The errors assigned in this case question the correctness of certain instructions given and refused by the court below. It appears that under the proceedings to foreclose the mortgage, the plaintiff entered into possession of a portion of the premises on the 15th day of March, 1851, and that defendant had a right, at any time within one year from that date, to redeem the same. The court instructed the jury, that this suit did not open the foreclosure; and that in making up their verdict, they should ascertain the amount due upon the-mortgage on the 15th of March, 1852; then ascertain the amount of the incumbrances; add these two amounts together, and from this deduct the value on that day of the two tracts of land of which the plaintiff received possession, and credit the mortgage with the remainder; and that the balance due after such credit, would be their verdict. The defendant insists that this instruction is erroneous. We are unable, however, to see why he should object to it. Instead of foreclosing, as we do under our laws, by a sale of the mortgaged premises, it seems that plaintiff claimed the possession because the condition attached to the deed had been broken, by the non-payment of the first installment of money secured thereby. The decree' of the court found that said condition had been broken, and that plaintiff was entitled to such possession. Under the law, however, defendant had one year within which to redeem. Having failed to redeem, the title of the plaintiff became perfect, just as under our law it would have done by the sale, and failure to redeem the mortgaged premises. The testimony shows, that from March, 1851, (the date of the plaintiff’s entry,)- until March, 1852, (the expiration of the year for redemption,) the premises increased in value. This instruction gives to defendant the benefit of this increased value, and so far he certainly has no reason to complain. After the expiration of the year for redemption, he had no further right to the land; and he could, therefore, claim no advantage from any subsequent appreciation in value. So far as the instruction lays down the rule,.that this suit does not open the foreclosure, there can certainly be no just excep*313tion. The proceeding to foreclose the mortgage was for the installment then due. The amount sued for in this case, was not due at that time. The amount then fouild to be due and owing by that adjudication, is not open for investigation in .this case. The plaintiff having foreclosed by taking possession, instead of by sale, he should only be held for the value of the premises so entered upon, and ¡pro tanto, defendant was entitled to a credit on said mortgage. This was allowed him under this instruction. See West v. Chamberlain, 8 Pick. 338; Marshall v. Bryant, 12 Mass. 321; Hunt v. Styles, 10 N. H. 466 ; Ewer v. Hobbs and wife, Metc. 5; 4 Kent, (8th ed.) 183; Lovell v. Leland, 3 Vermont, 581.
But it is said that the bringing of this suit opens the foreclosure, and that defendant has the right to redeem the land so entered upon, by paying the full amount of the mortgage debt. To this view there are, to our minds, two conclusive objections. The first is, that this suit is not brought to recover the same sum of money which was claimed by the foreclosure proceedings, but for. another and different installment. The case of Batchelder v. Robinson, 6 N. H. 12, referred to by appellant, shows that there was payment and acceptance of the money by the mortgagee, after foreclosure, and this was held to waive or open such foreclosure./ The distinction between that case and the one before us, is too manifest to need Comment. The second objection to the position of the appellant is, that there is nothing to show, nor is there any pretence, that- he has paid, or offered to pay, the amount due on the mortgage, or any part thereof.
The court below also instructed the jury that the premises included in the mortgage, which were' not entered upon by plaintiff, were thrown back upon defendant. This is assigned for error by appellant. No objection has been pointed out to it, however, and we are unable to see any. Had the premises named in the . mortgage been offered for sale under the proceedings to foreclose, the mortgagor would only have been entitled to credit for the amount, for which any one or more parcels might have sold, and not for the *314value of those which did not sell. The plaintiff’s entry, in the language of the court below, “ was a process to compel payment; and if, instead of taking possession of all the premises, he entered upon a part only, he is not to be held for the value of those parcels upon which he did not enter. And when he sues for a second installment, defendant cannot complain, if the land not entered upon, is thrown back to him; and plaintiff is held to have waived by-such suit, the right to enter upon such land.” It is next objected, that the court instructed the jury that defendant should not be allowed anything for the rents and profits of the premises. We can see no possible objection to this instruction. Defendant never redeemed the premises. After his failure to redeem,-plaintiff’s title to the land was indefeasible and perfect,- without any right in the defendant to claim for rents and profits during the year intervening between the entry and the expiration of the right to redeem.
'■ In the last place, it is insisted, that the court erred in refusing to give certain instructions asked by defendant. Some of these have been sufficiently noticed, in what has ¿Iready been said, and as to the others, we need only say that they were not pertinent to the case made by the proof, and were, therefore, correctly refused. Hammett v. Russ, 4 Shep. 171; Nealy v. Brown, 1 Gilm. 15 ; Whitaker v. Pullen, 8 Humph. 466; Miller v. Gorman, 5 Blackf. 112.
Judgment affirmed.