Hurd v. Coleman , 42 Me. 182 ( 1856 )

Appleton, J.

The proof is undisputed, that the plaintiff, holding notes, and a mortgage for their security, on certain premises in the town of Unity, commenced suits on one of the notes, and on the mortgage, which were duly entered at the March term, 1833, of the Court of Common Pleas, holden in and for the county of Waldo; that on the 6th of September, 1835, and while these actions were pending, he assigned the notes and conveyed by deed his interest in the mortgaged premises to Hiram Hurd, jr.; that these actions were continued upon the docket till March term, 1836, when judgments were rendered for the plaintiff in each action; that the assignee of the mortgage, finding the mortgaged premises vacant, with the knowledge and consent of the defendant, and for the purposes of foreclosure, entered into possession thereof, about'the 18th of April, 1836, between the rendition of judgment and the 22d of July following, when the writ of possession issued; that the assignee continuing in possession, the defendant, at the July term, 1839, filed in this Court a bill in equity for the redemption of the mortgaged estate against the present plaintiff and his assignee Hiram Hurd, jr.; that they severally appeared and filed answers thereto; that this bill not having been successfully prosecuted, said Hiram continued in possession till sometime in 1840, when he sold the premises for nearly two hundred dollars more than the amount due on the mortgage notes; and that his grantee, and those claiming under him, have remained in undisturbed possession thereof from that to the present time.

Upon these facts, the defence relied upon, is, that the mortgage to the plaintiff has been foreclosed, and being foreclosed, that the mortgage debt and the costs accruing upon the notes and the mortgage in their enforcement, have been paid by the foreclosure; and, therefore, that this action is not maintainable.

It seems well settled that a party, having his legal rights to real estate determined by the judgment of a court of law, may enter as well without as with the intervention of an officer; and that such entry will be equally valid and effectual for all purposes, as if an officer having the execution had put the party in whose favor it was rendered, in possession. “But,” says Holt, C. J., in Withers v. Harris, 2 Ld. Raym. 806, “he must take care that he do not enter with force.” “ That a man who has a judgment for possession,” remarks Parsons, O. J., in McNeil v. Bright, 4 Mass., 282, “may enter without a writ, is common learning, and indeed is not denied.” In Gilman v. Stetson, 16 Maine, 124, this Court held that where judgment has been rendered for the land demanded, in favor of the demandant, by a court of competent jurisdiction, and he has made an actual entry, his title and seizin is thereby established, although no writ of possession has issued. These views subsequently received the sanction of this Court, in Gilman v. Stetson, 18 Maine, 428, and in Phillips v. Sinclair, 20 Maine, 269.

By the statutes of 1821, c. 39, § 1, which were in force, the mortgagee may enter into the mortgaged premises and foreclose the mortgage in three years, “ provided, however, that the entry above described shall be by process of law, or by the consent in writing of the mortgager, or those claiming under him, or by the mortgagee’s taking peaceable and open possession of the premises mortgaged in presence of two witnesses.”

Had the entry in the present case been by the mortgagee, after the writ of possession issued, or even after the time within which, by law, it should have issued, it is apparent that such entry would be regarded as “ by process of law,” and would be equally effectual to foreclose the mortgage, as if he had been put in possession by an officer having the writ of possession.

The entry being by an assignee after judgment, and before the writ of possession issued, or could legally issue, can it be regarded as an entry under and by “ process of law,” so as to be available against the defendant, as a foreclosure ?

The mortgage notes and the mortgage were assigned to Hiram Hurd, jr., while the suits, for the collection of the note and for the possession of the mortgaged premises, were pending. The assignee, by virtue of his assignment, might prosecute these suits to final judgment, in the name of the assignor and for his own benefit. The judgment obtained, and the estate vacant, no reason is perceived why the assignee, succeeding to the rights of the assignor, might not enter upon the premises, nor why his entry should not justly be regarded as “by process of law,” his title having been duly recorded. It was held, in Cutts v. York Manufacturing Co., 18 Maine, 191, where the assignees of a mortgage, after having entered to foreclose, had released their interest in the mortgaged premises to the assignor, that he might avail himself of the entry to foreclose, made by the assignees, equally as they might if the mortgage had remained in their hands. So a mortgage may be assigned after an entry for the purposes of foreclosure, and the assignment will not, of itself, stay the foreclosure. Deming v. Cummings, 11 N. H., 475. So, if the assignee of a mortgage obtains a conditional judgment against the purchaser of the equity, and executes a writ of possession, and the owner of the equity thereupon becomes the tenant of the assignee, agreeing to pay him rent; a possession thus held during the time required by the statute, will foreclose a mortgage. 11 N. H., 475.

The entry of the assignee was open, peaceable, and with the assent of the mortgager. It was after the rendition of judgment and before the writ of possession. “ It was held in this Court,” says Holt, C. J., in Withers v. Harris, 2 Raym. 806, “ that the plaintiff might enter pending the writ of error upon the judgment in ejectment, if he could find the possession empty; for the writ of error binds the Court but not the right of the party.” After the writ of possession, the assignee of the mortgage still occupied the mortgaged premises. From the time when that issued, he could protect and justify his possession “by process of law.” It is apparent from the facts, that the defendant, in 1839, filed a bill in equity for the redemption of these premises, and, from the answers of the plaintiff and his assignee, who were both parties, and whose answers are admissible in evidence, that the defendant was fully aware of the entry of the assignee and of the purposes for which it was made. He was bound to know of the judgment rendered against him and of its legal effect. He was bound to take notice of the issuing of the writ of possession, or when by law it might issue. The assignee must be regarded as being in possession, by process of law, after the writ of possession issued; and, as the defendant had full knowledge of these proceedings, the foreclosure may be considered as commencing at that time and as having been perfected after the expiration of three .years from that date'.

The assignee of the mortgage, Hiram Hurd, jr., and those claiming under him, have been in undisturbed possession of the premises for more than twenty years, without any interference on the part of the defendant, except his ineffectual effort to redeem by his suit in equity in 1839. It is a well settled rule in equity, that twenty years undisturbed possession by the mortgagee or his assignees, operates as a bar to the right of redemption, unless the mortgager can bring himself within the proviso in the statute of limitation. Phillips v. Sinclair, 20 Maine, 269.

The foreclosure being perfected, and the mortgaged premises being taken in payment and exceeding in value the mortgaged notes, they must be deemed as paid.

The only remaining inquiry is as to the costs in the suits, for the purpose of foreclosing the mortgage, and on one of the notes thereby secured. Costs necessary for the enforcement of the rights of the creditor, may be regarded as incident to the debt. The lien of the mortgagee, upon the premises mortgaged, attaches equally for the debt and for the costs necessarily incurred in the enforcement of the rights of the creditor. It is in consequence of the neglect of the debtor that resort is ever had to legal process. The party imposing this necessity is not to avoid or escape the consequences of his omission to perform his contracts. The estates of the mortgager are justly chargeable with the costs which the mortgagee necessarily incurs in protecting his rights and enforcing his claims against a reluctant or dishonest debtor. Jones v. Phelps, 2 Barb. Eq. 440; Cox v. Wheeler, 1 Paige, 248; R. S., c. 125, § 9.

As the estate mortgaged is shown to have exceeded in value the mortgage debt, and the costs accruing in attempting to enforce its payment, the judgments in suit have been paid, and consequently this action is not maintainable.

Plaintiff nonsuit.

Tenney, C. J., and Rice, Hathaway, Goodenow and May, J. J., concurred.