituted solely to foreclose a mortgage. Mere possession in the mortgagee will not perfect his title and vest in him the absolute estate. To foreclose a mortgage, further proceedings are necessary ; and such foreclosure may be effected in two modes. One mode is the making of a formal entry upon the premises, in the presence of two witnesses, declaring the purpose of such entry, and doing the further acts required by the provisions of Rev. Sts. c. 107, § 2, or procuring the certificate of the mortgagor acknowledging such entry, and having the same duly recorded. The other mode is that of. an action to foreclose, instituted in the proper tribunal. This latter mode has certain advantages, and may often be the more convenient mode of foreclosing a mortgage. It is particularly so in this respect, that in the action to foreclose, the amount due on the mortgage is settled conclusively.

The statute regulating the foreclosure of mortgages has authorized the mortgagee to adopt either of these modes ; and this privilege attaches as well to a mortgagee in possession, as to one who has not made an entry; and such action to foreclose may be maintained, notwithstanding the premises are at the time in possession of the plaintiff. Rev. Sts. c. 107, §§ 10, 11. The exceptions to the ruling of the court of common pleas, as to this point, are overruled.

But as to the other ground, that no breach of the condition has been shown, we think the facts not sufficiently presented in the bill of exceptions; and the case will be remanded to the court of common pleas for a hearing and adjudication on that matter.