The opinion of the court was delivered by
Redfield, J.It has been decided in this State, that, in a case like the present, the payment of the mortgage money on the decree of foreclosure, pending the action of ejectment, will defeat the right to recover even nominal damages and costs, and that the defendant will be entitled to recover his costs. Burton v. Austin, 4 Vt. 105. This case was viewed by the court below as coming within the same principle, after the decree of foreclosure had expired and the plaintiff had taken possession of the premises, they being of sufficient value to pay the mortgage debt. But this, we think, was not a correct view. By the payment of the money, which the mortgagor has the right to make, the title of the mortgagee is taken away. And as the plaintiff in ejectment must not only have title at the commencement of his suit, but also at the time of judgment, the payment of the mortgage money defeats the action.
But here, by the decree becoming absolute and the entry of the mortgagee, the title becomes confirmed; so that the plaintiff had good title, both when he brought the suit and at the time of trial; and the fact, that the defendants had in the mean time surrendered the premises, will only operate to reduce the damages, like restoring goods in trespass, or trover. So that we do not see why the plaintiff was not entitled to a verdict for nominal damages and costs, which, to make themselves entirely safe, the defendants should have paid at the time they surrendered the possession.
If this judgment for the defendants in ejectment, which, by our statute, is made conclusive upon the title to the land, should be affirmed, it would, prima facie, divest the plaintiff of the title, and would, in any view, be a serious embarrassment upon the title, by *150compelling him to show the grouud upon which it was rendered, which would not appear by the record, unless this bill of exceptions had been filed.
Many other questions have been discussed at the bar, which it is not necessary farther to notice, than to say, that the mortgagee, after condition broken, may sustain ejectment for the premises against any one, and may recover damages against a stranger for the detention after notice to quit, and also against the mortgagor, or his tenant, unless in the mean time the debt and interest have been fully paid, to the time of the decree becoming absolute, — and after that, nominal damages and costs. Atkinson v. Burt, I Aik. 329. Lyman v. Mower, 6 Vt. 345. Babcock v. Kennedy, 1 Vt. 457.
Judgment reversed and case remanded.