Gilman v. Wills , 1877 Me. LEXIS 143 ( 1877 )

Virgin, J.

A mortgage of land, as usually drawn, is in form a deed of warranty with a condition subsequent defining the means by which the grantor may defeat the conveyance. The legal title, therefore, passes immediately upon the delivery of the mortgage; and the mortgagee is regarded as having all the rights of a grantee in fee, subject to the defeasance. Consequently he has the right of immediate possession of the premises, before condition broken as well as after, unless it otherwise appears, either expressly or impliedly, from the terms of the condition of the mortgage or other writing between the parties. Blaney v. Bearce, 2 Maine, 132. Brown v. Leach, 35 Maine, 39. Norton v. Webb, 35 Maine, 218. This doctrine, so well settled by repeated decisions, has been incorporated into the statutes of the state. R. S., c. 90, § 2.

The relation between mortgageor and mortgagee is not that of landlord and tenant. Reed v. Elwell, 46 Maine, 270, 279 ; Hastings v. Pratt, 8 Cush. 121; although they may by agreement create that relation. Marden v. Jordan, 65 Maine, 9. So long as the mortgageor, without the entry, of the mortgagee, continues in possession, his possession is rightful, but in the absence of any agreement to the contrary he is not liable for rent. Butler v. Page, 7 Mot. 40, 42. Neither, upon the entry of the mortgagee, is the mortgageor like a tenant entitled to emblements. 1 Wash. R. Prop. 124, § 21, and notes.

The case finds that the crops in question were planted by the mortgagee prior to his conveyance to the plaintiff. There being no reservation of them in the deed, and they not being severed from the soil at the time of the delivery of the deed, they with the soil became vested in . the plaintiff (Brown v. Thurston, 56 Maine, 126;) and by the mortgage they became revested in the defendants. Being the defendants’ they could enter and take them, but would be accountable therefor in ease of redemption of the mortgage. R. S., c. 90, § 2.

The gist of the action is unlawful entry. But in this case, the entry was lawful and covers the whole case. Lackey v. Holbrook, 11 Met. 458. Chellis v. Stearns, 22 N. H. 312. If the mortgageor would have the result otherwise, he could do so by a stipulation in the mortgage that he should remain in possession until default in the condition. Exceptions sustained.

Appleton, C. J., Walton, Peters and Libbey, JJ., concurred.