Welch v. Adams , 42 Mass. 494 ( 1840 )

Dewey, J.

The cases cited by the counsel for the plaintiff only establish the doctrine, that an entry by a mortgagee for foreclosure, to be effectual for that purpose, must be an entry with notice in fact to the mortgagor; or, what is equivalent, an open, notorious and continued possession. The statute provisions on this subject have, since those decisions, been somewhat varied by the Rev. Sts. c. 107, §§ 1 & 2, requiring notice of an entry for condition broken to be recorded in the registry of deeds. Whether such record is of itself to be deemed sufficient notice to the mortgagor, it is Unnecessary now to decide ; as the right of the mortgagee, in the present case, to make an entry under his mortgage, and to take the rents and profits afterwards, does not depend upon his having made an entry that will be effectual as an entry for foreclosure. An entry by a mortgagee, without notice to the mortgagor, is a legal entry, and will authorize the retaining of the possession and the taking of the rents and profits. Reed v. Davis, 4 Pick. 216.

The present defendant originally entered into the occupation of the premises, as lessee under one holding the rights of the mortgagor, but of course subject to the prior right, vested in' tire mortgagee, to enter by virtue of his mortgage; and such entry having been made by him, the defendant very properly acknowledged him as his landlord, and as such entitled to receive the future accruing rents. The case of Smith v. Shepard, 15 Pick. 147, seems to us to be an authority strongly bearing upon this point. In that case, the mortgagor had leased the premises for a term of years, and the lessee had covenanted to pay him a certain annual rent; but pending the continuance of the lease, the mortgagee entered and threatened to expel the lessee unless he would agree to pay the future accruing rents to him. The lessee having so agreed, and thus becoming accountable to the mortgagee for the rent, it was held to be a good defence to an action by the mortgagor against the lessee on his covenants to him. And in the present case, the court are clearly of opinion that the facts disclosed show that the plaintiff is not entitled to maintain his action.

Plaintiff nonsuit.