Mason v. Mason , 1878 Me. LEXIS 18 ( 1878 )

Peters, J.

Every mortgagee may recover possession of the mortgaged property before a breach of the condition in the mortgage, when there is no agreement to the contrary. R. 8., c. 90, § 2. Such agreement, inasmuch as it affects the title to real estate, must be evidenced by some writing. Norton v. Webb, 35 Maine, 218.

The tenant contends that such an agreement is clearly implied from the words of the mortgage itself. The conditional clause requires that the mortg ager shall provide a comfortable home for the mortgagee, and furnish her sufficient food and clothing, medical attendance and nursing, and other necessaries during her natural life. The deed admits of no such construction. The mortgager is under no necessity to support the mortgagee upon the mortgaged premises, nor can the mortgagee require that she shall be supported there. There is no intimation in the mortgage that the use of the land mortgaged is to be enjoyed by the mortgager to enable him to furnish the required support there or elsewhere. The opinion and reasoning of the court in Allen v. Parker, 27 Maine, 531, must be conclusive of this case, unless overruled. As to the place where the support may be provided, see: Wilder v. Whittemore, 15 Mass. 262; Hubbard v. Hubbard, 12 Allen, 586, 590.

All the cases in this state, wherein it has been held that a mortgager may retain the possession, are clearly distinguishable from this. In Lamb v. Foss (21 Maine, 240) the mortgager was to render a share of the crops, or support the mortgagee upon the farm. In Brown v. Leach (35 Maine, 39) he was to maintain the mortgagee on the farm and keep it in good order. In Norton v. Webb, supra, he was to support the mortgagee in the house upon the premises if he chose to do so, and he so elected. In Bryant v. Erskine (55 Maine, 153, 156) the court say, arguendo, that the mortgager was entitled to possession ; but there the mortgage prescribed that a particular portion of the premises should be occupied by the mortgagees. Some other courts, we are aware, have given a more liberal interpretation to this class of mortgages than this court has, but we think it best to adhere to our own well established rule. There is really no more hardship in a dispossession of the mortgager in this case, than there is in ordinary cases where there has been no breach of the condition of the mortgage. If the mortgagee holds possession of the premises here (presumably a house and not a farm, from the description), the rents received by her or their value must be accounted for towards the support required to be rendered. Parties must stand by their agreements deliberately entered into.

Section 9, c. 90, N. S., does not apply here. It is therein provided that, if it appears that nothing is due on the mortgage, judgment shall be for the defendant. This is intended for a case where a mortgage has been fully satisfied or paid. That defense is made out when it appears that nothing is due or is ever to b e due. “Nothing due,” does not mean nothing payable merely.

Under the case as presented, the demandant is not entitled to a conditional judgment; nor does she ask it. She is entitled to possession.

Judgment for demandant.

Appleton, 0. J., Dickerson, Daneobth, Virgin and Libbey, JJ., concurred.